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The opinion of the court was delivered by
Holmes, C.J.:
This is an appeal and cross-appeal from various orders and judgments of the trial court in a dissolution of marriage proceeding. The petitioner in the divorce action, Aileen M. Cray, appealed from the district court’s orders (1) selecting the date of the parties’ separation as the valuation date of marital assets; (2) failing to award profits and/or losses upon certain pension plan assets; and (3) awarding child support. The respondent, Thomas M. Cray, cross-appealed from the court’s orders regarding (1) maintenance; (2) assessment of certain litigation expenses; and (3) modification of his settlement proposal. The Court of Appeals affirmed the district court’s orders and judgments in part and reversed in part, remanding the case with directions to the trial court to reweigh the evidence as to property division and maintenance using a different valuation date. In re Marriage of Cray, 18 Kan. App. 2d 15, 846 P.2d 944 (1993). Both parties filed petitions for review. We granted Aileen’s petition for review on the issues of the selection of a valuation date for marital assets and whether profits and/or losses should have been allowed on her share of the pension plan assets. We denied the petition for review of Thomas. For the sake of clarity, the petitioner will be referred to as Aileen and the respondent as Thomas.
The parties were married August 19, 1970, in Davenport, Iowa. Although two children were born of the marriage, only Thomas Michael Cray, Jr., age 12, remained a minor at the time of trial of this action.
A review of the record reveals Aileen left the marital home and relationship on December 31, 1987. In August of 1988, she filed an action for separate maintenance, which was later amended to an action for divorce. That divorce action was voluntarily dismissed by Aileen in February 1990 because she was not ready for trial. Shortly thereafter, in April 1990, she filed the present action for divorce, alleging grounds of incompatibility. K.S.A 60-1601(a)(1).
The divorce was bitterly contested by both sides, with over 1,000 items of property and debt, ranging from the trivial (silver dust cloth worth 10 cents) to the substantial (marital residence worth $87,000), being brought before the trial court for division. The custody of the minor child had previously been settled between the parties, with Aileen designated the residential parent in a joint custody arrangement. The parties contested the date of valuation of marital assets at trial, with the court finding from the trial testimony that the parties had essentially gone their separate ways from December 31, 1987, and that date was selected and used by the court in determining asset valuation.
The trial court declared the parties divorced as of November 20, 1990, at the end of the trial but took the issues regarding property and debt division under advisement. The trial court issued its memorandum decision on January 22, 1991, regarding the issues taken under advisement, set out the orders of the court, and directed Thomas’ attorney to draft the journal entry. Thereafter, numerous motions were filed by the parties and ruled upon, with the final journal entry being filed on July 22, 1991. On October 9, 1991, motions by the parties for the trial court to reconsider, alter, or amend the judgment were denied.
The trial court in its memorandum decision cast more light on the history and unfortunate course of this unseemly divorce proceeding, stating:
“The parties to this action have presented to this Court a nearly impossible task of equitably dividing very nearly one thousand separate items of property and debt. Close to 120 items, substantial and inconsequential, are at issue as to possession and an untold number are at issue as to value. The Court has been called upon to determine such things as who is to get nine Large Round Crocheted Doilies and whether or not they are worth $5.00 or $7.00 or an average. Or, who gets the French Bread Basket and whether it is worth 50 cents or $1.00 dr an average. Or, who gets a collection of cookbooks and whether they are worth nothing or $5.00. And on, and on, and on. From baby spoons, wedding gifts, and a bud vase worth 25 cents to a honey jar, cheese slicer, silver polishing cloth worth 10 cents, and a house worth $87,000.00.
“The Court has tried repeatedly to strike out on its own and strike an independent equitable balance, only to be stymied by the vast number and quantity of tasks in dividing up and assigning values with little or no evidence bearing on value of items that range from the sublime to the ridiculous, and little or no definitive direction from the statutory and case law guidelines in this long term marriage of competing interests. This Court has never experienced a dissolution of marriage so trivialized and drowned in the division of property. It is apparent from the evidence that thousands of dollars have been spent for attorney fees on a vast array of items that would bring only several hundred dollars all together on the open market if sale were ordered by the Court.
“With the only other option available to the Court being the forced sale of ALL property and the division of the pittance to be derived, the Court will adopt, with modification discussed infra, the comprehensive division proposed by the Respondent in Respondent’s Exhibit 5. This was the most complete and comprehensive plan submitted. And the disparity of values given are not great when considering the type of property involved.
“This marriage, essentially, was at an end with the separation of the parties in December of 1987. Theré were several attempts at reconciliation of short duration that were obviously to no avail. The Petitioner first filed for separate maintenance in August of 1988. This was subsequently converted into a divorce case. In February of 1990, within days of a scheduled trial, the Petitioner dismissed the case. It was refiled in April of 1990. The whole thing started all over again and even now the Petitioner contends that she would rather not get a divorce. This recitation of the history of the case is important in that there is an issue as to the date of valuation of various accounts. It is the Court’s decision that the parties essentially went their separate ways in the accumulation of their estates on the date of separation, December 31, 1987, and that will be the date of valuation. It also follows that items acquired by the respective parties subsequent to that date are their separate properties.”
Aileen has designated two issues in her petition for review, which she states as follows:
“I. In addition to the valuation date of marital property being that of the date of filing which results in a divorce, can a trial court consider the valuation date of marital property up to the date of the decree?
“II. Can a trial court order that profits and losses on the non-participant spouse’s share of a pension plan under a qualified domestic relations order begin with the date of valuation of the pension plan rather than the date the order is qualified and the participant spouse is entitled to benefits?”
This court granted Aileen’s petition for review because of an obvious conflict as to the appropriate date of valuation of marital assets between the opinion of the Court of Appeals panel in the present case and the decision of a different panel of that court in In re Marriage of Schwien, 17 Kan. App. 2d 498, 839 P.2d 541 (1992). In Schwien, the Court of Appeals, in a well-reasoned opinion, determined that the date of valuation should be left to the sound discretion of the trial court based upon the facts and circumstances of the particular case. In the present case, the Court of Appeals panel disapproved the holding in Schwien and, instead, adopted a bright-line rule that the date of the filing of the petition is the only proper valuation date. Cray, 18 Kan. App. 2d 15, Syl. ¶ 1. Therefore, a more accurate statement of the issue now before the court is: Did the Court of Appeals err in determining that marital assets must be valued as of the date of the filing of the petition which ends in the granting of a divorce? We conclude that it did.
Aileen maintained in the Court of Appeals that the trial court’s order adopting the date of separation as the date to value marital assets was erroneous and contrary to state law. Aileen relied primarily on Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978), and K.S.A. 23-201(b) in asserting that the date of the filing of the petition is the earliest date for valuation of the marital assets in a dissolution of marriage action. She contends the trial court should have limited discretion to adopt a valuation date as of the date of the filing of the petition or thereafter. She argues that the date may never be earlier than the date of filing the petition, but may in the court’s discretion be subsequent thereto.
Thomas, on the other hand, points out that no Kansas case law fixes an absolute date and that none is required by Kansas statute. He argued in the Court of Appeals and before this court that the legislature has given broad discretion to the trial court in K.S.A. 1992 Supp. 60-1610(b) to determine the appropriate date of valuation. He contends that Schwien sets forth the correct rule and that the ruling from Schwien should be adopted by this court.
K.S.A. 23-201(b), relied upon by Aileen, provides:
"(b) All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
K.S.A. 1992 Supp. 60-1610(b), relied upon by Thomas, provides in pertinent part:
“In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.” (Emphasis added.)
In rejecting the trial court’s decision to value the marital assets as of the date of the parties’ separation, the Court of Appeals’ primary reliance was upon the statutory language of K.S.A. 23-201(b). In doing so, the court reasoned:'
“In the case before us, the only court proceeding which ended in a journal entry of divorce was the action filed by Aileen in April of 1990. Accordingly, that date fixed tire extent of the marital property of the parties. It would be illogical to then value the property at a time other than when it became marital property, as that would be tantamount to altering the extent of the marital property as defined by statute.” 18 Kan. App. 2d at 19.
Next, the court addressed certain concerns which were considered in arriving at the court’s decision to fix an absolute date to value marital assets in all divorce actions. In doing so, the court stated:
“Notwithstanding that logic dictates valuation should be determined on or as close as practical to the date the extent of the marital property is determined, the trial court may still consider any factor, including such things as length of separation, diminution of value, unnecessary delay, or any number of other factors, specifically listed or not, that, in the trial court’s discretion, are necessary to consider in making a division of property pursuant to K.S.A. 1991 Supp. 60- 1610(b).” 18 Kan. App. 2d at 19.
Finally, in concluding that an absolute and fixed date of valuation of marital assets was consistent with both Kansas case law and statutory law, the court rationalized:
“[F]ixing a valuation date does not prevent the trial court from taking into consideration changes in value from that date, if circumstances warrant this, in determining what, in a given case, would be a just and reasonable division of property. On the other hand, fixing a valuation date would lead to more consistency among trial courts in determining value from case to case while at the same time leaving them with discretion to make just and reasonable property divisions.” 18 Kan. App. 2d at 19-20.
In reversing the trial court’s order which set the time of separation of the parties as the valuation date of marital assets, the Court of Appeals panel disapproved the recent ruling in Schwien, wherein a different panel of the Court of Appeals held:
“The trial court has discretion to value the marital estate at the time of separation, at the time the divorce petition is filed, at the time of the divorce hearing, or as the facts in each case dictate. When the time of valuation becomes an issue in a contested case, the trial court at the pretrial conference should set the valuation date.” 17 Kan. App. 2d 498, Syl. ¶ 3.
Following its discussion of Schwien, the Court of Appeals panel here concluded:
“We decline to apply the holding of the Court of Appeals panel in Schwien, 17 Kan. App. 2d 498, Syl-¶ 3 . Under the facts of this case, we hold the trial court should use the date of the filing of the divorce petition as the date for valuing marital property, with the discretion to consider the length of the parties’ separation in dividing that marital property.” 18 Kan. App. 2d at 18.
Thus, the Court of Appeals panel apparently adopted a rule allowing the trial court to do indirectly what the panel refused to allow be done directly. In its syllabus of its ruling, the panel expanded its holding beyond the facts of this case and held:
“In a divorce action, the correct date for the valuation of marital property for purposes of property division is the date of the filing of the action which results in the granting of the divorce. Holdings to the contrary in In re Marriage of Schwien, 17 Kan. App. 2d 498, Syl. ¶ 3, 839 P.2d 541 (1992), are disapproved.” 18 Kan. App. 2d 15, Syl. ¶ 1.
While conflicting opinions among panels of the Court of Appeals occur occasionally and constitute a valid ground for granting Supreme Court review, K.S.A. 20-3018(b), we know of no authority for one panel of the Court of Appeals to disapprove or overrule a decision of another panel of the same court. Any such action should be done, at a minimum, by an en banc review and decision of the Court of Appeals.
In Schwien, the trial court used three different dates of valuation to determine the value of various marital assets. The parties, however, were not satisfied with the court’s division of their marital property and appealed the decision to the Court of Ap peals. In reversing the trial court’s ruling, the Court of Appeals directed the trial court to determine and use a common valuation date. In doing so, the Court of Appeals noted that no Kansas case or statute fixed an absolute date upon which marital assets must be valued, and it declined to do so. After reviewing cases from other jurisdictions which have adopted various and sundry valuation dates, the Schwien court determined that the trial court should have broad discretion to adopt a valuation date that is most appropriate under the facts and circumstances of the particular case in order to comply with the statutory mandate “to make a just and reasonable division of property.” K.S.A. 1992 Supp. 60-1610(b).
We granted Aileen’s petition for review to resolve the conflict between Schwien and the Court of Appeals decision in this case. This court has not previously addressed the issue of the proper date for valuation of marital assets in a divorce, separate maintenance, or annulment proceeding. The issue now before this court is whether the court should adopt a fixed or absolute date upon which marital assets will be valued in all divorce actions, and if so what date should be selected.
In addition to its reliance upon K.S.A. 23-201(b), the Court of Appeals in the present case relied heavily upon our decision in Cady, 224 Kan. 339. The reliance of the court on K.S.A. 23-201(b) and Cady is misplaced. A plain reading of the language of both K.S.A. 23-201(b) and K.S.A. 1992 Supp. 60-1610(b) indicates the legislature did not set a fixed oi absolute date to value marital assets. In Cady, which preceded the adoption of K.S.A. 23-201(b), the issue was “whether a spouse has a species of common or co-ownership in property held in the name of the other spouse before a judgment in a divorce action divides the property.” 224 Kan. 339. In deciding the issue, the court stated:
“We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b).” 224 Kan. at 344.
Nothing in K.S.A. 23-201(b) or Cady mandates a specific valuation date as of the time of the filing of the petition as argued by Aileen and decided by the Court of Appeals in this case. The statute merely creates a specific' date or time when the property owned by both parties to a marriage becomes “marital property” with a common ownership. It in no way requires that the property be valued as of the same time that the common ownership vests. The specific duty of the trial court is found in K.S.A. 1992 Supp. 60-1610(b), which directs the court “to make a just and reasonable division of the property” after considering all of the relevant factors and circumstances of the particular case. While the date of filing the action may be the logical and appropriate date for valuation of the marital assets in many, if not most, cases, nothing in the statutes require the use of such date.
A review of case law from other jurisdictions on this issue illustrates the wide divergence in opinion which exists regarding the time to value marital assets pursuant to a divorce. The various time periods include: date of separation, filing of divorce, after discovery, date of trial, date of divorce decree, date of distribution, and at the discretion of the trial court. Accordingly, there are numerous cases adopting widely divergent views of the appropriate time to value marital assets pursuant to a divorce.
Cases supporting the date of separation include: Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985); Savides v. Savides, 400 Mass. 250, 508 N.E.2d 617 (1987); Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986); the date of filing for divorce: Jolis v. Jolis, 111 Misc. 2d 965, 446 N.Y.S.2d 138 (1981); the date of the trial: Taylor v. Taylor, 736 S.W. 2d 388 (Mo. 1987); Briceno v. Briceno, 566 A.2d 397 (R.I. 1989); the date of dissolution: In re Marriage of Brooks, 138 Ill. App. 3d 252, 486 N.E.2d 267 (1985); In re Marriage of Kramer, 177 Mont. 61, 580 P.2d 439 (1979); In re Marriage of Brandt v. Brandt, 145 Wis.2d 394, 427 N.W.2d 126 (1988); and the date of property distribution: Grandovic v. Grandovic, 387 Pa. Super. 619, 564 A.2d 960 (1989); Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988).
However, our research discloses that the greater number of jurisdictions follow the rule stated in Schwien and allow the trial court broad discretion to value marital assets at different times depending upon the facts of the individual case. Some examples include: Bachtle v. Bachtle, 494 A.2d 1253 (Del. Super. 1985); Taylor v. Taylor, 436 N.E.2d 56 (Ind. 1982); Thompson v. Thompson, 189 Mich. App. 197, 472 N.W.2d 51 (1991); In re Marriage of Halvorson, 230 Mont. 226, 749 P.2d 518 (1988); Hillebrand, v. Hillebrand, 130 N.H. 520, 546 A.2d 1047 (1988); Bednar v. Bednar, 193 N.J. Super. 330, 474 A.2d 17 (1984); Wallace v. Wallace, 733 S.W.2d 102 (Tenn. App. 1987); Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18 (1987).
In addition to the case law from numerous jurisdictions supporting the discretionary rule stated in Schwien, several leading secondary authorities also recommend this rule of law. Golden, Equitable Distribution of Property § 7.01, p. 251 (Turner 1992 Supp.) states: “A growing number of courts are refusing to establish any one mandatory date of valuation. These courts recognize that different dates should control in different cases and they leave the decision to the trial court’s discretion.”
Further discussion on this issue can be found in Goldberg, Valuation of Divorce Assets § 1.10, p. 15 (1984), which states: “[T]he most ideal approach employed by the courts to solve the problem of when assets should be valued holds that the trial court must be permitted to utilize alternative valuation dates in order to make truly equitable awards consistent with legitimate expectations of the parties.”
In 27B C.J.S., Divorce § 545, we find:
“Under some statutes, marital property must be valued as of the date of divorce or dissolution of marriage, or date of separation, or as of the date of the decree, or as of the date of the hearing on disposition of the property if such hearing precedes the date of the decree. Generally, however, in the absence of statutory provisions to the contrary, no single event in the dissolution process necessarily establishes the time for proper valuation of property, especially the time for proper evaluation of marital assets which fluctuate in value, whether it be the date of filing, the date of trial, or the date of dissolution or divorce itself; and the time for valuation is a matter for the trial court to determine in the exercise of its discretion.
“Thus, equitable factors may dictate a valuation date, and in order to do equity in dividing property in a divorce case, the trial court must be permitted to utilize alternative valuation dates, where reasonable under the facts and circumstances presented in the particular case, in order to make truly equitable awards consistent with the legitimate expectations of the parties. ” (Emphasis added.)
We recognize that there are numerous factual situations which might warrant valuing the assets at a time other than the date of the filing of the divorce action. Some of those situations include: post-separation changes in value due to the efforts of one party; a lack of financial involvement of one party; purposeful dissipation of assets subsequent to separation; and bad faith efforts to delay a divorce proceeding. However, we also recognize that mere passage of time between separation and divorce may not warrant valuation at the time of separation. We are also sensitive to and encourage legitimate efforts by either party to reconcile differences after a separation in attempts- to save the marriage. Thus, we expect that trial courts will give full consideration to such efforts in determining what date is. appropriate for valuation of the assets.
We are not convinced that it is appropriate, let alone prudent, to tie the hands of the trial courts in their efforts to comply with the statute and make a just and reasonable division of property. Each divorce case is different, and we believe the longstanding rule which affords the trial court broad discretion in determining the date to value marital assets is the appropriate one. This court has recognized on numerous occasions the importance in allowing a trial court broad discretion in determining what is just and reasonable in the division of marital property. The breadth of this discretion was recognized in LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84- (1975), where the court stated: “Nowhere in any of our decisions is it suggested that a division of all the property of the parties must be an equal division in order to be just and reasonable.” The legislature has left this discretion to the trial courts, and if there is to be a change in that discretion then it is a matter for the legislature. In conclusion, we agree with the reasoning put forth in Berish v. Berish, 69 Ohio St. 2d 318, 432 N.E.2d 183 (1982), supporting this rule. The pertinent portion of that opinion states:
“The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. The public policy giving rise to equitable distribution is at least in part an acknowledgment that marriage is a shared enterprise or joint undertaking. While marriage is literally a partnership, it is a partnership in which the contributions and equities of the partners do differ from individual case to individual case. Assets acquired by the joint efforts of the parties should be, on termination, eligible for distribution. But the precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. It is the equitableness of the result reached that must stand the test of fairness on review.” 69 Ohio St. 2d at 319-20.
Accordingly, we overrule syllabus ¶ 1 and the corresponding statement in the Court of Appeals opinion of In re Marriage of Cray, 18 Kan. App. 2d 15, 846 P.2d 944 (1993). In lieu thereof we agree with the language of syllabus ¶ 3 in the Court of Appeals opinion of In re Marriage of Schwien, 17 Kan. App. 2d 498, 839 P.2d 541 (1992). The trial court has discretion.to value the marital assets at the time of separation, at the time the divorce petition is filed, at the time of the divorce hearing, or as the facts in each case dictate. When the time of valuation becomes an issue in a contested case, the trial court at the pretrial conference should set the valuation date. In doing so, all the marital assets shall be valued as of the same date.
The panel of the Court of Appeals, in its decision here, also appears to modify or disapprove certain language in In re Marriage of Harrison, 13 Kan. App. 2d 313, 769 P.2d 678 (1989). The modification or disapproval of language from Harrison was inappropriate in view of our holding here.
Having determined that the selection of the appropriate date for valuation of marital assets is discretionary with the trial court based upon all the facts and circumstances of the particular case, we now turn to whether the selection of December 31, 1987, the date of separation of these parties, constituted an abuse of the trial court’s discretion. The standard of review in determining an abuse of discretion has been stated many times. In Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973), we said:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.”
The facts of this case were set forth earlier in some detail. During the time period from December 1987 to the time of trial in the present action, Aileen by her own admission had only spent 12 to 13 days in the marital residence, that being in May of 1988. Her testimony indicated she had been self-sufficient and financially independent from the original date of separation in December 1987; she found a place to stay, held two part-time jobs at first, then obtained full-time employment as the director of the Finney County United Way. Her testimony revealed that during the time she allegedly was trying to reconcile with Thomas, she filed an action for separate maintenance, which she later amended to an action for divorce. She made no claim that she was trying to reconcile after filing the second divorce action shortly after dismissing the first action.
Both parties had divided their savings accounts prior to trial, with Aileen having her own account containing $6,672.64. Aileen admitted she did not make any contributions to, payments on, or create any marital assets after the separation date of December 31, 1987.
The trial court found that “this marriage, essentially, was at an end with the separation of the parties in December 1987” and that “the parties essentially went their separate ways in the accumulation of their estates on the date of separation, December 31, 1987.”
The record discloses substantial competent evidence to support the trial court’s decision to use the date of separation as the appropriate date for valuation of the marital assets. No abuse of discretion in adopting that date has been shown, and the trial court did not abuse its discretion.
Aileen in her petition for review states the second issue for consideration by this court to be:
“Can a trial court order that profits and losses on the non-participant spouse’s share of a pension plan under a qualified domestic relations order begin with the date of valuation of the pension plan rather than the date the order is qualified and the participant spouse is entitled to benefits?”
While the simple answer to the question posed would be “yes,” Aileen has again phrased the issue far more broadly than necessary to resolve the issues in this case. She then uses that statement of the issue to request a broad definitive opinion on the requirements of the various federal statutes as they apply to the preparation and subsequent approval of a qualified domestic relations order (QDRO) in a Kansas divorce proceeding. While we appreciate counsel’s concern, we do not deem it appropriate, necessary, or advisable to use this case as a vehicle to direct Kansas legal practitioners and judges on the federal law as it applies to a QDRO.
The trial court in its journal entry and decree of divorce filed July 22, 1991, divided the specific property of the parties to this divorce action and in addition ordered:
“The total value of the property being received by Respondent as described above after being reduced by joint debts assumed and paid by Respondent is somewhat larger than the property being set aside to the Petitioner, thereby Respondent shall convey further consideration to Petitioner by entering into a QDRO setting aside the sum of $21,059.77 from the 401K plan held individually by Respondent with Kansas Nebraska [the respondent’s former employer].”
Following the filing of the journal entry, the parties filed “various and sundry motions [for the Court] to essentially reconsider the entire decision of the court.” Following argument on the various and sundry motions, the trial court took the matter under advisement and subsequently denied all motions of both parties.
Aileen in her arguments before the trial court and the Court of Appeals asserted that her $21,059.77 share of the 401K plan should be subject to the gains and/or losses thereon from the date of valuation until the property is set aside by the plan administrator for ultimate distribution to her as provided by the plan, the applicable federal law, and the QDRO. Aileen does not contend that federal law requires that her share of the pension benefits be subject to gains and/or losses or to a reasonable rate of interest. Thus, we view the issue before the Court of Appeals and this court as whether the trial court abused its discretion in not specifically providing for gains and/or losses on the share of the plan designated for Aileen’s benefit.
As a part of Aileen’s petition and argument on review, she also asks that she be designated as the surviving spouse of Thomas until distribution of her share of the 401K funds. Additionally, she argues that syllabus ¶ 3 of the Court of Appeals opinion is an incorrect, or at least incomplete, statement of the law it attempts to set forth. The Court of Appeals made a heroic effort to review the federal statutes relating to the preparation, approval, and adoption of a QDRO in an attempt to provide specific guidelines to trial practitioners and judges. The federal statutes as they apply to state divorce practice and the adoption of a QDRO are extremely complex, detailed, and difficult to reconcile. A valid QDRO must meet the comprehensive requirements of at least three federal acts, as amended: the Internal Revenue Code, the Employee Retirement Income Security Act of 1974, and the Retirement Equity Act of 1984. For those interested in the intricacies and scope of the various federal acts as they pertain to a QDRO, we recommend the recent treatise Snyder, Financial Issues in Divorce, Qualified Domestic Relations Orders (1993); 3 Troyan, Poll, Cantwell, and Weston, Valuation & Distribution of Marital Property (1993); and, to a more limited extent, 1 Elrod, Kansas Family Law Handbook § 10.043 (1990).
The Court of Appeals in syllabus ¶ 3 of its opinion in this case held:
“When the trial court in a divorce action directs the entry of a qualified domestic relations order awarding a portion of the employee spouse’s pension funds to the nonemployee spouse, the nonemployee spouse does not have a right to those funds until two thresholds are met. First, the time for payment of the funds to the employee spouse must accrue, and, second, the funds must be segregated while the issue of the validity of the qualified domestic relations order is being determined by the pension plan administrator. Until both requirements are met, neither the apportioned pension funds nor the profits and losses flowing therefrom are the property of the nonemployee spouse. ” 18 Kan. App. 2d 15. (Emphasis added.)
Aileen apparently interprets the emphasized statement as precluding any allowance of gains and/or losses or interest in a QDRO. Unfortunately, as pointed out by Aileen before this court, the broad holding of the Court of Appeals fails to recognize one or more exceptions to the rule as stated. The Retirement Equity Act allows for an earlier distribution to a divorced spouse if authorized in the plan and if consented to by the plan’s administrator. Also, to the extent that the Court of Appeals holding might be construed to preclude in a QDRO a provision for gains and/ or losses from the date of valuation, the language is overly broad. Therefore, we disapprove syllabus ¶ 3 and the corresponding portion of the opinion of the Court of Appeals.
Aileen also argues that she should be designated a surviving spouse in the QDRO. This issue was adequately handled by the Court of Appeals in syllabus ¶ 4, wherein the court stated:
“When in a divorce action a trial court awards a nonemployee spouse a portion of the other spouse’s pension benefits by directing the entry of a qualified domestic relations order, it is not error for the trial court to refuse to direct that the nonemployee spouse be named as the ‘surviving spouse.’ As a cautionary measure, to provide guidance to the pension plan administrator, it is recommended the trial court set out in its proposed qualified domestic relations order that the nonemployee spouse be treated as the surviving spouse pursuant to the provisions of 26 U.S.C. § 414(p)(5) (1988) up to the amounts designated in the qualified domestic relations order.” 18 Kan. App. 2d 15.
Unfortunately, in the present case the record does not reflect whether a proposed domestic relations order was prepared for consideration by the trial court or the plan administrator. If one was prepared it has not been included in the record on appeal.
We now turn to the real issue before the court. Did the trial court abuse its discretion in not granting Aileen gains and/or losses on the share of the 401K plan ordered set over to her as a part of the property division? We have previously determined that the selection of a valuation date rests in the sound discretion of the trial court under the facts and circumstances before the court and that the selection of the prefiling separation date in the present case does not constitute an abuse of discretion. It has now been more than six years since the valuation date adopted by the trial court. Much of the delay has been caused by the failure of both parties to exhibit any meaningful attempt to settle their differences. Further delay was precipitated by the failure of Aileen to be ready for trial and her dismissal of and subsequent refiling of the original action. In addition, the case is complicated by the fact that we are being asked to rule upon ramifications of a domestic relations order that, if prepared, has not been made a part of the record. It is unfortunate that the parties do not have the maturity and desire to settle their property differences. Their bitter and vindictive approach to this divorce has worked only to their own detriment and that of their children. There is no reason why the property issues in this divorce could not have been resolved years ago if the parties had the inclination to do so.
In our discussion of the first issue, we set forth the standard of review when it is asserted that a trial court has abused its discretion. Based upon the record in this case we cannot say that at the time of trial the trial judge abused his discretion. However, as this case must be remanded to the district court for the preparation and approval of a proposed QDRO, and due to the long lapse in time, we direct the trial court in the interests of justice to review Aileen’s share of the 401K plan and provide that the original amount be subject to gains and/or losses or to a reasonable rate of interest thereon in accordance with applicable federal statutes and the provisions of the 401K plan. K.S.A. 1992 Supp. 60-2101(b).
In conclusion we hold:
1. Syllabus ¶ 1 of the Court of Appeals decision and the corresponding portion of the opinion are reversed.
2. Syllabus ¶ 3 of the opinion in In re Marriage of Schwien, 17 Kan. App. 2d 498, 839 P.2d 541 (1992), as more fully explained in the opinion is determined to be the rule of law on the issue of selection of a valuation date for marital property in a divorce, separate maintenance, or annulment action.
3. The Court of Appeals is reversed on the issue of the selection of the valuation date for the marital property herein, and the district court is affirmed.
4. Syllabus ¶ 3 of the Court of Appeals decision and the corresponding portions of the opinion relating to the threshold conditions of a qualified domestic relations order are disapproved.
5. Other issues in the Court of Appeals decision affirming the district court are not before this court for review.
6. The case is remanded to the district court for preparation of a proposed QDRO and the inclusion of gains and/or losses or a reasonable rate of interest on the portion of the 401K plan awarded to Aileen.
The judgment of the Court of Appeals is reversed in part and disapproved in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings.
Davis, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by Mary Ann Brooks and Jimmy Brooks from an order of the district court severing their parental rights in Debra Brooks, pursuant to K.S.A. 1978 Supp. 38-824(c).
The three issues before this court are:
1. Is the term “unfit” in K.S.A. 1978 Supp. 38-824(c) unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
2. Does K.S.A. 1978 Supp. 38-824(c) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it fails to incorporate the doctrine of the least restrictive alternative?
3. Was there sufficient evidence in this case to justify a finding of “unfitness”?
Inasmuch as the facts of this case are not involved in the determination of the constitutional issues, the recitation of same will be reserved until later in the opinion.
K.S.A. 1978 Supp. 38-824 provides in pertinent part:
“(a) The provisions of this section shall apply to any child under the age of eighteen (18) years found to be a deprived child, within the meaning of this act, either at the initial hearing or any subsequent hearing.
“(c) When the parents, or parent in case there is one parent only, are found and adjudged to be unfit to have the custody of such deprived child, K.S.A. 1978 Supp. 38-820, and other applicable provisions of this act having been fully complied with, the district court may make an order permanently depriving such parents, or parent, of parental rights and commit the child:
“(1) To the care of some reputable citizen of good moral character;
“(2) to care of some suitable public or private institution used as a home or place of detention;
“(3) to the care of some association willing to receive the child, embracing in its objects the purpose of caring for or obtaining homes for deprived children;
“(4) to the secretary of social and rehabilitation services.”
By 1979 amendment the following language was substituted for (c)(2) above:
“(2) to a youth residential facility, subject to the limitations of subsection (/) of K.S.A. 1979 Supp. 38-819;”
This amendment is not pertinent to any issues herein.
The appellants contend the term “unfit” in K.S.A. 1978 Supp. 38-824(c) is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, appellants argue the term “unfit” is unconstitutionally vague because it (1) does not provide sufficient notice of what conduct the State is seeking to prohibit; (2) permits arbitrary and discriminatory enforcement of the law; and (3) inhibits the exercise of protected rights. These are the standards set forth in Grayned v. City of Rockford, 408 U.S. 104, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972), for determining whether a criminal statute is impermissibly vague.
The general principles which the courts must apply in determining the constitutionality of a statute were set forth in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶¶ 1-4, 598 P.2d 1051 (1979), and reaffirmed in In re Jones, 228 Kan. 90, 95, 612 P.2d 1211 (1980), as follows:
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.”
“In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.”
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.”
In determining constitutional challenges for vagueness, greater leeway is afforded statutes regulating business than those proscribing criminal conduct. Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L.Ed.2d 110, 92 S.Ct. 839 (1972). Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), contains a well reasoned discussion of the distinction and by what standards statutes pertaining to termination of parental rights should be judged. The Supreme Court of Arkansas concluded at pp. 120-121:
“[W]here standards for termination of parental rights are the subject of the statute involved, the application of ‘vagueness’ tests should lie somewhere between that given criminal law statutes and that given statutes regulating business, i.e., permitting greater flexibility than where criminal law statutes are involved and less flexibility than with business-regulatory statutes. See Minor Children of F. B. v. Caruthers, 323 S.W.2d 397 (Mo. App. 1959). This is because any parent should have some basic understanding of his obligations to his children, but many cannot be as alert to, and aware of, prevailing practices basic to establishment of standards as those engaging in business would likely be to settled and well understood standards and practices. Mathematical certainty in language is not to be expected in any statute. Grayned v. City of Rockford, supra. See also, Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, in a statute are permissible, so long as its reach is clearly delineated in words of common understanding. Grayned v. City of Rockford, supra; Minor Children of F. B. v. Caruthers, 323 S.W.2d 397 (Mo. App. 1959). A statute which defines boundaries sufficiently distinct for citizens, policemen, juries and appellate judges is not impermissibly vague. Grayned v. City of Rockford, supra. Impossible standards of specificity are not required by the constitution, even in criminal statutes, and a statute meets constitutional muster, if the language used conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). It is not necessary that all kinds of conduct falling within the reach of the statute be particularized. City of Chicago v. Fort, 46 Ill. 2d 12, 262 N.E.2d 473 (1970). A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). The futility of anticipating and enumerating every means or method a fertile mind might devise that would come within the purview of a statute is obvious. City of Chicago v. Fort, supra; Minor Children of F. B. v. Caruthers, supra.”
We concur with and adopt the aforecited portion of the Arkansas opinion.
Kansas has long held that a statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977). At its heart the test for vagueness is a common-sense determination of fundamental fairness.
Having stated the standards to be applied in determining whether a statute is impermissibly vague, we turn now to application of the tests to the statute in question.
The appellants rely heavily on Alsager v. District Court of Polk Cty., Iowa, 406 F. Supp. 10 (S.D. Iowa 1975), aff’d 545 F.2d 1137 (8th Cir. 1976), wherein a federal district court struck down an Iowa termination statute on the grounds of vagueness. The Iowa statute (Iowa Code § 232.41) provided:
“The court may upon petition terminate the relationship between parent and child:
“2. If the court finds that one or more of the following conditions exist:
“a. That the parents have abandoned the child.
“b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.
“c. That although financially able, the parents have substantially and continuously neglected to provide the child with necessary subsistence, education, or other care necessary for physical or mental health or morals of the child or have neglected to pay for subsistence, education, or other care of the child when legal custody is lodged with others.
“d. That the parents are unfit by reasons of debauchery, intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child.
“e. That following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination.”
The Alsager conclusions relative to vagueness are intermingled with other concerns, such as notice of the proceedings, adequacy of the termination proceedings, and standard of proof. A careful reading of the case reflects that the court essentially applied the criminal statute test for vagueness. Further, the court was concerned that the Iowa statute permitted termination without a showing of “high and substantial degree of harm to the children.” The court in Alsager also noted at pp. 19-20:
“[T]he Court must next determine whether this vagueness has been cured, either generally, by the Iowa Supreme Court’s decisions in other termination cases, or specifically, by the Iowa Supreme Court’s opinion in this case. As the United States Supreme Court indicated in Groyned, supra, the defect of an enactment’s vagueness can be ameliorated by a state court construction restricting the vague standards to constitutionally permissible bounds. In fact, in Groyned, the Court concluded that an imprecise phrase in an anti-noise statute had been cured by the Illinois Supreme Court’s delimiting construction of a similar phrase in another ordinance. 408 U.S. at 111, 92 S.Ct. 2294. Groyned thus suggests that the Iowa standards may be saved from their unconstitutional vagueness if the needed specificity has been supplied by the Iowa Supreme Court. Regrettably, the Iowa Supreme Court has not perfected a general or specific cure of these standards.
“The parental termination statute presently under attack was enacted in 1965 by the Sixty-first General Assembly of the State of Iowa. Since then a number of cases brought pursuant thereto have been reviewed de novo by the Iowa Supreme Court. In the great majority of decisions involving an application of the standards of ‘necessary parental care and protection,’ and of ‘[parental] conduct . . . detrimental to the physical or mental health or morals of the child,’ the Iowa court has simply made a determination as to the ‘substantiality of the evidence’ to support a finding based on those standards. The Iowa court has never attempted a restrictive construction of the termination standards themselves. Moreover, the Iowa courts did not attempt to restrict the scope of the statute while terminating the Alsagers’ parent-child relationships. Indeed, the Alsagers were subjected to all the vagueness dangers inherent in the indefinite standards of § 232.41(2)(b) and (d).”
Kansas appellate courts have repeatedly construed the term “unfit” in the statute. In re Kerns, 225 Kan. 746, 753, 594 P.2d 187 (1979), reviews many prior decisions. In re Johnson, 214 Kan. 780, 784, 522 P.2d 330 (1974), concluded that parental unfitness was not defined by our statutes but applied prior construction. Illustrative of such judicial constructions are the following:
1. In re Vallimont, 182 Kan. 334, 340, 321 P.2d 190 (1958):
“Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.”
2. Finney v. Finney, 201 Kan. 263, Syl. ¶ 2, 440 P.2d 608 (1968), had this to say:
“The word ‘unfit’ means, in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.”
3. In re Penn, 2 Kan. App. 2d 623, 625, 585 P.2d 1072 (1978), held:
“The word ‘unfit’ means in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. In re Armentrout, 207 Kan. 366, Syl. ¶ 3, 485 P.2d 183 (1971). So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from any other defects. In re Vallimont, 182 Kan. at 340.
“Inherent mental and emotional incapacity to perform parental obligations can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child. See K.S.A. 1977 Supp. 38-824(c); In re Johnson, 214 Kan. 780, 522 P.2d 330 (1974); In re Bachelor, 211 Kan. [879] at 883 [508 P.2d 862 (1973)].”
The Iowa statute involved in Alsager is distinguishable. In Iowa the action was brought to sever the parental rights. In making such a determination the court could sever parental rights if the parents had committed any of the specified acts or were unfit. Under the Kansas statute the court must find the children to be deprived before the issue of termination is reached. The termination of parental rights is rather dispositional in nature. K.S.A. 1978 Supp. 38-824(a) provides:
“(a) The provisions of this section shall apply to any child under the age of eighteen (18) years found to be a deprived child, within the meaning of this act, either at the initial hearing or any subsequent hearing.”
Subsection (b) sets forth permissible dispositions for deprived children where parental rights have not been severed, and subsection (c) sets forth permissible dispositions where parental rights have been severed. A deprived child is defined in K.S.A. 1979 Supp. 38-802(g) as follows:
“(g) ‘Deprived child’ means a child less than eighteen (18) years of age:
“(1) Who is without proper parental care or control, subsistence, education as required by law or other care or control necessary for such child’s physical, mental or emotional health, and the deprivation is not due solely to the lack of financial means of such child’s parents, guardian or other custodian;
“(2) who has been placed for care or adoption in violation of law;
“(3) who has been abandoned or physically, mentally, emotionally abused or neglected or sexually abused by his or her parent, guardian or other custodian; or
“(4) who is without a parent, guardian or legal custodian.”
We conclude that the term “unfit” in K.S.A. 1978 Supp. 38-824 is not impermissibly vague as previously construed and defined by the appellate courts of Kansas.
The next issue is whether K.S.A. 1978 Supp. 38-824(c) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it does not incorporate the doctrine of the least restrictive alternative in the criteria for the termination of parental rights. This doctrine was set forth in Shelton v. Tucker, 364 U.S. 479, 488, 5 L.Ed.2d 231, 81 S.Ct. 247 (1960), as follows:
“In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”
Appellants do not contest the fact that the State of Kansas has a legitimate interest in the welfare of children within its borders. Obviously, a parent’s right to rear his own children is a fundamental right. In cases involving deprived children, conflicts in rights frequently arise.
K.S.A. 1979 Supp. 38-801 provides:
“38-801. Construction of juvenile code; proceedings not criminal. This act shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.”
In re Armentrout, 207 Kan. 366, 370-371, 485 P.2d 183 (1971), discusses the relative rights of the State and the parents as follows:
“While the welfare and best interests of children are of paramount consideration in determining an award of custody, as between parents whose marriage has been separated by divorce or separate maintenance, in a proceeding to sever parental rights, the welfare of the child or children must be considered in conjunction with the rights of the parents. A parent will not be permanently deprived of the parental rights to a child unless such parent is found to be an unfit person. The rule and reasoning in support thereof is well stated by Justice Dawson in In re Kailer, 123 Kan. 229, 255 Pac. 41:
“ ‘Noting respondents’ objections to this judgment, it is urged that the welfare and best interests of the children were the paramount issue. Under the law of the land the welfare and best interests of children are primarily the concern of their parents, and it is only when parents are unfit to have the custody, rearing and education of children, that the state as parens patriae, with its courts and judges, steps in to find fitting custodians in loco parentium.
“ ‘Putting the matter in another way, it is quite correct to say that the welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be entrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves. There are enough of the latter sort of cases where the courts are compelled to interfere and take the custody of children from unfit parents, or to decide which of quarreling parents should have their custody. . . .’ (pp. 230-231.)
“The rule stated in Kailer was quoted in Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658, and again in the case of In re Vallimont, 182 Kan. 334, 321 P.2d 190, wherein it was further pointed out:
“ ‘It is definitely established that when the custody of children becomes an issue as between parents, the primary question to be determined by the court is the welfare and best interests of the children, and all other questions are subordinate thereto. . . . But this is not the situation presented by the facts in the instant case. Here the father seeks custody from the maternal grandparents.’ (pp. 336-337.)
“To further settle the matter, Justice Schroeder in the Vallimont opinion quoted with approval from the decision in Stout v. Stout, 166 Kan. 459, 201 P.2d 637:
“ ‘. . . It will suffice to say that if there is any language to be found in any of our decisions justifying the construction that the children of a natural parent may be given to third persons without a finding such parent is an unfit person to have their custody it should be and is hereby disapproved.’ (p. 337.)
“The statutes under which this proceeding is brought actually amount to a codification of the rulings pertaining to severance of parental rights which have been laid down by this court in the cases mentioned.
“In the case of Lennon v. State, 193 Kan. 685, 396 P.2d 290, this court considered severance of parental rights under the provisions of the Juvenile Code in essentially their present form. Considerable emphasis was given the welfare of the child, but a careful examination of the evidence recited and the evaluation thereof clearly indicates the court tacitly said the mother was unfit. She was described in these terms:
“ ‘. . . Mary’s record throughout her adult years reveals gross instability and lack of moral fiber. . . .’ (p. 690.)”
Further in the opinion it was said:
“ ‘We readily agree that parental rights are not to be considered lightly, and this court has always been diligent in their protection. (Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; Pinney v. Sulzen, [91 Kan. 407,137 Pac. 987], supra.) However, when the welfare of a child so demands, the rights of its parents must yield to the paramount right of their offspring to receive proper parental care, guidance and control. Where such be the case, the state, in the rightful exercise of its power as parens patriae, has the duty to intervene on behalf of the child in furtherance of its legitimate interests, (citing case).’ (p. 691.)
“In determining questions concerning custody or severance of parental rights, a close relationship exists between the fitness of a parent to have custody and the welfare of the child whose custody is in issue. While a higher degree of proof is required with respect to parental rights, the unfitness of a parent controls as to an issue of custody between a parent and a third party as well as with respect to severance of parental rights. In either case the parent must be found to be an unfit person. (Finney v. Finney, 201 Kan. 263, 440 P.2d 608.)”
Severance or termination of parental rights is obviously the most drastic disposition which may be imposed in such cases and may only be utilized upon a finding the parents are unfit by clear and convincing evidence. Usually, but hot necessarily, severance proceedings are instituted only after attempts by the court to rehabilitate the family unit have failed. Frequently, a long passage of time occurs between the original adjudication that the child is deprived and the institution of the termination proceeding. “Unfit” was defined as “unsuitable, incompetent or not adapted for a particular use or service.” In re Armentrout, Syl. ¶ 3. Inherent in the term is that the parent is unfit now and in all reasonable likelihood will remain so in the future. Certainly termination of parental rights destroys the family unit, but generally the actual destruction of the family unit occurred earlier and was the result of the action or inaction of the parents themselves. To perceive a termination proceeding as the State seeking to destroy a functioning family unit is unrealistic.
The Kansas Court of Appeals in In re Atwood, 2 Kan. App. 2d 680, 681-682, 587 P.2d 1 (1978), held:
“To determine that the best interests of the child would be served by a termination of parental rights, the court must find that under no reasonable circumstances can the welfare of the child be served by a continuation of the parent-child relationship. This test requires the court to explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance. See People, Int. of M. M., 184 Colo. 298, 520 P.2d 128 (1974). The welfare and best interests of children are primarily the concern of their parents, and it is only when parents are unfit to have the custody, rearing and education of children that the state as parens patriae, with its courts and judges, steps in to find fitting custodians in loco parentium. In re Armentrout, 207 Kan. at 370 citing In re Kailer, 123 Kan. 229, 255 Pac. 41 (1927). See also In re Bachelor, 211 Kan. 879, 882, 508 P.2d 862 (1973); In re Vallimont, 182 Kan. 334, 321 P.2d 190 (1958).”
Without expressly so stating, the court in Atwood acknowledges the doctrine of the least restrictive alternative and judicially construes it into the statute. We approve the cited language of Atwood except for the following sentence: “This test requires the court to explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance.” In many areas of the state there are dozens of agencies and programs designed to assist families in resolving their problems. To require a court specifically to explore, consider and reject each such program prior to termination is unrealistic and could be disastrous. Certainly if a particular program is proposed as an alternative the court should give careful consideration to the proposal. Most of the programs have much in common and to be successful in any of these programs parents must cooperate with the agency, must keep appointments, must have a sincere desire to improve their family life, and must be willing to accept counseling.
We conclude the better test to be: The court should carefully consider any particular alternative remedy proposed by an interested party in the case, and if rejected the court should state its reasons for such rejection. The drastic remedy of termination of parental rights should not be utilized unless the court is satisfied there is no realistic alternative and so finds.
We conclude that K.S.A. 1978 Supp. 38-824(c), as herein judicially construed, does not violate the Due Process Clause of the Fourteenth Amendment for failure to incorporate the doctrine of the least restrictive alternative.
We turn now to the final issue, which is whether there was sufficient evidence of parental unfitness to terminate appellants’ parental rights.
Appellants Mary Ann and Jimmy Brooks, husband and wife, are mentally retarded young adults. They maintain a household on Supplemental Security Income (S.S.I.) payments which are augmented by income from odd jobs performed by the husband. Jimmy has diligently sought work and conscientiously performed his work. SRS had apparently been involved with, appellants prior to the conception of the child and at all times relevant herein.
The appellants were residing in Montgomery County in 1974. Jimmy’s father lived with the couple, caused Mary Ann to become inebriated, and fathered the child, Debra, while Mary Ann was so incapacitated. Debra was born on November 21, 1974, in a Montgomery County hospital. The facts relative to the conception are undisputed. Upon learning of Mary Ann’s pregnancy, Jimmy forcibly ejected his father from the household. The appellants are convinced that the ejection of Mr. Brooks, Sr., from the household caused the ultimate loss of the child from their custody. No moral delinquency on the part of Mary Ann was or should be inferred from the circumstances of Debra’s conception.
Knowledge of this fact is necessary in order to understand some of the evidence in the case. The emphasis of the issue of parental fitness was on Mary Ann’s ability to rear the child.
The information as to court proceedings in Montgomery County is sketchy and we know little of the then existing circumstances. We do know Debra was placed in foster care at birth but was returned to appellants at age three months. She resided with appellants for approximately one month when she was hospitalized for pneumonia. Upon her recovery, she was again placed in foster care where she has continuously resided. On August 5, 1976, the Montgomery County Juvenile Court adjudicated Debra to be a dependent and neglected child. In that action Mary Ann was served as the natural mother and Jimmy was served as the stepfather. Both were represented by court-appointed counsel. The court had before it mental evaluations of both parents. What other evidence was presented we do not know. No appeal was taken from that adjudication and we can only conclude it was a legally correct and proper proceeding. The court placed custody of the child in SRS with the recommendation “that she be placed permanently in the Bill Mark foster home.” Visitation rights were granted appellants.
In 1978 the foster parents moved to Wyandotte County and on June 14, 1978, the case was transferred to that county. The appellants appeared in person and by counsel at the hearing on the motion to transfer.
On October 11, 1978, the action herein was filed in Wyandotte County, seeking termination of the parental rights of Mary Ann Brooks, natural mother, and “Jimmy Brooks and James Brooks, Sr., alleged natural fathers.” Appellants were present in person and by counsel during the proceedings. Mr. Brooks, Sr., was served by publication but appeared only by court-appointed counsel. On March 23, 1979, the court adjudicated Mr. Brooks, Sr., to be the natural father of Debra and terminated his parental rights. No appeal was taken by Mr. Brooks, Sr., from that adjudication and the appellants do not challenge the court’s finding as to the paternity of Debra. The appellants appeal from that portion of the decision which found them to be unfit and terminated their parental rights.
Evidentially, the case presented some logistical problems. Debra was taken from the parents and adjudicated a deprived child in Montgomery County. The child and her foster parents resided in Wyandotte County, whereas the appellants were residing in Crawford County. Appellants and Debra had been wholly separated from the time Debra was four months old until the date of the hearing, except for two or three visits. The infrequency of visits was not occasioned by any lack of interest on the part of appellants. In such circumstances most of the witnesses were personally familiar with either Debra or appellants, but not with all three. The witnesses had reports available to them.
Appellants do not challenge the admissibility of the evidence, but contend it was insufficient to support the finding of unfitness. The trial court’s memorandum decision summarizes the evidence and states the basis for its decision. The memorandum decision, in appropriate part, is as follows:
“The questions before the Court are: First, is Debra Brooks a deprived child? Second, are Jimmy and Mary Ann Brooks ‘unfit’ parents; and, third, should their parental rights be severed?
“Obviously, without having a complete transcript of the prior hearing on this matter, I must consider what the prior court actions were in this case and couple that with evidence presented at the March 8 hearing here in Wyandotte County.
“In order to sever parental rights the State must show the parents are ‘unfit’ to act as parents. The burden of proof on the State to establish unfitness is high. I will not permanently deprive a natural parent of the custody of a minor child unless the parents’ unfitness is established by clear and convincing evidence. ‘Unfit’ has been defined as meaning, in general, ‘unsuitable, incompetent or not adapted for a particular use or service’.
“In the case of In re Armentrout, 207 Kan. 366, pp. 371-72 the Supreme Court has defined ‘unfit’ as ‘unsuitable, incompetent or not adapted for a particular use or service’.
“In this case it is important to look at the entire picture surrounding the Brooks family. The States’ witnesses included two psychologists and three social workers, one experienced in special education. All of the States’ witnesses dealt with one or all of the Brooks family members.
'.‘In summary the witnesses testified as follows:
“First; Phyllis Jeter, social worker in Pittsburg, Kansas Office of SRS, testified of her involvement with the Brooks family since March, 1978. State Exhibit #1 is a summary of her findings, and was received into evidence without objection. Ms. Jeter testified about coordinating 2 or 3 visits between Mr. and Mrs. Brooks and Debra. She stated the Brooks appear to be highly motivated and sincere, caring persons who are of limited ability and who lack understanding of everyday life and its ramifications. Many problems were noted with the visit itself, and Ms. Jeter concludes it would be her recommendation to terminate parental rights.
“Second; Margaret Brohl, psychologist at Crawford County Mental Health Center, testified she has worked with Mr. and Mrs. Brooks in the area of counseling and instruction in parenting techniques. The course in parenting was covered in 12 sessions and there was no need for more sessions. She feels the Brooks could be parents for a normal child with proper supportive services. She stated it would be difficult for them to care for a child requiring special services. Ms. Brohl’s testimony was summarized in State’s Exhibit #2, which was received without objection.
“Third; Dr. Mary Mira, Associate Professor of Pediatrics, Psychology at the Children’s Rehabilitation Unit, University of Kansas Medical Center, testified she evaluated Mr. and Mrs. Brooks and Debra as to the Brooks’ ability to be proper parents for Debra. Her report was received into evidence and marked State’s Exhibit #3.
“Dr. Mira found the Brooks to be eager and happy persons. Their interaction with Debra was positive, warm, but inappropriate. She felt that Debra is a high risk for mental retardation, and she needs an extremely structured home environment which the Brooks can’t provide at this time. Dr. Mira stated the Brooks weren’t hostile or abusive, but they lack the ability to understand the child’s limits. Debra is evaluated as an overactive, inattentive, compliant child who is approximately 6 months delayed in skill level. She is a microcephalic (small head) child and this creates a high risk for mental retardation.
“Fourth; LeAnne Britten, Special Education Instructor at Shawnee Mission Medical Center, Infant Development Unit, testified of her contact with Debra since September, 1978. She testified Debra is in a special education, highly structured class because she was difficult to control in a regular preschool class. Ms. Britten stated Debra is not doing as well as the staff had hoped, and there is a concern about Debra being a high risk for later mental problems. She indicated the foster parents are dealing with Debra’s problem of control.
“Fifth; Yvonne Lindsey, SRS Foster Care Worker, has monitored the Brooks visits with Debra. She stated they were hectic, as Debra is quick in her movements and can get out of hand quickly. She stated she saw no physical abuse by the Brooks.
“Sixth; Mary Ann Brooks, mother to Debra, testified that Jimmy Brooks is not the natural father of Debra Brooks; but, that James Brooks, Sr., is the natural father of Debra. She testified James Brooks, Sr., told her and acknowledged that he is the father to Debra. She further stated he has not supported Debra in the past.
“In this case what we have is a 4-year-old child who has spent almost no time in the custody of her parents, due largely to the inability of the parents to properly care for the child and also due partly to the child’s special problems.
“I believe the law clearly protects children from foreseeable abuse or neglect. I believe a deprived finding can be made if the natural foreseeable consequence of the parents’ custody over the child would be abuse or neglect.
“In this case I am convinced from the evidence presented that Debra Brooks would be a neglected child if custody would be returned to the natural mother and father, as I feel the evidence is clear these parents could not provide the proper parental care or control necessary for this child’s special physical, mental or emotional health needs.
“I further find that James Brooks, Sr., is the natural father of Debra Brooks. I find that he has failed to provide any parental care or control over Debra, and he has in fact abandoned this child by his lack of providing any financial or parental aid to Debra. Service by publication is approved, and James Brooks, Sr., is found to be an unfit person to continue as a parent and I am permanently severing his parental rights as to Debra Brooks. There is a presumption that when two parties are married any children of that marriage are presumed to be children from the marriage partners. This presumption can be overcome by other testimony as in this case where the biological mother, Mary Ann Brooks, has testified under oath that her marriage partner is not the biological’ father of her child. Mrs. Brooks’ testimony is undisputed by any other evidence and therefore controls my decision as to James Brooks, Sr.
“The last question and of course the most difficult question to be answered is, has the State proven by clear and convincing evidence that Mary Ann Brooks and/or Jimmy are unfit persons to continue as parents of Debra Brooks. In reaching a determination the Court must consider the rights of the parents and also the rights of Debra Brooks. The ultimate decision must also consider what is in the best interest of the child.
“Testimony from the witnesses in this case indicates to me that while the Brooks are persons eager to become parents [and] who have the proper attitude to be parents, they lack the mental and emotional capacity to appreciate and perform the obligations that come with being a parent. While they feel they have the ability to be proper parents, I am convinced from the evidence presented that Debra Brooks would present child rearing problems beyond the Brooks’ capacity to handle. The testimony of Dr. Mira, Ms. Lindsey and Ms. Jeter has convinced me that in this case when considering all factors, I can regretfully reach only one conclusion and that is that the Brooks are ‘unfit’ persons to remain as parents for Debra Brooks, and that it is in the best interest of Debra Brooks that their parental rights are permanently severed and that Debra be placed in the full legal and physical custody of SRS for adoption.
“This decision is not taken lightly and it is made after thoroughly reviewing the complete file several times. I have also considered other possible alternatives, none of which are reasonable in this case. I am firmly convinced that in the long run Mr. and Mrs. Brooks will see the wisdom of my decision. I have a great deal of sympathy for the parties involved. This child has been in foster care for four (4) years and it is time to give her a chance to begin a new life with a family who can give her the proper parental care a special child like her is sure to need in future years. This child needs dedicated parents who can give her maximum emotional and mental guidance coupled with love and affection; these qualities her natural parents are unable to provide.
“The parties are reminded of the right to expungement of the charge when applicable. Costs of this action including attorney fees and publication costs are taxed against the county.”
To facilitate understanding of the child’s condition, the following is reproduced verbatim from Dr. Mira’s testimony:
“I tried to assess her from two standpoints; one, the behavior that she demonstrated during the testing and what we know about her physically. We know that this is a child who is high risk for mental retardation, this is a child who is microcephalic and we know that this is associated with later problems of retardation and neurological problems in 90% of the cases so on the basis of her systemic findings we know she is a high risk child. 1 found her to be delayed, approximately six months delayed in her skill levels. More than that I found her to be a child who I would characterize as overactive, inattentive; I needed to use all of my skills as a behavior manager to keep her on task. She’s a child who required a great deal of skill in management. I would see her as a child who is as I said developmentally with some problems with some attention and behavior problems and very high risk for later learning problems.”
Although not specifically mentioned by the trial court, the evidence leads to the conclusion that Mary Ann has a rather idealized concept of motherhood and does not comprehend the day-to-day difficulties encountered in raising a child with the behavioral problems possessed by Debra. The evidence speaks to concern over the effects the appellants would have on the child, but a legitimate concern is inherent in the evidence as to the effect the presence of a highly disruptive child would have on the appellants’ ability to function.
The Kansas case most closely resembling the factual situation herein is In re Penn, 2 Kan. App. 2d 623, 585 P.2d 1072 (1978), wherein the Kansas Court of Appeals stated at 624-625:
“Efforts to help the Penns improve their parenting skills and alter their manner of relating to Kathy have been futile and the prognosis for improvement in this area is poor. One of the problems is that the Penns themselves do not have the emotional stability to meet Kathy’s needs. They deny that she has any problems and even after therapy lack insight into how Kathy’s behaviors developed and how they might deal with them in the future. Although the professionals who have successfully treated Kathy testified during the hearing that it is mandatory for Kathy to have a consistent, structured environment if she is to attain normal growth and development, the Penns resist changing their method of child rearing which is too unstructured, nondirective and passive for a child of Kathy’s nervous, insecure disposition. Even when compelled by external agencies the Penns find it extremely difficult, if not impossible, to make demands upon Kathy. They persist in believing that all they need to do is to take Kathy back home and love her and everything will be all right.
“It is difficult to envision a home situation which would be more detrimental to a child with Kathy’s particular needs. In so saying, we do not imply that we will disturb a normal family relation merely because others may be better able to give the child greater comforts, wider education or the promise of a larger inheritance. See In re Vallimont, 182 Kan. 334, Syl. f 3, 321 P.2d 190 (1958). Nor do we discount the value of love and affection, which the Penns seem willing to give Kathy within the limits of their capacity. However, love alone is not sufficient. Lennon v. State, 193 Kan. 685, 690-691, 396 P.2d 290 (1964). The psychological and emotional health of a child is no less a concern of this court than is the physical care.”
It should be noted that the facts of Penn present a more severe situation than is present herein, but much of the rationale is applicable.
The trial court was confronted with a most difficult factual situation and obviously reached its decision with sensitivity and concern. After careful consideration the trial court held the appellants to be unfit to be the parents of Debra and terminated their parental rights. The decision was supported by clear and convincing evidence and no error is shown.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Joe McDaniel and Boyd S. Owens, Jr., (defendants-appellants) guilty of one count each of aggravated robbery (K.S.A. 21-3427). Alleged trial errors are asserted on appeal.
About 3:15 p.m. on January 20, 1979, Leonard Martin, Jr., assistant manager of the Collins Oil Station, 164 South 18th Street, Kansas City, Wyandotte County, Kansas, was the victim of a robbery at gunpoint. Martin testified that he observed a car containing two adult white males drive up to the full service island in front of the station building. Martin was told by the driver, McDaniel, to fill the tank. McDaniel exited the car, went inside the station, then called out and told Martin to check the oil. Martin asked the passenger, Owens, to turn off the car’s engine. Owens first refused, but when Martin relayed McDaniel’s order to check the oil Owens complied and shut off the car engine. Martin filled the gas tank, added two quarts of oil, and then began washing the car windows. McDaniel asked Martin if he could break a $50 bill; Martin responded in the negative. When Martin was washing the passenger side window, he was asked about breaking a $20 bill. Martin replied that he would have to go inside the station to do it. The transcript does not clearly indicate which appellant asked Martin about the $20 bill.
When he finished washing the windows Martin returned to the driver’s window and asked for $13.20. McDaniel reached inside his coat pocket as if to retrieve money, but brandished a gun instead. Martin described the gun as a .32- or .38-caliber pistol. When McDaniel displayed the gun he demanded, “Give me it. . . . You know, give it here.” Martin told McDaniel he had only the money changer because the shift had just begun. Martin surrendered the money changer and turned his pockets inside out to show he had no more money. McDaniel then drove the car away from the station.
Martin observed the car’s license tag number and wrote it down. Martin’s wife had arrived shortly before the robbery; she also observed and remembered the license tag number. The police were given the license tag number and a description of the car. At about 4:15 p.m., one hour after the robbery, policemen located a Chevy Nova fitting the description of the suspect vehicle. The car was parked at a private club and bore a license tag with the number reported by the Martins. The police entered the club and observed two men fitting the suspects’ descriptions. The suspects, the appellants, were arrested and searched. A .32-caliber pistol was recovered from Owens’ coat pocket. Later that day, Martin and his wife identified the car at the club, and selected both appellants from lineups.
Police investigation revealed that the automobile the appellants used was owned by Owens’ girl friend, Deana Green. The appellants borrowed Ms. Green’s car about 2:00 p.m. the day of the robbery. Ms. Green had not yet purchased a license tag for the car. The license tag affixed to the car the day of the robbery was registered to Mrs. Mary Rogers. About 7:00 a.m. on January 20, 1979, Mrs. Rogers and her husband discovered the license tag had been stolen from her vehicle during the preceding night. Mrs. Rogers reported the theft of the license tag to police the same day, the day of the robbery.
Both appellants testified on their own behalf at trial. They admitted the crime occurred, but asserted the defense of voluntary intoxication. Ms. Green testified that she, the appellants, and McDaniel’s girl friend, consumed two fifths of schnapps, one quart of premixed vodka screwdrivers, and one case of beer the day of the robbery.
McDaniel asserts four issues on appeal. He contends that (1) the trial court erred in admitting Mrs. Rogers’ testimony; (2) the prosecutor committed prejudicial error by remarks made in closing argument; (3) an instruction on presumed intent was erroneous; and (4) the sentence was cruel and unusual. The appellant Owens asserts two issues on appeal. He contends the trial court erred in (1) admitting Mrs. Rogers’ testimony; and (2) in its instruction on the voluntary intoxication defense.
Both appellants assert one common issue on appeal, that the trial court erred in admitting Mrs. Mary Rogers’ testimony. Mrs. Rogers was called as a State’s witness. Shortly after Mrs. Rogers took the stand the following exchange occurred between court and counsel:
“MR. JESERICH: Anticipating what this evidence is going to.be, I’m assuming what Dennis is going to show here is that somebody took these tags from this car. I’m going to object to any further testimony because I believe it’s irrelevant and unnecessary and could be prejudicial to my client simply because the jury might draw an inference that they — that Joe McDaniel along with Steve Owens stole this tag. Mr. Harris already got in evidence this was the tag on the car when it was found and that the tag was on the car at the time of the robbery. I think that’s all. That is sufficient as to the relevance of the robbery charge. Anything additional is going into—
“THE COURT: I don’t know what she saw. She see these guys take it?
“MR. HARRIS: No.
“THE COURT: She just say—
“MR. HARRIS: The tag was on her car when she went to bed. On the 20th when she got up in the morning, it was gone.
“MR. JESERICH: If she doesn’t have any knowledge, I think it’s irrelevant and that’s why I’m objecting. I think the jury might draw an unfair reference from it.
“THE COURT: Objection overruled.
“MR. JENKINS: I have the same objection for the record.”
Mrs. Rogers then testified that she and her husband discovered the theft of the license tag the same day of the robbery and reported the theft to the police.
The appellants contend the trial court erred in admitting Mrs. Rogers’ testimony over their objections. They argued that the admission of the evidence violated the pretrial order and constituted unfair surprise. The pretrial order recited that the State did not intend to use evidence of prior crimes. The appellants also contend the court erred in failing to conduct a hearing before admitting Mrs. Rogers’ testimony. The trial court held no hearing to weigh the probative value of the evidence against its prejudicial effect. Finally, the appellants contend neither the State nor the trial court specified the material fact concerning which the evidence was probative, as required by K.S.A. 60-455, and no limiting instruction was given.
The State contends the evidence was admissible independent of K.S.A. 60-455 as part of the res gestae.
On its face, Mrs. Rogers’ testimony is evidence of a crime committed by some person(s). In conjunction with other testimony the clear inference is that the appellants stole the license tag. That evidence could have created an inference that the appellants were disposed to commit the robbery. K.S.A. 60-455 prohibits admission of such evidence unless it is relevant to prove one of eight specific factors. But, in certain instances, Kansas case law permits admission of such evidence independent of 60-455. Acts done or declarations made before, during or after the happening of the principal occurrence may be admissible as part of the res gestae where the acts are so closely connected with it as to form in reality a part of the occurrence. State v. Gilder, 223 Kan. 220, 228, 574 P.2d 196 (1977); State v. Ferris, 222 Kan. 515, 517, 565 P.2d 275 (1977).
In State v. Ferris, 222 Kan. at 517, this court held that testimony describing a purse snatching by the defendant prior to the aggravated battery against a law enforcement officer was admissible as part of the res gestae. In State v. Hale, 206 Kan. 521, 525, 479 P.2d 902 (1971), we held that evidence of the defendant’s attempt to conceal his crime was admissible as part of the res gestae, stating:
“Likewise, the evidence relating to the defendant’s plans and preparations to destroy his place of refuge by setting it on fire may properly be considered as part and parcel of his general scheme and as falling within the res gestae. The fashioning of an incendiary device, as testified to by his erstwhile friend, Judy, plus his actions in strewing clothing and heating elements about the house may logically be said to negative an innocent occupancy of the building. Such elaborate preparations for the destruction of the house would seem more consistent with an intention to cover up or conceal all traces of the burglary and resulting theft.”
The opinion of the court in State v. Platz, 214 Kan. 74, 76-77, 519 P.2d 1097 (1974), bears directly upon this point, where the court said:
“Since the firearm was used to assist in carrying out the crime and to keep another person from coming to the scene of the crime this testimony was part of the res gestae. Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where such are so closely connected with it as to form in reality a part of the occurrence. [Citations omitted.] The fact that evidence bearing upon the crime charged may indicate the commission of another crime does not render such evidence inadmissible if it is relevant to establish the guilt or innocence of the defendant with respect to the crime charged. (State v. Martin, 175 Kan. 373, 385, 265 P.2d 297.)”
The theft of the license tag was so closely related in time to the aggravated robbery that we find it was part of the occurrence and admissible as part of the res gestae. The tag was stolen the night immediately before the robbery and was next seen on the getaway vehicle. Since the vehicle had no license tag before the appellants borrowed it, the stolen tag was so closely connected with the vehicle as to form in reality a part of the occurrence. The stolen tag served to conceal who committed the crime and was used to avoid apprehension. A car without a tag was likely to draw police attention. As it turned out, the license tag was the primary means of identifying the getaway vehicle and locating the appellants after the robbery. Evidence of the license tag’s origin was relevant to further explain all of the circumstances surrounding the principal crime.
Since Mrs. Rogers’ testimony was properly admissible wholly aside from K.S.A. 60-455, other arguments on this point by the appellants lack merit.
Owens asserts only one additional error. He contends the trial court erred in giving Instruction No. 6, which reads:
“Voluntary intoxication is not a defense to the crime charged, aggravated robbery. The state must show each element of the crime charged as set out in Instruction Number 5 and that the conduct of the defendant was wilful or wanton without regard to their state of sobriety.”
Instruction No. 6 was proper as to McDaniel. Voluntary intoxication is not a defense to a general intent crime, although it may be used to demonstrate an inability to form a particular state of mind necessary for a specific intent crime. State v. Rueckert, 221 Kan. 727, 732-33, 561 P.2d 850 (1977); See State v. Smith, 225 Kan. 796, 799, 594 P.2d 218 (1979); State v. Cunningham, 222 Kan. 704, 707, 567 P.2d 879 (1977); State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975). McDaniel was convicted as a principal for the crime of aggravated robbery. Aggravated robbery is not a specific intent crime, it requires only general criminal intent. See State v. Cunningham, 222 Kan. at 707; State v. Rueckert, 221 Kan. at 733; State v. Thompson, 221 Kan. 165, 174, 558 P.2d 1079 (1976).
Owens contends the trial court should have given PIK Crim. 54.12, which states:
“Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.”
Owens was charged as a principal for aggravated robbery, but all the evidence tended to indicate Owens was merely an aider and abettor. Owens had consumed large amounts of alcohol the day-of the robbery. While the appellants were at the station Owens remained in the passenger seat of the car. Owens’ only action was to shut off the car engine when so instructed by Martin. The record is unclear whether Owens spoke any words while at the station. When the appellants were apprehended Owens was searched and the gun was found in his pocket. When ruling upon the motion for new trial, the court expressed its belief that Owens “was found guilty as an accessory, aiding and abetting.”
Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor; however, when a person knowingly associates with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. State v. Wilson & Wentworth, 221 Kan. 359, 367, 559 P.2d 374 (1977); see State v. Schriner, 215 Kan. 86, 523 P.2d 703 (1974). A person is criminally responsible for a crime committed by others if that person intentionally aids and abets the others in the commission of the crime. State v. Goering, 225 Kan. 755, 758, 594 P.2d 194 (1979); see State v. Edwards, 209 Kan. 681, 498 P.2d 48 (1972). K.S.A. 21-3205(1) states that “[a] person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
The trial court gave Instruction No. 8, on aiding and abetting. It reads:
“A person is criminally responsible for the conduct of another when either before or during the commission of a crime, and with the intent to promote or assist in the commission of a crime, he intentionally aids or advises the other to commit the crime. To be guilty of aiding and abetting in the commission of a crime, the defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed.”
When, as here, the evidence indicates Owens could only be found guilty of aggravated robbery as an aider and abettor, his specific intent is an issue, and voluntary intoxication may indicate an absence of the required intent and be a defense. Accordingly, the trial court erred by not instructing the jury in accordance with PIK Crim. 54.12. For the reasons stated the conviction of Owens must be reversed.
McDaniel contends it was prejudicial error for the prosecutor to express his personal belief of the appellants’ guilt. During closing argument the prosecutor told the jury, “I personally don’t think there is any question as to the guilt and responsibility' of these individuals for their action here in Wyandotte County.” Neither counsel objected to the prosecutor’s comment. It is improper for a prosecutor to inject into closing argument his personal belief as to the guilt of the defendant. State v. Murrell, 224 Kan. 689, 696, 585 P.2d 1017 (1978); see State v. McClain, 216 Kan. 602, 607-08, 533 P.2d 1277 (1975). However, the rule is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged. State v. Dorsey, 224 Kan. 152, Syl. ¶ 3, 578 P.2d 261 (1978); State v. Watkins, 219 Kan. 81, Syl. ¶ 5, 547 P.2d 810 (1976); State v. McClain, 216 Kan. at 608.
McDaniel contends the trial court erred in giving Instruction No. 9 on intent, which reads as follows:
“There is a presumption that a person intends all the natural and probable consequences of his voluntary acts, and this presumption of law will prevail unless, after a consideration of all the evidence, facts and circumstances bearing upon the point, you have a reasonable doubt of the existence of such intent.”
We considered a similar instruction in State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022 (1980), where we stated:
“Defendant next contends that the trial court erred in giving instruction 5 which followed PIK Crim. 54.01, as follows:
“ ‘There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.’
Defendant contends that this instruction could have been interpreted by the jury as either a conclusive presumption on the issue of intent, or as a burden-shifting presumption, in violation of the rationale of Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979). Trial was held on May 9, 1978; Sandstrom
was not decided until June 18, 1979. PIK Crim. 54.01 was discussed at length by our Court of Appeals in the light of Sandstrom in the recent case of State v. Acheson, 3 Kan. App. 2d 705, 601 P.2d 375 (1979), and we need not repeat what was there said. We hold that the two-sentence instruction given creates ‘a permissive presumption and does not shift the burden of proof to the defendant,’ as concluded by the Court of Appeals.”
Here, PIK Crim. 54.01 was not the instruction given by the trial court, but Instruction No. 9 is for all practical purposes identical in its meaning and does not create a “conclusive presumption” or shift the burden of proof. The Court of Appeals analysis in State v. Acheson, 3 Kan. App. 2d 705, 715-17, 601 P.2d 375 (1979), is lengthy, but nevertheless correctly outlines the factors to be considered. Instruction No. 7 given to the jury was identical to the curative instruction given in State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976), and State v. Acheson, 3 Kan. App. 2d at 714. Despite our decision upholding the instruction, the proper instruction to be used is the revised PIK Crim. 54.01 (1979 Supp.).
McDaniel attacks the constitutionality of K.S.A. 1979 Supp. 21-4618, which requires denial of probation. He contends the statute is constitutionally impermissible on three grounds: (1) It denies him equal protection of the laws; (2) it deprives him of liberty without due process of law; (3) it constitutes cruel and unusual punishment. We disposed of the same three arguments in State v. Freeman, 223 Kan. 362, Syl. ¶ ¶ 4, 5, 6, 574 P.2d 950 (1978), where we resolved the equal protection and due process arguments against the defendant, and held:
“A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”
“K.S.A. 1977 Supp. 21-4618 and 22-3717(8), which deny the privileges of probation and parole and require mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime, are not constitutionally impermissible as denying equal protection of the law.”
“In light of the Kansas sentencing statute, K.S.A. 21-4501(f>), the provisions of K.S.A. 1977 Supp. 21-4618 and 22-3717(8) denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of murder in the second degree are not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court’s prerogatives.”
See City of Junction City v. Griffin, 227 Kan. 332, 338-39, 607 P.2d 459 (1980).
The appellant’s third constitutional challenge is not amenable to brief disposition. McDaniel contends the sentence was disproportionate to the crime and shocks the conscience. He emphasizes the fact that he was intoxicated, that no one was injured, and the proceeds of the robbery were minimal.
The recent United States Supreme Court decision, Rummel v. Estelle, 445 U.S. 263, 63 L.Ed.2d 382, 100 S.Ct. 1133 (1980), is the latest word of the United States Supreme Court where a criminal defendant’s sentence is challenged as cruel and unusual punishment in violation of the 8th and 14th Amendments to the United States Constitution. Writing for a five-justice majority, Justice Rehnquist rejects a criminal defendant’s contention that a sentence of life imprisonment was disproportionate to the underlying felony. Rummel had been convicted of three non-violent property-related offenses which involved a total of $230. In 1964 Rummel pleaded guilty to fraudulent use of a credit card ($80) and was sentenced to three years in the state penitentiary. In 1969 Rummel pleaded guilty to passing a forged check ($28.36) and was sentenced to four years’ confinement. In 1973 Rummel was convicted of obtaining $120.75 by false pretenses. Rummel was sentenced to this last offense to life imprisonment under the Texas recidivist statute. Justice Rehnquist recognizes that prior United States Supreme Court opinions used a disproportionality analysis when addressing cruel and unusual punishment charges. However, those cases are now deemed distinguishable because they dealt with a death penalty or punishment of an extraordinary nature. Justice Rehnquist writes:
“Given the unique nature of the punishments considered in Weems [217 U.S. 349, 54 L.Ed. 793, 30 S.Ct. 544 (1910)] and in the death-penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.” 445 U.S. at 274.
The Rummel decision is important here because the Kansas Supreme Court has heretofore adopted a disproportionality analysis in response to United States Supreme Court decisions.
Section 9 of the Kansas Bill of Rights prohibits the infliction of cruel or unusual punishment. As early as 1890 this court in State v. White, 44 Kan. 514, 520-21, 25 Pac. 33 (1890), suggested that section 9 of the Kansas Bill of Rights “relates to the kind of punishment to be inflicted, and not to its duration.” See Cipolla v. State, 207 Kan. 822, 824, 486 P.2d 1391 (1971).
In State v. Shaw, 201 Kan. 248, 250, 440 P.2d 570 (1968), this court denied a defendant’s constitutional challenge to the Habitual Criminal Act stating:
“In any event we consider it a legislative function to fix and prescribe the penalties for violating the criminal statutes of this state, and not the concern of the courts. This principle was recognized by this court in In re MacLean, 147 Kan. 678, 78 P.2d 855, where we said:
“ ‘. . . The rule is well settled that the power to define crimes and to prescribe punishment for their violation is the function of the legislature . . .’ (p. 681.)
“The legislature has spoken in the case of the habitual criminal and we may not presume to interfere with its prerogative absent some clear infirmity which renders the sentence void. In the present case we perceive nothing about the sentence imposed by the trial court which may be said to violate any of the defendant’s rights, constitutional or otherwise. This is true despite the discretion granted a trial court in sentencing a third time loser, but withheld where a second offender is concerned.”
The first opinion where this court recognized a basis for reviewing an alleged disproportionate sentence was State v. Coutcher, 198 Kan. 282, 287, 424 P.2d 865 (1967), wherein we stated:
“As applied to the facts in this case, can it be said the sentence of eighteen years to the state penitentiary imposes a cruel and unusual punishment upon the appellant?
“While the prohibition of the Eighth Amendment to the United States Constitution has generally been considered to be directed against physical cruelty and torture, there is authority to the effect that it also may be invoked against excessively ánd disproportionately long prison sentences.
“The appellant relies upon this rule established years ago by the United States Supreme Court in Weems v. United States, 217 U.S. 349, 54 L.Ed. 793, 30 S.Ct. 544 (1910). In that opinion the court said:
“ ‘What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. McDonald v. Commonwealth, 173 Massachusetts, 322. The court, however, in that case conceded the possibility “that imprisonment in the State prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.’ . . .” (p. 368.)
Our decisions discussing cruel and unusual punishment in the decade after Coutcher added little in the way of substantive analysis. The decisions upholding sentences under the Habitual Criminal Act consistently referred to the controlling nature of legislative enactments. In State v. Pettay, 216 Kan. 555, 558, 532 P.2d 1289 (1975), we held:
“When a sentence is fixed by the trial court within permissible limits of the applicable statutes the sentence is not erroneous. In the absence of special circumstances showing an abuse of judicial discretion it cannot be determined on appeal that such a sentence is excessive or so disproportionate to the offense as to constitute cruel and unusual punishment.”
See State v. Steward, 219 Kan. 256, 270, 547 P.2d 773 (1976); State v. Bradley, 215 Kan. 642, 648, 527 P.2d 988 (1974); State v. Collins, 214 Kan. 247, 248, 519 P.2d 1396 (1974); State v. Miles, 213 Kan. 245, 247, 515 P.2d 742 (1973); Cipolla v. State, 207 Kan. at 824-25. No guidelines were developed to determine whether a particular sentence might be disproportionate or excessive.
We fully embraced the disproportionality analysis in State v. Freeman, 223 Kan. 362. Barbara Ann Freeman argued the mandatory minimum sentence imposed on persons who commit Article 34 crimes using a firearm constitutes cruel and unusual punishment. K.S.A. 1977 Supp. 21-4618. We responded to that argument by analyzing many court decisions, beginning with Weems v. United States, 217 U.S. 349, 54 L.Ed. 793, 30 S.Ct. 544 (1910) and Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972). We stated that whether a punishment is cruel and unusual must be determined on a case-by-case basis. In any event, the imposition of a mandatory sentence without right of probation and parole was not deemed cruel and unusual per se. State v. Freeman, 223 Kan. at 365.
The decision in Freeman made substantive additions to our concept of a disproportionate sentence as cruel and unusual punishment. As an underlying principle we stated:
“Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (State v. Coutcher, 198 Kan. 282, 287, 424 P.2d 865; Cipolla v. State, [207 Kan. 822] pp. 824-25; Anno: Cruel Punishment — Length of Sentence, 33 A.L.R.3d 335.)” 223 Kan. at 367.
The practical application of that principle was considered by the California Supreme Court in In re Lynch, 8 Cal. 3d 410, 424-29, 105 Cal. Rptr. 217, 503 P.2d 921 (1972). The California court relied on several United States Supreme Court decisions and devised three techniques to aid in administering the principle. In Freeman we adopted a modified version of the California court’s three techniques, stating:
“In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
Justice Powell, dissenting in Rummel v. Estelle, 445 U.S. at 285, recites three nearly identical “objective factors” which are included in disproportionality analysis.
Rummel is a retreat from the philosophy which spawned the three techniques recited in Freeman. The court in Rummel essentially rejects the proposition that disproportionality analysis is required by the 8th Amendment. The length of sentences imposed on felons is solely a legislative decision. As the Rummel dissent reflects, the factors enunciated in the three techniques of Freeman were derived from Weems v. United States, 217 U.S. 349, and the United States Supreme Court’s death penalty cases. See Rummel v. Estelle, 445 U.S. at 285. See also Coker v. Georgia, 433 U.S. 584, 53 L.Ed.2d 982, 97 S.Ct. 2861 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909 (1976); Furman v. Georgia, 408 U.S. 238; In re Lynch, 8 Cal. 3d at 425-29. The decisions involve “unique” punishments and are of “limited assistance” in deciding the constitutionality of a lengthy prison sentence. Rummel v. Estelle, 445 U.S. at 272. There is no need to compare a particular penalty with the punishment imposed for the same offense in other jurisdictions. “Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.” Rummell v. Estelle, 445 U.S. at 282.
The Rummel decision forces this court to reconsider its reliance on the 8th Amendment prohibition against cruel or unusual punishment. According to Rummel we are not required by the 8th Amendment to question the length of prison sentences.
The fixing and prescribing of penalties for violating the criminal statutes of this state is considered a legislative function. See State v. Freeman, 223 Kan. at 369; Cipolla v. State, 207 Kan. at 824; State v. Shaw, 201 Kan. at 250; In re MacLean, 147 Kan. 678, 681, 78 P.2d 855 (1938). A sentence within limits set by the legislature is presumed valid, but may be challenged as an abuse of trial court discretion. See State v. Lovelace, 227 Kan. 348, 354, 607 P.2d 49 (1980); State v. Goering, 225 Kan. 755, 761, 594 P.2d 194 (1979); State v. Coe, 223 Kan. 153, 167, 574 P.2d 929 (1977); State v. Buckner, 223 Kan. 138, 150, 574 P.2d 918 (1977); State v. Steward, 219 Kan. at 256. Trial judges must articulate the facts and factors considered by the court in imposing sentence. K.S.A. 1979 Supp. 21-4603(3); State v. Goering, 225 Kan. at 760-61; State v. Buckner, 223 Kan. at 151.
We now hold section 9 of the Kansas Bill of Rights may be invoked against an excessive or disproportionate sentence. The nature of a sentence as cruel or unusual encompasses duration. The techniques applied in Freeman will continue to guide our constitutional inquiry. State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980).
The sentence imposed on McDaniel is not excessive or disproportionate. In Kansas, aggravated robbery is a class B felony, the same as murder in the second degree. The trial court set McDaniel’s minimum and maximum sentence at the lowest permissible. The minimum for a class B felony may be set at no less than five years nor more than fifteen years and the maximum shall be fixed by the court at not less than twenty years nor more than life. K.S.A. 1979 Supp. 21-4501. Aggravated robbery is committed regardless of whether anyone is injured by the firearm; it is an inherently dangerous felony. McDaniel was found guilty as a principal. He has indicated no great disparity between the punishment imposed for this crime in Kansas and in other jurisdictions. The small amount of money taken in the robbery has little bearing on the punishment imposed for this particular crime. If more money had been available the proceeds of the aggravated robbery probably would have been higher.
The judgment of the lower court is affirmed as to the appellant Joe McDaniel, but the conviction and judgment of Boyd S. Owens, Jr., is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Fromme, J.:
The State filed an interlocutory appeal from an order suppressing evidence of the result of a gas chromatograph intoximeter test in an action filed against the defendant, Robert B. Young, for driving while under the influence of intoxicating liquor (DWI). This interlocutory appeal by the State is authorized by K.S.A. 1979 Supp. 22-3603. The district court on defendant’s motion to suppress, among other things, found:
“1. That there is no substantial cost to the State of Kansas by way of time or money to make a sample of breath available to the defendant when the breath samples are taken for alcohol testing with the testing to be later done.
“2. [Not pertinent.]
“3. Concerning the supplemental proposition as to whether or not it should be the duty of the defendant to request a sample or whether it should be the duty of the State to advise the defendant that a sample of the defendant’s breath will be made available to him if the defendant wants one, the Colorado decision is persuasive. [Garcia v. Dist. Court, 21st Jud. Dist., 197 Colo. 38, 589 P.2d 924 (1979).]
“4. [Not pertinent.]
“5. It becomes the State’s obligation just as it is a State obligation for example to furnish the Miranda warning without being requested by the defendant to be advised of his rights and as a practical matter when you put the obligation on the State the underlying principle here stated will be carried out.
“6. That said decision above set forth relates only to breath samples taken for the purpose of later testing. It does not relate to direct breath testing by the subject breathing directly into a machine.
“7. That the defendant’s motion to suppress the results of said gas chromatograph intoximeter test and/or results of said breathalyzer test is granted and that said results are suppressed.”
We note at the outset, contrary to the inference created by the court’s finding number seven (7), that no Breathalyzer test was administered in this case. The test given made use of an Intoximeter Mark IV machine, which is a gas chromatograph test machine. Some of the pertinent differences in the two machines will be covered later.
Before exploring the primary question presented, a preliminary question should be answered. The defendant states that the parties stipulated before the hearing on the motion to suppress that the factual issue to be determined by the trial court was whether or not a substantial expenditure of time or money would be involved in collecting an extra sample of defendant’s breath for defendant’s use and independent testing. The defendant indicates it was agreed by both sides that the evidence of the test result should be suppressed if no substantial expenditure of time or money would be required of the State in furnishing defendants in DWI cases extra breath samples.
When the facts material to a decision of the court on a motion to suppress evidence are not in dispute the question of whether to suppress becomes a question of law. Points of law pertaining to a case are to be determined judicially regardless of whether the controlling law has been settled by agreement between the parties litigant. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). It has frequently been said decisions on questions of law must rest upon the court, uninfluenced by law stipulations by the parties. Accordingly stipulations of the parties litigant as to what the law is are ineffective and not controlling on the court. Urban Renewal Agency v. Reed, 211 Kan. 705, 712, 508 P.2d 1227 (1973). It is only agreements and admissions as to fact which are within the authority of the parties litigant or their attorneys. A court may not be bound by agreements and admissions of the parties as to matters of law or legal conclusions. In re Estate of Maguire, 204 Kan. 686, 691, 466 P.2d 358 (1970).
Therefore neither the trial court nor this court on appeal is bound by the agreement of these parties that the blood alcohol test should be suppressed on a finding the costs of furnishing an extra breath sample to a defendant would be negligible. It is not clear to this court what the cost of an extra breath sample has to do with defendant’s constitutional right to due process. If defendant’s constitutional right to due process requires that defendant be furnished a sample of his breath for independent testing, the cost thereof cannot be the single controlling factor. The trial court was correct in not limiting its decision to the single question of cost.
Before turning to the primary question it might be helpful to set out some preliminary information on breath testing. There are many different types of machines to test the blood alcohol content by breath used in the United States. In Kansas four types of machines are in use according to the brief of amicus curiae. The brand names are — Intoximeter Mark IV, Intoxilizer, Aleo Analyzer and Breathalyzer. The machine used in the present case was the Intoximeter Mark IV, which makes use of a gas chromatograph intoximeter test. All machines presently in use in the State of Kansas must be certified for use periodically by the Kansas Department of Health and Environment. Each machine must be certified or any test result from such machine is not admissible in court.
The Intoximeter Mark IV used in this case will test breath blown directly into the machine. It is also equipped for indirect breath input. The indirect method, which was used in the present case, involves the use of what is referred to as an indium tube for capturing breath at the scene of an arrest. The indium tube is a soft metal device used to capture and preserve a breath sample for later examination and analysis in the Intoximeter Mark IV machine. The tube originally is a single piece but when the breath sample is blown into the tube, the tube can then be crimped to hold the sample breath in three separate compartments. The breath in each compartment can then be tested separately. These containers containing a breath sample are delivered to those locations in the state where the Intoximeter Mark IV testing machines are maintained. The required practice in Kansas is to test all three samples available in each indium tube. The triple testing maintains scientific reliability. The testing process totally expends or uses up the breath sample tested. Testing of only one of the three compartment samples is not regarded as scientifically acceptable or valid. The Kansas Highway Patrol uses the system of indirect breath input with the Intoximeter Mark IV machine. The highway patrol has some 300 indium capturing units and only eight of the Intoximeter Mark IV analyzing units.
Another type of machine which appears to be in use in a considerable number of states including Kansas is known as the Breathalyzer. This machine makes use of an entirely different method of testing the breath. The person being tested blows directly into the machine. The rationale of this chemical test is dependent on the reaction of hydrocarbon breath contents to potassium dichromate in a sulfuric acid solution contained in a test ampoule to induce and record color changes. These color changes in the dichromate are then measured and through internal machine mechanisms the result is presented as a blood alcohol percent. 2 Erwin’s Defense of Drunk Driving Cases p. 22-2.1 (3d ed. 1979). Accordingly, the reliability of the test depends on the proper amount and mixture of chemicals in test ampoules. The breath of the person tested is blown directly into the machine, interacts with the chemicals, and is used up or expended in making the test.
The principle of gas chromatography breath testing, as when the Intoximeter Mark IV is used, is quite different from that of the Breathalyzer. The main function of the intoximeter is to separate the alcohol in the breath sample and measure its amount. Separation is achieved by a suitable absorption column, and measurement is by a flame ionization detector. The separated ethyl alcohol passes into the flame ionization detector where the burning of the alcohol creates an electronic signal. An amplifier magnifies this signal which then activates a recorder and digital readout component. 2 Erwin’s Defense of Drunk Driving Cases p. 23-8.3.
We turn now to the primary question in this case. Is it the State’s obligation to furnish a person accused of driving while under the influence of intoxicating liquor (DWI) with an extra breath sample for his own testing procedures?
There are several sections of Kansas statutes bearing on the questions presented in this case. K.S.A. 1979 Supp. 8-1005 provides:
“(a) In any criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, or the commission of vehicular homicide or manslaughter while under the influence of intoxicating liquor, or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following presumptions:
“(1) If there was at that time less than 0.10 percent by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
“(2) If there was at the time 0.10 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
“(b) For the purpose of this section, percent by weight of alcohol shall be based upon grams of alcohol per one hundred (100) milliliters of blood.”
It is noted that under this statute evidence of the amount of alcohol in the defendant’s blood at the time of the specific violations listed in the statute may be shown by chemical analysis of defendant’s breath as well as blood and other body substances. This court has recognized the use of chemical tests to determine blood alcohol content by breath analysis. City of Abilene v. Hall, 202 Kan. 636, 451 P.2d 188 (1969).
The next statute to be considered is K.S.A. 1979 Supp. 8-1001 which in pertinent part reads:
“(a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer.”
In this statute provision is made for taking a chemical test of breath or blood. The later provisions in this statute regulate the withdrawal of blood, specify the persons authorized to do so, and grant such persons immunity from liability when such act is performed in a reasonable manner in accordance with generally accepted medical standards. The final provision outlines the rights of a defendant on refusal to submit to such test.
The final statutory provision pertinent to our present case is K.S.A. 8-1004 which provides:
“Without limiting or affecting the provisions of K.S.A. 8-1001 to 8-1003, the person tested shall have a reasonable opportunity to have an additional chemical test by a physician of his or her own choosing. In case the officer refuses to permit such additional chemical test to be taken, then the original test shall not be competent in evidence.”
The Court of Appeals in City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 576 P.2d 239, rev. denied 225 Kan. 843 (1978), held that under the latter statute a Breathalyzer test operator is not required to inform the person being tested of his right to have an independent test taken by some other authorized person or agency. This holding was based largely on this court’s decision in Hazlett v. Motor Vehicle Department, 195 Kan. 439, Syl. ¶ 1, 407 P.2d 551 (1965), which holds:
“Under the provisions of K.S.A. 8-1001 and related statutes, there is no duty placed on an arresting officer, making an arrest for the offense of driving while under the influence of intoxicating liquor, to explain the consequences of a refusal to submit to a blood alcohol chemical test.”
In Hazlett the court was impressed with the rule that all persons are presumed to know and are bound to take notice of general public laws of the state where they reside, as well as the legal effect of their acts. In State v. Mezins, 4 Kan. App. 2d 292, 294, 605 P.2d 159, rev. denied 221 Kan. 928 (1980), the Court of Appeals concluded there is no statutory authority or rule of law compelling an arresting officer to inform a motorist of his right to refuse a chemical blood test under K.S.A. 1979 Supp. 8-1001. We believe the decision of the Court of Appeals is sound.
The cases on the present subject from other states are not too helpful on the primary question. Several of the cases such as State v. Michener, 25 Or. App. 523, 550 P.2d 449 (1976), Scales v. City Court of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979), and People v. Hitch, 12 Cal. 3rd 641, 117 Cal. Rptr. 9, 527 P.2d 361 (1974), have excluded the test results of the Breathalyzer as a sanction against the State for failure to preserve the test ampoule, its contents, and the reference ampoule used in a Breathalyzer test. These courts have held these items constitute material evidence on the issue of the driver’s guilt or innocence. The courts seem to rely in these cases on Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). In Brady the high court held the suppression by the State of an accomplice’s confession violated the due process clause of the Fourteenth Amendment. The prosecution in Brady had refused the request of Brady’s counsel to examine an accomplice’s extrajudicial statement admitting the crime. A new trial was ordered on the question of punishment only.
We have held in accordance with the thrust of the Brady decision that prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. State v. Kelly, 216 Kan. 31, 531 P.2d 60 (1975). However, such cases hardly seem applicable to the facts of our present case.
Assuming arguendo that the test ampoule and reference ampoule used in a particular Breathalyzer test should be made available to each defendant, no test ampoule or reference ampoule is used when the gas chromatography method is employed. Using the Intoximeter Mark IV machine the breath sample is used up or expended in the testing process and is no longer available. Therefore, the prosecution cannot be accused of failing or refusing to disclose exculpatory evidence to the defendant which does not exist. There never is a test ampoule or reference ampoule used in the gas chromatography test. The test result in this case of 0.20 percent by weight of alcohol in the defendant’s blood was made known to defendant. In addition the result of the test was inculpatory and cannot be considered exculpatory evidence. There was no attempt by defendant to show the test result was unreliable or it did not comport with coordination and speech tests.
This court holds in State v. Lightle, 210 Kan. 415, 502 P.2d 834 (1972), cert. denied 410 U.S. 941 (1973), that it is not error to refuse to suppress tests made on two pills identified as “Dilaudid” when the pills have been used up and expended in the testing process and the State could not produce the pills for independent testing by the defendant. This court said:
“A request [to produce] is hardly reasonable if the object has ceased to exist by reason of valid conduct bringing about its nonexistence, such as for the making of a necessary chemical analysis. Other examples come to mind such as a blood or breath test to determine intoxication, or analysis of minute particles of any kind.” 210 Kan. at 416.
There are cases from other jurisdictions, such as Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979), and Garcia v. Dist. Court, 21st Jud. Dist. 197 Colo. 38, 589 P.2d 924 (1979), which holds a defendant accused of DWI must be advised at the time of the arrest that he or she is entitled to a second sample of breath to be used for independent testing and on request the State is required to furnish an extra sample of the breath of an accused. It appears somewhat strange, however, that the State should be required to anticipate defense strategy, obtain a breath sample, and pay for part of the expense of a second test for the accused’s use prior to entry of his plea. The basis for this requirement in these cases is not well defined. These courts seem to be aware that other courts do not require an extra sample. They hold in a general way, however, that it is incumbent on the State to employ regular procedures to preserve evidence for the defendant. They require a State agent, in the regular performance of his duties, to reasonably foresee what evidence “might be favorable to the accused” and to obtain and preserve the same for defendant’s use. Baca v. Smith, 124 Ariz. at 355. The difficulty of accepting this logic in the present case is apparent. The item in question here is merely a sample of breath from the accused himself, which he alone can furnish for independent testing by his own physician as authorized by K.S.A. 8-1004. As evidence, the defendant’s breath can hardly be equated with an unchanging physical object which is relevant evidence.
There are also other cases such as State v. Grose, 45 Ohio Misc. 1, 340 N.E.2d 441 (1975), and State v. Teare, 135 N.J. Super. 19, 342 A.2d 556 (1975), which hold that the question of whether to require the State to preserve test ampoules resolves itself into a determination of whether proper safeguards are present in the law of the particular state to assure reasonably accurate test results. In these cases preservation of ampoules is not required. After a test has been properly administered and analyzed by a qualified individual approved by the Director of Health or some such agency, destruction of test ampoules has been held not a denial of due process of law.
In Kansas we believe the statutes previously quoted provide proper safeguards to assure reasonably accurate test results and to enable the accused, on request, to secure any additional chemical test by a physician of his or her own choosing, which the accused may desire. See K.S.A. 8-1004. The language of the Kansas statutes is clear. K.S.A. 1979 Supp. 8-1005 provides that evidence of the amount of alcohol in the defendant’s blood at the time he is alleged to have been DWI as shown by chemical analysis of the defendant’s breath may be admitted in evidence at trial. Under K.S.A. 1979 Supp. 8-1001 any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath. State v. Garner, 227 Kan. 566, 608 P.2d 1321 (1980). If the person arrested refuses a request to submit to the test, the test shall not be given. The arresting officer makes a sworn report of the refusal, a due process hearing is provided, and thereafter the person’s driver’s license is lifted unless reasonable grounds for refusal are established. Under K.S.A. 8-1004 the accused shall be given a reasonable opportunity to have his or her own physician administer an additional chemical test. If the arresting officer refuses to afford the accused this right on request, the original test may not be used in evidence against the accused.
Under the safeguards built into K.S.A. 1979 Supp. 8-1001, K.S.A. 8-1004 and K.S.A. 1979 Supp. 8-1005, the failure of the State to automatically furnish an accused with a sample of his own breath for independent testing is not a denial of due process. The plain wording of K.S.A. 8-1004 gives the person tested for blood alcohol content the right to obtain, on request, an additional chemical test by a physician of his or her own choosing, and it is not an obligation of the State to advise the person of this statutory right. In the absence of any request by the defendant in this case to obtain an additional chemical test by a physician of his own choosing, it was error for the trial court to suppress evidence of the results of a gas chromatograph intoximeter test as a sanction for the State’s failure to make a sample of defendant’s breath available to the defendant.
The order suppressing the test result is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Fromme, J.:
An unpublished opinion was filed in this case on April 5, 1980, affirming a dismissal of the case by the district court. A motion for rehearing was timely filed and later granted on May 27, 1980. The motion for rehearing was pending in this court when L. 1980, ch. 236 was passed by the 1980 Kansas legislature and became effective. (H.' B. 3228.) Generally it may be said the legislature in passing H. B. 3228 granted to the district and appellate courts jurisdiction to hear and determine appeals from final orders of the Board of Tax Appeals (the Board) which orders may have been appealed to the court and dismissed after January 1,1980, but before the effective date of the act, April 16, 1980. This case falls in that time span.
Our original unpublished opinion was based on Board of Johnson County Comm’rs v. Ameq, Inc., 227 Kan. 93, 605 P.2d 119 (1980). In Ameq this court determined that when the State Board of Tax Appeals enters an order favorable to the taxpayer in a proceeding brought to the Board seeking recovery of taxes paid under protest, the county taxing officials had been given no right of appeal by the legislature in K.S.A. 74-2426, 60-2101(d), or 79-2005.
We are here and now confronted with the primary question of whether the retroactive application of H.B. 3228 to this case is constitutionally permissible. If it is, the case must be remanded to the district court for hearing.
The background facts of this case, although not absolutely necessary to a determination of issues, will be helpful in understanding the questions presented. The defendants-appellees are I. Nadel and Herbert Gussman, a partnership doing business as Nadel and Gussman. The partnership paid its ad valorem taxes for 1975 on oil properties in Greenwood County under protest. It then filed application for refund of taxes paid under protest pursuant to K.S.A. 79-2005 and appealed to the Board. The Board made and entered its final order on the application for refund in favor of the taxpayer, reduced the 1975 appraised valuations on these oil properties by 20%, and ordered Greenwood County to refund the excess taxes paid. The Greenwood County officials perfected an appeal from said order to the District Court of Shawnee County under the provisions of K.S.A. 60-2101(a) [Cor-rick], now K.S.A. 1979 Supp. 60-2101(d). They contended:
(1) that appellees’ written protest statement did not comply with K.S.A. 79-2005 by failing clearly to state the grounds of the protest and, therefore, failed to confer jurisdiction upon said Board;
(2) that the validity of the 1975 Oil and Gas Manual may not be challenged or determined in proceedings upon an application for refund of taxes paid under protest under K.S.A. 79-2005 before the Board and that an alleged failure of the director cannot furnish the jurisdictional basis for granting relief in a tax protest application under said statute;
(3) that the Director of Property Valuation has the exclusive duty and responsibility to prepare and promulgate to county clerks and assessors such manuals, and that the Board has no jurisdiction to revise, abrogate or nullify the same in such proceedings;
(4) that the Board failed to make findings of fact and conclusions of law clearly disclosing the basis of said purported order;
(5) that there was no substantial competent evidence supporting the purported findings of fact and conclusions of law in said purported order;
(6) that said purported findings of fact and conclusions of law failed to support the said purported order; and
(7) that the said purported order was unreasonable, arbitrary, capricious, void, illegal and of no force or effect.
The district court concluded it had no jurisdiction to hear the matter and dismissed the case. An appeal eventually came to this court on the order of dismissal and as previously recited the dismissal was first affirmed by this court and then a motion for rehearing was granted.
The part of H.B. 3228 pertinent to this appeal is as follows:
“(fl The district courts of this state and its appellate courts shall have jurisdiction to hear and determine any appeals, or purported appeals, which may have been dismissed after. January 1,1980, but before the effective date of this act, from final orders of the board of tax appeals concerning tax protests, tax grievances, tax exemption statutes or original proceedings before the board under the provisions of K.S.A. 1979 Supp. 60-2101, subsections (a), (b) and (d), or any of their statutory predecessors, under the provisions of K.S.A. 1979 Supp. 74-2426, or any of its statutory predecessors, or under the provisions of K.S.A. 79-2005, or any of its statutory predecessors. Such jurisdiction shall be exercised by the courts in all cases where such appeals, or purported appeals, have not been finally disposed of either (1) upon the merits thereof or, (2) for lack of substantial compliance with the requirements for appeal under the statutes mentioned above or (3) upon some grounds other than the dismissal thereof on the basis of the purported lack of any appellate jurisdiction over such appeal. Any appeal or purported appeal from such final order of the board under any of the statutes mentioned above which may have been dismissed, or which may hereafter be dismissed, by a district court or appellate court on the basis that the statutes mentioned above, or any of them, did not apply to such appeal, shall be reinstated before such court immediately upon the request of any party to such appeal, and the courts shall thereafter exercise further appellate jurisdiction over such appeal in the same manner and to the same extent as if such appeal had not been dismissed.” L. 1980, ch. 236, § 1 (f).
It is apparent a retroactive application is built into the statute by expressly extending jurisdiction to hear those appeals dismissed after January 1, 1980, but before April 16, 1980 (the effective date of the act). Two questions immediately surface. First, will the statute have the effect of disturbing vested rights, and second, is the statute constitutionally permissible?
In examining these questions we start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done. State ex rel. Stephan v. Lane, 228 Kan. 379, Syl. ¶ 1, 614 P.2d 987 (1980).
We start with the question of vested rights. Under the decisions of this court in Board of Johnson County Comm’rs v. Ameq, Inc., 227 Kan. 93, and In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980), there could be no appeal from an order of the Board holding in favor of the tax protestant.
The order of the district court dismissing the case was appealed to this court and our decision has not become final, because a motion for rehearing was pending when H.B. 3228 became effective. It is argued that under our decisional law as it existed at the time the order of the Board was entered, no appeal from that order was possible; the order was final.
We cannot agree. There can be no vested right in an existing law which precludes its change or repeal as applied to pending litigation. Brown v. City of Topeka, 146 Kan. 974, 981, 74 P.2d 142 (1937); Baumann v. Smrha, 145 F. Supp. 617, 625 (D. Kan. 1956).
In Ash v. Gibson, 145 Kan. 825, 67 P.2d 1101, modified 146 Kan. 756, 74 P.2d 136 (1937), on almost identical facts, this court reversed a trial court on an ordinance issue. On appeal during the time a motion for rehearing was being considered, a statute became effective changing the city’s authority to enact the ordinance in question. This court considered the motion for rehearing in light of the new statute and made a final disposition of the case in accordance with the law in effect when final disposition was made. Ash was cited with approval by this court in State ex rel. Schneider v. City of Topeka, 227 Kan. 115, 120, 605 P.2d 556 (1980), in which a new law on tax increment financing was considered as it affected urban renewal programs. See also Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974), in which a recent Kansas no-fault insurance law was applied to issues on appeal in a pending case.
Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. On the other hand, a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right. Brown v. City of Topeka, 146 Kan. at 981. See also Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942). A vested right is a right so fixed that it is not dependent on any future act, contingency or decision to make it more secure, and a defendant in an action does not acquire a vested right in a judgment dismissing an appeal, but only an inchoate right which will become vested upon the happening of an affirmance by the appellate court or by the expiration of the period allowed for appeal.
Under Rule No. 7.06(a), Rules of the Supreme Court:
“A motion for rehearing or modification in a case decided by the Supreme Court may be served within twenty (20) days of the date of the decision. The issuance of the mandate shall be stayed pending the determination of the issues raised by such a motion. If a rehearing is granted, such order suspends the effect of the original decision until the matter is decided on rehearing.” 225 Kan. xlviii. Emphasis supplied.
K.S.A. 60-2106(c) provides that this court may by rule provide for post-decision motions (motions for rehearing) and by rule determine when a decision of an appellate court shall become final. Under Supreme Court Rule No. 7.06(a) above, when a rehearing is granted such order suspends the effect of the original decision until the matter is decided on rehearing.
In granting the rehearing in this case this court merely exercised its power of control over pending litigation, and this was before any final determination had been made. No judgment determining the rights of these litigants has as yet passed beyond the control of this court. The cause is still pending and will continue to pend until the mandate goes down. The court, up to that time, has deprived the litigants of no vested right. When a judgment has been pronounced and has become final then and only then have the rights of the defendants been duly disturbed. There is no vested right in a judgment held by the party in whose favor it is rendered so as to preclude its re-examination and vacation in the ordinary modes of appeal provided by law. It is true in this case that this court had previously held there was no right of appeal in these cases, but the court always has the right and the duty to re-examine its prior decisions. If on re-examination a majority of the members of the court hold differently, then the former case law no longer controls.
In Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963), the point is made that there are no vested rights in any particular remedy. Procedure is the mode or proceeding by which a legal right is enforced. It is that which regulates the formal steps in an action or other proceeding. It is the order in which an action or prosecution is conducted. In Jones it is said:
“It is the law of this state that a statute which merely changes a remedy is not invalid, as there are no vested rights in any particular remedy. While generally statutes will not be construed to give them retroactive application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a saving clause as to existing litigation. [Citations omitted.]” 192 Kan. at 115,
See also Nitchals v. Williams, 225 Kan. 285, 291, 590 P.2d 582 (1979); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968).
There is no vested rights problem in this case. The appeal from the Board’s order was pending in this court on a motion for rehearing. Kansas cases in the past have concerned changes in the law and we have applied new procedure to matters pending on appeal. The rules of this court provide that a decision is not final until the matter is decided on rehearing.
Next we turn to the due process question. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. State ex rel. Stephan v. Lane, 228 Kan. 379, Syl. ¶¶ 1, 8, 614 P.2d 987 (1980).
“The right to appeal, in the strict sense, depends entirely upon statute or express constitutional provision, and this is true of judicial review in the broader sense where the question is one of compliance with the statutory method of review. The legislature acting within its constitutional powers may prescribe the procedures and conditions under which, and the court in which, judicial review of the action of the administrative agency may be had. The right of review is governed by the particular provisions of the act involved and is limited to its terms. The procedure prescribed by the statute must be followed in seeking the review especially those particulars which are jurisdictional or mandatory; in some instances it is declared that the statute must be strictly followed.” 2 Am. Jur. 2d, Administrative Law § 716, p. 618. Emphasis supplied.
“[I]t can hardly be doubted that the legislature, acting within its constitutional powers, may prescribe the procedures and conditions under which, and the court in which, judicial review of administrative orders may be had.” 2 Am. Jur. 2d, Administrative Law § 732, p. 633.
The legislature has full authority to establish procedural prerequisites to the exercise of jurisdiction by the district courts over administrative appeals. Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 95, 510 P.2d 132 (1973); Thompson v. Amis, 208 Kan. 658, 661, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972).
This is pointed out by the Constitution of the State of Kansas, Art. 3, § 6 (b), which states:
“The district courts shall have such jurisdiction in their respective districts as may be provided by law.” Emphasis supplied.
As to the Supreme Court, Art. 3, § 3 states:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law. It shall hold one term each year at the seat of government and such other terms at such places as may be provided by law, and its jurisdiction shall be co-extensive with the state.” Emphasis supplied.
H.B. 3228 provides for reinstatement of dismissed appeals on request of any party to such appeal followed by the exercise of jurisdiction over the appeal as if such appeal had not been dismissed. The application of the reinstatement provisions of the act is to those appeals dismissed after January 1, 1980, but before April 16, 1980. This is not an unreasonable period of time and should impose no great burden of appeals on the courts of this State. Due process rights appear to be adequately protected.
The defendants, Nadel and Gussman, rely largely on Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P.2d 998 (1976). In Eakes a claimant was awarded and was paid an award under the Workmen’s Compensation Act. Under the act as it existed at the time of payment no review by the director was provided after final payment had been made. Ten days after the payment was made, a new statute became effective which extended the right of review to any award. The final payment language did not appear in the new statute. Almost a year later the claimant filed a motion for review. It was held by this court that the award had become final and there was no jurisdiction to review the award.
As previously pointed out the question of retroactive application of a procedural statute extending rights of review largely depends on the intent of the legislature. In Eakes there was nothing in previous workmen’s compensation statutes or in the act itself which indicated an intent for retroactive application. The case can be distinguished on the basis of the lack of legislative intent. Syl. ¶ 1 of Eakes states the basis for the court’s decision as follows:
“A statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter, and retrospective application will not be given where vested rights will be impaired.” 220 Kan. 565.
In the present case no rights had yet vested under the Board’s decision, as has been pointed out, and a clear intent to have the review provisions applied retroactively is expressed by the legislature in H.B. 3228.
Nadel and Gussman make a “uniform and equal rate of assessment and taxation” argument, pointing to other individuals who apparently obtained the relief they sought by a suit brought in Elk County. They argue, since that court has given identical relief to that in the order of the Board of Tax Appeals, the order of the Board should not be disturbed. They assert if the order of the Board is disturbed, this will result in a denial of equal protection of the law under the Fifth and the Fourteenth Amendments to the Constitution of the United States.
The example used in the illustration is not persuasive. It is the assessments and rates of taxation that are required to be equal and uniform within each district. This court has repeatedly held that Art. 11, § 1 of the Constitution of the State of Kansas requires the legislature to provide for uniformity in the basis of assessment as well as in the rate of taxation. Uniformity in taxing implies equality in the burden of taxation. State ex rel. Stephan v. Martin, 227 Kan. 456, 461, 608 P.2d 880 (1980). One of the methods provided by the legislature for testing and assuring uniform and equal taxation is provided by the statutory procedures for protest of tax payments. See K.S.A. 79-2005 and K.S.A. 74-2426 as amended. The fact that one taxpayer utilizes these procedures and is successful in having taxes reduced can only be considered as having equalized the tax burden by making taxes uniform.
At the present time H.B. 3228 merely permits review of the Board’s order, which order directed a reduction in the appraised valuations of defendants’ property. No prior review on the merits has been had. If review on the merits results in a reversal of the Board’s order that merely indicates the defendants’ assessments and rates were uniform and equal as originally set by the county officials. If the order is approved on review it will mean the 20% reduction in appraised valuations ordered by the Board is neces sary to place defendant’s taxes on an equal and uniform basis with their neighbors. The argument lacks merit.
The defendants next contend the statute in question, H.B. 3228, is constitutionally defective and in direct violation of § 2 of the Kansas Bill of Rights which provides:
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.” Emphasis supplied.
Defendants argue the effect of H.B. 3228 is to relieve the county, against whom an adverse order was rendered, from the burden of the order of the Board. We do not agree. H.B. 3228 merely sets up a procedure for examination and determination of the validity of the order of the Board on its merits. H.B. 3228 did not confer a special privilege as that term is used in the Bill of Rights, as argued by defendants. In Johnson v. Reno County Comm’rs, 147 Kan. 211, 225, 75 P.2d 849 (1938), it is said:
“The constitutional provision relied upon [Kansas Bill of Rights § 2] has been definitely construed as referring solely to political privileges and not to those relating to property rights. [Citations omitted.]”
See also State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 439, 296 P.2d 656 (1956).
H.B. 3228 confers no political privileges. It is merely a procedural statute authorizing an appeal from an order of the Board.
The final point — Does this act of the Kansas legislature (H.B. 3228), in providing for an appeal in this case, amount to a violation of the doctrine of separation of powers?
Defendants-appellees argue that jurisdiction of a court to hear appeals is strictly a judicial question and, when that question has once been decided, legislative interference in that judicial area violates the doctrine of separation of powers. We disagree with that conclusion in this case.
The doctrine of separation of powers is extensively discussed in Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973), where this court concludes:
“Generally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws, and the judicial power is the power to interpret and apply the laws in actual controversies.” 212 Kan. at 440.
See State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
As previously pointed out, the Kansas Constitution gives to the district and appellate courts jurisdiction to hear appeals, such as may be provided by law. The legislature, under the constitutional provisions previously cited, has been given the power to grant, limit and withdraw the appellate jurisdiction to be exercised by the courts. State v. Sims, 184 Kan. 587, 588, 337 P.2d 704 (1959). See also 16 Am. Jur. 2d, Constitutional Law § 331, p. 868.
Procedure has been defined as the mechanics by which a legal right is enforced, as distinguished from the law which gives or defines the legal right, and which, by means of the proceeding, the court is to administer the legal right. Jones v. Garrett, 192 Kan. at 114. There is no violation of the doctrine of separation of powers when the legislature merely changes procedural methods.
Wyandotte County Comm’rs v. General Securities Corp., 157 Kan. 64, 138 P.2d 479 (1943), provides a typical example of a violation of the separation of powers doctrine. There the power which the legislature attempted to exercise was a judicial power — the interpretation of an existing statute. Under the facts of that case the legislature attempted by legislative act to direct the judiciary in the interpretation of an existing statute. The court stated:
“ ‘The determination of the true state and meaning of the existing law is not a legislative function, but is a judicial function . . . and the legislature cannot declare what the law was in the past.’ ” 157 Kan. at 76.
In the present case the legislature did not attempt to tell the courts what the law was; it did not attempt to force any different decision as to the ultimate rights of the parties with reference to the tax refund. The legislature merely opened the door to the courtroom and then stood back to await whatever decision on the merits might be forthcoming.
In United States v. Sioux Nation of Indians, 448 U.S. 371, 65 L.Ed.2d 844, 100 S.Ct. 2716 (1980), the United States Supreme Court goes far in upholding a federal statute which had the effect of requiring a court to hear a case involving Indian rights, after the case had been dismissed on the grounds of res judicata. The court found that Congress in no way attempted to dictate the outcome of the Court of Claims’ review of the case on the merits. The Court of Claims was completely free to reaffirm its 1942 judgment previously reached some years before.
The words of the high court in that case appear to be of particular interest in our present case. In Sioux Nation of Indians, the court said:
“There are two objects that might be raised to the constitutionality of this amendment, each framed in terms of the doctrine of separation of powers. The first would be that Congress impermissibly has disturbed the finality of a judicial decree by rendering the Court of Claims’ earlier judgments in this case mere advisory opinions. . . .
“The second objection would be that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left the Court no adjudicatory function to perform.” 65 L.Ed.2d at 861.
“When Congress enacted the amendment directing the Court of Claims to review the merits of the Black Hills claim, it neither brought into question the finality of that court’s earlier judgments, nor interfered with that Court’s judicial function in deciding the merits of the claim. When the Sioux returned to the Court of Claims following passage of the amendment, they were there in pursuit of judicial enforcement of a new legal right. Congress had not ‘reversed’ the Court of Claims’ holding that the claim was barred by res judicata, nor, for that matter, had it reviewed the 1942 decision rejecting the Sioux’ claim on the merits. As Congress explicitly recognized, it only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims’ decisions, and did not interfere with the finality of its judgments.” 65 L.Ed.2d at 870.
In view of what has been said we find no constitutional impediment to L. 1980, ch. 236, § 1 (f) as adopted by the legislature of the State of Kansas so far as the separation of powers doctrine is concerned. It is procedural in nature. The present case was pending on a motion for rehearing when the law became effective. However, even though the case had not been pending, the intention of the legislature is clearly expressed so as to apply the act retroactively. This is proper in those cases where procedural changes are adopted and no vested rights are affected. No attempt has been made by the legislature to require any particular judicial decision on the past controversy. This court holds that L. 1980, ch. 236, § 1 (f) as passed by the Kansas legislature is valid and is not constitutionally impermissible for any of the reasons urged on this court.
The judgment of the district court dismissing the appeal taken from the order of the Kansas Board of Tax Appeals is reversed and the case is remanded to the District Court of Shawnee County for further proceedings. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the State on a question reserved pursuant to K.S.A. 1979 Supp. 22-3602(h)(3). The defendant, Jack Leroy Fish, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of K.S.A. 1979 Supp. 8-1567 which provides in part as follows:
“8-1567. Driving while under influence of intoxicating liquor or drugs; penalties; revocation or restriction of driver’s license; order placing conditions on license.
“(a) It is unlawful and punishable as provided in subsection (c) of this section for any person who is under the influence of intoxicating liquor to operate any vehicle within this state.
“(b) It is unlawful and punishable as provided in subsection (c) of this section for any person who is an habitual user of or under the influence of any narcotic, hypnotic, somnifacient or stimulating drug or who is under the influence of any other drug to a degree which renders such person incapable of safely driving a vehicle to drive a vehicle within this state. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection.” (Emphasis supplied.)
The question reserved and presented for determination requires a construction of the term “to operate” as used in section (a) of 8-1567. Simply stated the question propounded by the State is this: Is it a violation of K.S.A. 1979 Supp. 8-1567(a) for an intoxicated person to be in a motor vehicle with the motor running where there is no evidence, direct or circumstantial, that he drove the motor vehicle in that condition?
For the purpose of determining the question reserved, the facts are to be considered as undisputed. On the morning of March 10, 1979, defendant Fish was found in his motor vehicle parked off the highway at a community trash receptacle in Butler County by a citizen named Edgar Thiessen. Thiessen noticed that the windows were rolled up and that the defendant, the only occupant of the car, appeared to be asleep on the front seat. The motor was running with the gear shift of the car in “park.” There was an open liquor bottle in the front seat. Thiessen tried, but was unable to arouse the defendant. Thiessen then turned off the ignition, left the car door ajar, and notified the highway patrol. Highway patrol trooper Hannah responded to the call. He awoke the defendant and requested his driver’s license. Hannah noticed the difficulty defendant had in producing his driver’s license and immediately suspected him of intoxication. Defendant was then arrested and later charged with operating a motor vehicle while under the influence of intoxicating liquor under K.S.A. 1979 Supp. 8-1567(a). We will assume that the evidence was sufficient to establish the defendant’s state of intoxication. The State concedes that there is no evidence in the record to show that, at the time the defendant was observed by Thiessen and Hannah, he was driving (or moving) the car. Furthermore, there is no evidence that after he drank liquor at the trash receptacle, the defendant drove the vehicle. Assuming that the words “operating” and “driving” are synonymous and that some movement of the vehicle while under the defendant’s control is needed to prove driving, the State concedes that the evidence in the case would not be sufficient to prove a violation of K.S.A. 1979 Supp. 8-1567(a).
On this appeal, the State requests this court to hold that there is a distinction between the terms “to operate” and “to drive” as used in K.S.A. 1979 Supp. 8-1567(a) and (b). The State maintains that the word “operate” is a broader term than is the term “drive” and includes acts of a person in a motor vehicle not involving the actual driving of the vehicle. Thus, the State argues, an intoxicated person, who starts the motor of an automobile and, thereafter, remains seated in the vehicle, has violated the provisions of K.S.A. 1979 Supp. 8-1567(a). The State points out there is no Kansas law defining the term “to operate” in the context of this statute. There are Kansas cases which discuss the term “driving” as used in the former statute, G.S. 1949, 8-530. The Kansas cases on the subject have assumed that proof of driving or movement of the vehicle is required in order to sustain a conviction. In State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (1954), the issue before the court was the sufficiency of the evidence to support the jury’s conclusion that the defendant had driven the automobile while under the influence of intoxicating liquor. In Hazen, the defendant was found in a slumped position in the driver’s seat and appeared to be in a daze. The automobile was parked in the center of the right-hand lane of traffic with the motor and lights turned off. While there was no direct evidence that the intoxicated defendant had driven the vehicle, the court reasoned that it could be inferred the defendant drove the car to the spot where it was found, since the vehicle was standing in the middle of the highway. For a similar case, see State v. Dill, 182 Kan. 174, 319 P.2d 172 (1957).
In other jurisdictions, statutes prohibiting “driving” under the influence of intoxicating liquor have generally been held applicable only in cases in which it is shown that the accused placed the vehicle in motion. Statutes which prohibit “operating” a motor vehicle under the influence of intoxicating liquor have generally been more liberally interpreted to include not only the act of driving but also such acts as starting the engine or activating the electrical or mechanical devices of the vehicle. There is an excellent annotation on the subject in 93 A.L.R.3d 7, where cases on the subject are discussed in depth and the various positions of the courts are analyzed. Some jurisdictions give a broad interpretation to the term “operating” so as to cover all matters and things connected with the purpose and use of motor vehicles on the highways, whether they be in motion or at rest. At the other extreme are jurisdictions which hold that “operating” is synonymous with “driving” and require some actual movement of the vehicle.
Prior to 1971, Kansas statutes prohibited both habitual users of narcotic drugs and persons under the influence of intoxicating liquor to drive any motor vehicle within the state. See K.S.A. 8-530 (Corrick). In 1974 the legislature adopted the Uniform Act Regulating Traffic on Highways (K.S.A. 8-1401 et seq.). K.S.A. 8-530 (Corrick) was repealed in favor of K.S.A. 1979 Supp. 8-1567, which made it unlawful to operate any vehicle while under the influence of intoxicating liquor and also made it unlawful for any person under the influence of drugs to drive a vehicle. It is the position of the State that the change in wording from “drive” to “operate” indicates a legislative intent to broaden the coverage of the act to make it a crime for an intoxicated person to turn on the car’s engine, thus eliminating any requirement that the vehicle must actually be moved or driven by the intoxicated person.
At first blush, the argument of the State appears to be sound. Our problem, of course, is to determine the legislative intent. In determining legislative intent, we deem it desirable to consider together the various provisions of the Uniform Act Regulating Traffic on Highways (K.S.A. 8-1401 through 8-2204). From our analysis of these provisions and an examination of Chapter 50 of the Laws of 1976 which last amended 8-1567, we have concluded that the legislature intended the words “operate” and “drive” to be considered as synonymous terms as used in K.S.A. 1979 Supp. 8-1567. In arriving at this conclusion we have taken into consideration the following sections of the Uniform Act Regulating Traffic on Highways: K.S.A. 1979 Supp. 8-1005 provides in part as follows:
“8-1005. Prosecution for driving while under influence of intoxicating liquor; evidence of alcohol in blood; presumptions, (a) In any criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, or the commission of vehicular homicide or manslaughter while under the influence of intoxicating liquor, or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following presumptions:
“(1) If there was at that time less than 0.10 percent by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
“(2) If there was at the time 0.10 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.” (Emphasis supplied.)
K.S.A. 1979 Supp. 8-1001 provides in part:
“8-1001. Consent to submit to chemical test deemed given, when; authority to withdraw blood; administration of test; procedure upon refusal to submit to test; notice; hearing; suspension of license, permit or operating privileges, (a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer.
“(c) If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the arresting officer shall make to the division of vehicles of the state department of revenue a sworn report of the refusal, stating that prior to the arrest the officer had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor.” (Emphasis supplied.)
K.S.A. 1979 Supp. 8-285 provides in part as follows:
“8-285. Definitions. As used in this act, the words and phrases defined in K.S.A. 8-234 shall have the meanings ascribed to them therein, and the term ‘habitual violator’ shall mean any resident or nonresident person who, within the immediately preceding five (5) years, has been convicted in this or any other state:
“(a) Three (3) or more times of:
“(2) Driving while under the influence of intoxicating liquor or drugs, as prohibited by K.S.A. 1977Supp. 8-1567, or as prohibited by an ordinance of any city in this state or by any law of another state, which ordinance or law declares to be unlawful the acts prohibited by said statute . . . .” (Emphasis supplied.)
K.S.A. 8-1212 provides in part as follows:
“8-1212. Driver license compact.
“Article IV. — Effect of Conviction
“(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of convictions for:
“(1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle;
“(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle . . . .” (Em-
phasis supplied.)
The language used in the above statutes should be carefully noted. K.S.A. 1979 Supp. 8-1005, which deals with the subject of blood alcohol tests, refers to “criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of an intoxicating liquor.” This section was last amended in 1976. K.S.A. 1979 Supp. 8-1001 has to do with the consent of the operator of the vehicle to submit to a chemical test of breath or blood, to determine the alcoholic content of his blood. In 8-1001 the word “operating” is used but it should be noted that consent to taking a blood sample is presumed provided the arresting officer has reason to believe that the person was driving under the influence of intoxicating liquor. It seems obvious that, as used in that statute, the words “operating” and “driving” are synonymous terms. Turning to K.S.A. 1979 Supp. 8-285, the term “habitual violator” is defined as any person who, within the immediately preceding five years, has been convicted in this or any other state three or more times of, among other things, driving while under the influence of an intoxicating liquor or drugs as prohibited by K.S.A. 1979 Supp. 8-1567. There is clearly an explicit recognition that the offense prohibited by 8-1567 is driving while under the influence of intoxicating liquor or drugs.
K.S.A. 8-1212, quoted above, is the driver’s license compact entered into by this state along with other jurisdictions. It declares, in effect, that convictions for “[djriving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug” in other states is given the same effect as if such conduct had occurred in this state. Again it should be noted that the reference in the compact is to driving a motor vehicle while under the influence of intoxicating liquor not operating a vehicle. In addition, there are other sections of the Uniform Act Regulating Traffic on Highways where the terms operating and driving are obviously used interchangeably. For example see K.S.A. 8-1561(a) and K.S.A. 8-1562. See also K.S.A. 8-1906 which has to do with the subject of securing loads on vehicles. Section (a) declares that no vehicle shall be driven or moved unless such vehicle is so constructed or loaded as to prevent any of its load from dropping. Section (b) provides that no person shall operate any vehicle unless the load or any covering thereon is securely fastened. It seems obvious that the words “driven or moved” and “operated” are used interchangeably.
We also think it important to consider Chapter 50, Laws of 1976, which is the latest enactment of the legislature which amends K.S.A. 8-1567. Section (1) of Chapter 50 makes it unlawful and punishable for any person who is under the influence of intoxicating liquor to operate any vehicle within this state. The title of Senate Bill No. 857 (which became Chapter 50) declares that it is “An act concerning the uniform act regulating traffic on highways relating to the offense of driving while intoxicated; amending K.S.A. 8-1567, and repealing the existing section.” Thus, in the title of the bill which enacted K.S.A. 1979 Supp. 8-1567, the offense proscribed is described as “driving while intoxicated.” It is difficult to see how the legislative intent could be more clearly expressed.
From this analysis of K.S.A. 1979 Supp. 8-1567 and other sections of the Uniform Act Regulating Traffic on Highways, we have concluded that the word “operate” as used in section (a) of that statute should be construed to mean “drive,” thus requiring some evidence, either direct or circumstantial, that the defendant drove the automobile while intoxicated in order for the defendant to be convicted under that section. Proof of driving does not require an eyewitness to the driving. It may be shown by circumstantial evidence as was done in State v. Dill, 182 Kan. 174, and State v. Hazen, 176 Kan. 594.
For the reasons set forth above, it is the judgment of the court that the appeal of the State on the question reserved is not sustained. | [
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The opinion of the court was delivered by
Six, J.:
This summary judgment appeal arises from a medical malpractice case. The plaintiff, Katherine Oberzan, alleged her injuries occurred while being prepared for a barium enema. Paula Davis, an x-ray technician employed by Maude Norton Memorial Hospital (the hospital) in Columbus, Kansas, prepared Oberzan for the enema. Davis inserted the enema tip that perforated Oberzan’s rectum. The defendant, William Smith, M.D., was not present when the enema tip was inserted. The trial court granted Smith’s motion for summary judgment. Our jurisdiction is under K.S.A. 20-3017 and Rule 8.02 (1993 Kan. Ct. R. Annot. 43). We granted Oberzan’s motion for transfer from the Court of Appeals.
Oberzan advances three issues for review. Did the trial court err in concluding that: (1) the x-ray technician was an agent of the hospital and not an agent of Smith; (2) based on K.S.A. 40-3403(h), Smith could not be held vicariously liable for the negligent acts of the x-ray technician (40-3403[h] is a statute abrogating vicarious liability between two health care providers [K.S.A. 40-3401(f)] who are both qualified for coverage under the Health Care Stabilization Fund); and (3) K.A.R. 28-34-86(a) does not provide an independent basis for imposing liability (the administrative regulation concerns supervision of patient services in a recuperation center radiology department)?
We find no error and affirm. We address issues one and three. The health care provider liability abrogation issue need not be reached because Oberzan’s contention under issue two relies on Davis being a joint agent of the hospital and of Smith. Oberzan’s reliance is misplaced.
Facts
Oberzan admitted the following facts in response to Smith’s summary judgment motion. The trial court found the facts were uncontroverted:
“2. The pretrial questionnaire prepared by the plaintiff alleges that Dr. Smith or his x-ray technician perforated plaintiffs rectum during the barium enema procedure.
“3. The plaintiff was referred to Dr. Smith by Dr. Jones for the barium enema procedure.
“4. The usual procedure for performing barium enemas is that the x-ray technician inserts the enema tip for the barium enema and then gets Dr. Smith to begin the examination. All patients are in the prone position with the tip in place when Dr. Smith walks into the room.
“5. With respect to the plaintiff, when Dr. Smith walked into the room, the plaintiff was already lying in the prone position with the tip already inserted by the technician.
“6. In February, 1988, Paula Davis was employed by Maude Norton Hospital as an x-ray technician.
“7. As an x-ray technician, Paula Davis was trained to prep patients for exams, which would include inserting enema tubes for barium enemas.
“8. Paula Davis inserted the enema tip into the rectum of the plaintiff for the barium enema before Dr. Smith entered the room for the procedure.
“9. After Dr. Smith entered the room, the exam began. Right after Paula Davis began injecting the barium, she. noticed bleeding at the tip of the rectum.
“10. After the procedure was halted, Dr. Smith immediately contacted Dr. Jones to inform him of the bleeding.”
Oberzan states in her brief, “The x-ray technician perforated the Plaintiffs rectum inserting the nozzle for the barium enema.”
The Trial Court’s Ruling
In granting Smith’s motion for summary judgment, the trial court reasoned, in part, as follows:
“The uncontroverted facts show that at the time Paula Davis performed the alleged negligent act, she was an employee of Maude Norton Hospital, acting within the scope of her employment with the hospital. Paula Davis was not, at the time in question, an employee or agent of Dr. Smith.' Therefore, under common law principles of the doctrine of vicarious liability, Dr. Smith cannot be held liable for the alleged negligence of Paula Davis..
“This Court specifically rejects plaintiffs argument that K.A.R. 28-34-86(a) gives rise to a legal duty on the part of Dr. Smith to supervise the services rendered by Paula Davis in the radiology department of the hospital. At a result, K.A.R. 28-34-86(a) does not provide an independent basis for imposing liability on Dr. Smith for the alleged negligent acts of Paula Davis."
Standard of Review — Summary Judgment
Our review of the record and of the parties’ contentions convinces us that summary judgment was a proper procedural vehicle for resolving the case at bar. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed). Oberzan does not complain of summary judgment as an improper procedural vehicle. She objects to the trial court’s analysis in applying the admitted facts to the law.
The X-Ray Technician — Agency
Oberzan suggests that the application of the doctrine of res-pondeat superior is not limited to an employer’s liability for actions of employees. She maintains that an employee of a hospital can be the servant of a physician under whose control the employee is working. She believes the physician is vicariously liable for the employee’s negligent conduct. We agree with her broad statement of agency law. However, the facts in the case at bar do not support her claim.
Oberzan applies the “captain of the ship” label to impose vicarious liability on Smith, the physician, for the acts of Davis, the x-ray technician. Oberzan relies upon Voss v. Bridwell, 188 Kan. 643, Syl. ¶¶ 3, 5, 364 P.2d 955 (1961) (the surgeon, the anesthetist, and a resident physician were defendants; the alleged injuries resulted from administration of anesthesia); McCullough v. Bethany Med. Center, 235 Kan. 732, 736-38, 683 P.2d 1258 (1984) (the doctor, the nurse anesthetist, and the hospital were defendants; the alleged injuries resulted from administration of anesthesia); and Leiker v. Gafford, 245 Kan. 325, Syl. ¶ 13, 778 P.2d 823 (1989) (defendants were a certified registered nurse anesthetist who administered the spinal anesthesia, his professional corporation, the obstetrician, his professional corporation, and Abbott Laboratories; the alleged injuries and death resulted from the administration of anesthesia.) Oberzan asserts that a radiologist should be responsible for the medical personnel under his or her control during an invasive radiological procedure. She reasons that the radiologist is similar to a surgeon who is responsible for the conduct of those who assist in a surgical procedure. According to Oberzan, the evidence before the tidal court was sufficient to support a finding that Davis was the agent of both Smith and the hospital when she inserted the barium enema tip. No discussion of the alleged evidence supporting an agency relationship with Smith is provided. Oberzan, without specifically referencing the “borrowed servant” doctrine, is asserting that Davis was borrowed from the hospital by Smith.
Smith counters that the uncontroverted facts established that Davis, an employee of the hospital, was acting within the scope of her employment at the time the enema nozzle was inserted. Consequently, he maintains that the facts support the trial court’s conclusion that Davis was an agent or servant of the hospital. We agree.
Voss, McCullough, and Leiker all involved an anesthesiologist or nurse anesthetist and not a hospital employee who provides routine patient services. We observed in McCidlough that a surgeon generally is not liable for the negligence of an anesthesi ologist; however, a surgeon usually is liable for the negligence of an anesthetist-resident or nurse-anesthetist under the “captain of the ship” doctrine. 235 Kan. at 738. The “captain of the ship” doctrine has been applied in the. operating room setting. A supervising surgeon is deemed to have control over hospital employees assisting in a surgical procedure. The “captain of the ship” doctrine is not applicable to the case at bar.
The' determination of the right of control as a factor used to identify an agency relationship ordinarily is a matter for the trier of fact. McCullough, 235 Kan. at 738. Under the rules for summary judgment, however, the party opposing the motion must come forward with something of evidentiary value to support a finding that a question of fact remains. Glenn v. Fleming, 247 Kan. 296, Syl. ¶ 1, 799 P.2d 79 (1990). Oberzan has failed to do so in the case at bar.
Davis was not an employee of Smith. She was not under Smith’s direct supervision and control at the time Oberzan’s injury occurred. Smith did not select Davis to perform the insertion of the enema tip; she was assigned by the hospital. Vicarious liability under respondeat superior does not impose liability on Smith. The master-servant relationship was not established because Smith was not exercising personal control or supervision over Davis, a non-employee, at the time of injury. Oberzan admitted that “[t]he usual procedure for performing barium enemas is that the x-ray technician inserts the enema tip for the barium enema and then gets Dr. Smith to begin the examination.” Any negligence of Davis cannot be imputed to Smith.
Independent Negligence — A Failure to Supervise
Oberzan asserts that Smith may be liable for his own independent negligence in failing to properly supervise the barium enema procedure. She quotes Leiker, 245 Kan. 325, Syl. ¶ 13. We reasoned in Leiker that, in an appropriate case, a surgeon also may be liable based on K.A.R. 28-34-17(p).
The Kansas Department of Health and Environment has promulgated a variety of regulations that apply to hospitals, ambulatory surgical centers, and recuperation centers. See K.A.R. 28-34-1 et seq. Oberzan observes that one of these regulations, K.A.R. 28-34-17(p) (the regulation referenced in Leiker), imposes a duty on a surgeon to supervise the administration of anesthesia when it is not given by another physician. The regulation states: “All anesthetics shall be given by a physician, or shall be given under the supervision of a physician.”
Oberzan argues that a similar regulation, K.A.R. 28-34-86(a) (“The radiology department and all patient services rendered therein shall be under the supervision of a designated medical staff physician; wherever possible, this physician shall be attending or consulting radiologist.”) imposes a duty on radiologists to supervise patient services rendered in a hospital radiology department. She suggests that the “captain of the ship” doctrine also places a duty on the physician to supervise assistants during surgery or other invasive procedures. According to Oberzan, the breach of the duty to supervise under K.A.R. 28-34-86(a) was direct negligence by the physician, not vicarious liability for the negligence of the non-physician assistant.
The trial court, based on the uncontroverted facts, correctly rejected Oberzan’s contention concerning Smith’s alleged failure to supervise. The trial court held that K.A.R. 28-34-86(a) did not provide an independent basis for imposing liability for Davis’ alleged negligent acts. We note that K.A.R. 28-34-86(a) pertains to recuperation centers and, consequently, is not applicable. K.A.R. 28-34-12(c) applies to hospitals. The language of both regulations is identical.
K.A.R. 28-34-17(p) is specific in providing that all surgical anesthetics shall be given by or under the supervision of a physician. K.A.R. 28-34-12(c) addresses the administration of the radiology department, in general. K.A.R. 28-34-17(c) applies to the administration of the surgery department, in general, stating that “[t]he surgical division of the medical staff shall provide adequate supervision and control over surgery conducted in the hospital.” Unlike K.A.R. 28-34-17(p), K.A.R. 28-34-12(c) does not require the radiology staff physician to be physically present, supervising each activity that takes place in the department.
K.A.R. 28-34-17(c) is equivalent to K.A.R. 28-34-12(c). K.A.R. 28-34-12 (j) (“Therapeutic radiation shall be administered to patients only at the direction and under the supervision of a radiologist.”); (k) (“Diagnostic and therapeutic use of radioactive isotopes and radium therapy shall conform to applicable state and federal regulations, and shall be under the supervision of a radiologist or other qualified physician.”); (1) (“The interpretation of all radiological examinations shall be made by physicians.”); and (p) (“Fluoroscopy shall be conducted by or under the direct supervision of a physician.”), are equivalent to K.A.R. 28-34-17(p) in that they provide that certain specific procedures in the radiology department shall be performed by, at the direction of, or under the supervision of a physician or radiologist. None of the K.A.R. 28-34-12 subsections require that the preparation of a patient for a barium enema be performed under a physician’s direct supervision. The purpose of K.A.R. 28-34-12(c) is to establish an administrative head for the radiology department.
Oberzan cites no authority in support of her position that K.A.R. 28-34-12(c) creates a legal duty for a designated medical staff physician to personally control and supervise all activities which occur in a radiology department. The construction suggested by Oberzan would create physician liability extending far beyond the intent of the regulation.
Affirmed. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against John C. Herman, an attorney admitted to the practice of law in Kansas. Four separate complaints were filed, cases No. B4956, No. B5116, No. B5118, and No. B5119, which were consolidated for hearing before the Kansas Board for Discipline of Attorneys (Board) and this court. The essential facts, as determined by the panel, and the panel’s recommended discipline are not in dispute. Herman has admitted the allegations in all complaints. He states that his answer should be considered to be an admission under Supreme Court Rule 212(d) (1993 Kan. Ct. R. Annot. 180).
Case No. B4956 — The Floyd Myer Estate
Herman was retained to represent the executor of the estate of Floyd Myer, who died December 4, 1985. The respondent was given Myer’s will within a few day of his death. Myer’s will was admitted to probate on June 27, 1986. On September 28, 1987, a hearing was held to determine the claims against the estate. Herman failed to promptly journalize the hearing.
On March 22, 1988, a petition for final settlement was filed by Herman. In that document, he represented that the Kansas inheritance tax form had been submitted and that no tax was due on the estate. A hearing was set for final settlement of the estate, but it was continued as a result of Herman representing to the court that he had not received the necessary tax documents from the State. The Kansas inheritance tax form was not filed by Herman until November 1, 1988. On the same day, Herman filed a journal entry of final settlement which stated that the inheritance tax had not yet been determined. The executor of the Myer estate died on March 26, 1989. The failure of Herman to act in a timely fashion made it necessary to have an administratrix de bonis non appointed. Another heir, Myers wife, also died during the time this estate was open. As of the date the formal complaint was filed, no closing letter had been received by the court.
Case No. B5116 — The Marion Kuhlman Estate
Marion B. Kuhlman died November 30, 1988. He had used Herman as his attorney prior to his death. Kuhlman’s will had been drafted by another attorney. Herman represented the executors of the estate. He was responsible for preparing and filing the estate’s federal estate tax return. The decedent’s will created two trusts, a marital and nonmarital trust. The will directed the executors to make an election allowed by the Internal Revenue Code for the purpose of qualifying the marital trust for the federal estate tax marital deduction. The respondent failed to make the election.
Herman’s services were terminated when it was learned by the executors that the election had not been made. Another attorney was retained. Due to the efforts of new counsel, the- Internal Revenue Service has allowed the estate to make the election. Herman’s actions resulted in additional attorney fees and unnecessary costs to the estate.
Case No. B5118 — The Federal Land Bank
Herman was retained by the Federal Land Bank (FLB) to pursue mortgage foreclosures. In each of four instances, he failed to file a foreclosure action in a timely manner, if at all. The FLB discovered Herman’s inaction and had the foreclosure cases taken over by another attorney. Herman failed to provide information requested by the FLB’s new counsel upon termination of his services.
Additionally, Herman sent billings to the FLB which contained charges for work allegedly done regarding three of the foreclosures. He also sent status reports to the FLB indicating that a case had been filed and that litigation was occurring. Herman misrepresented the status of the litigation and billed the FLB for work which was not performed.
On February 27, 1989, Herman entered into a settlement agreement with the FLB. He agreed to pay the FLB $90,000 to settle any claims which arose due to his failure to institute the FLB foreclosure proceedings.
Case No. B5119 — The Celestine Wellbrock Estate
Celestine Wellbrock died on April 28, 1984. She was survived by her husband, Herman Wellbrock, and six children. Herman and Celestine had executed joint, mutual, and contractual wills on February 25, 1975. Herman Wellbrock died on July 26, 1986.
Respondent was retained to probate the estate of Celestine Wellbrock. The will was probated and a partial distribution of assets occurred in February 1987. On November 25, 1987, a petition for final settlement was filed and set for hearing on December 23, 1987. No hearing took place on that date because the estate’s inventory and inheritance tax return had not been filed.
On June 2, 1988, an heir of the estate, Donald Wellbrock, filed a petition to compel estate inventory, inheritance tax reporting, final settlement, and other relief. A hearing on the petition was held, and the executor was ordered to file an inventory and a copy of the Kansas inheritance tax return by July 28, 1988. An inventory was filed on September 12, 1988, and a certificate of nontaxability was filed on October 24, 1988.
As of the time of the filing of the Disciplinary Administrator’s formal complaint, no further action had been taken by respondent to close out Celestine’s estate and the remaining assets had not been distributed. An estate proceeding was never opened for Herman Wellbrock. Herman told the disciplinary complaint investigator that he had believed he could combine Herman Well-brock’s estate with the one already opened for Celestine. The petition for final settlement filed November 25, 1987, did add Herman Wellbrock’s name to Celestine’s case and requested that the court distribute the couple’s property.
On August 31, 1989, a petition for partial distribution and other relief was filed on behalf of Donald Wellbrock. A hearing was held and the court made a partial distribution of the assets from the estates. The court determined that an inventory of Herman’s assets had not been filed and that no proof had been presented concerning satisfaction of Kansas inheritance taxes. At the hearing, Donald’s counsel provided an inventory of Herman Wellbrock’s assets as well as a nearly completed Kansas inheritance tax form (it lacked some personal data about the decedent). The court awarded Donald’s counsel attorney fees for his work in the case, which were paid out of estate funds. The court found that Donald was responsible for the only activity in the probate file since December 23, 1987, and that the delay was without reasonable excuse.
As of the time of the disciplinary complaint, the respondent had failed to take action to close out either estate and had failed to cooperate with Donald’s counsel, who was attempting to close out the estates.
The Disciplinary Panel’s Final Report
The following pertinent findings and recommendations were made by the panel:
"FINDINGS OF FACT
“. . . In reaching its decision, the panel has considered the following findings of fact in mitigation:
“1. Respondent is an attorney at law. . . . Upon graduation he . . . established his own practice in Hays, Kansas, in April of 1978. He served as an Assistant County Attorney of Ellis County from 1979 until 1981 which was a part-time position. In 1981, he was elected to the position of Ellis County Attorney, which he held until 1983. At that time he returned to private practice. He served as an appointed Workers Compensation Judge from 1984 to 1992. He was in law partnership with Edward Bouker, now district court judge, from 1985-1990.
“3. Respondent described a work pattern which intensified during his law partnership with Ed Bouker in which he increasingly had difficulty structuring his time, staying organized and following through with his work assignments. By 1990, he found it difficult to work effectively because he was unable to maintain the concentration and energy to get his work done. He increased his alcohol consumption as a form of self-medication. After the dissolution of his partnership with Mr. Bouker, his depression, alcohol consumption and inability to function effectively substantially increased.
“4. In March of 1992, Ed Bouker and Robert Diehl, a practicing attorney in Hays, confronted Respondent about their concern over his depression and his level of functioning at the office. Respondent, in turn, consulted with Dr. James Ryabick, a psychiatrist, and hospitalized himself in March at Charter Hospital in Kansas City. He remained hospitalized for treatment for his depression for two weeks under the care of Drs. Budwell and Keim, both psychiatrists, and Dr. Ryabick, the clinical director. He was diagnosed with bipolar mood disorder and depression.
"6. At the time of his hearing, Respondent had been faithful to his therapy program and was continuing to participate in therapy twice a week. He was taking prescription medication consisting of a dosage of Lithium (four capsules of 300 milligrams daily) and Zoloft of 100 milligrams a day. He had not consumed alcohol since his hospitalization at Charter Hospital. He planned to continue with therapy and medication on an indefinite basis.
“8. Dr. Gatschet, Respondent’s psychiatrist, testified Respondent had a genetic predisposition in his family for mood disorders. He found no evidence of psychotic behavior in Respondent’s history. He testified if Respondent’s illness is properly medicated, in his opinion, Respondent can function effectively as a practicing attorney.
“9. The testimony from all of Respondent’s health care practitioners corroborates Respondent’s testimony that he has faithfully attended his counseling sessions and taken his medication. Respondent recognizes he must continue with counseling on an indefinite basis.
“10. The Honorable Ed Boulcer and The Honorable Tom Scott testified by video tape deposition. Both judges attested to Respondent’s good character and legal abilities ....
“11. William Jeter, a practicing attorney with the law firm of Jeter & Moran in Hays, Kansas, has agreed to monitor Respondent’s law practice and has reviewed the status of Respondent’s cases with him. He advised the panel that Respondent’s files are in order and that he is willing to file written status reports on Respondent on a quarterly basis with the Disciplinary Administrator’s office, as well as immediately report any deviation from proper practice should it occur.
"12. Respondent presented correspondence from practicing attorneys in the Hays area who attested to his ability. He also presented letters from James Dibble, Senior Vice President of Federal Land Bank Association of I-Iays, and Randall C. Clinksales which were complimentary of the manner in which Respondent acknowledged his mishandling of Case No. B5118 and promptly reimbursed the Federal Land Bank Association of Kansas in the amount of $90,000 to their satisfaction.
“13. Respondent advised the panel and the correspondence admitted from opposing counsel confirms that Respondent has made full restitution for his violations. . . . He had no malpractice insurance. No other monetary loss was suffered from the delay on any other cases.
“14. Respondent is a member of the Kansas Bar Association, the Kansas Association of Criminal Defense Counsel Lawyers and the Ellis County Bar Association. He is a past President and Secretary/Treasurer of the Ellis County Bar. He is a past member of the Board of Directors of the Hays Humane Shelter. He is a co-founder of and long term member of the Northwest Kansas Family Shelter, a not-for-profit organization to help battered and other individuals in need of counseling. He is a past board member and a volunteer of Helpline, a 24-hour emergency telephone service in Hays and is active in his church, St. Joseph, Hays, Kansas.
“15. Respondent advised the panel he felt shame and remorse for his actions. All of the undisputed evidence submitted to the panel suggests Respondent has cooperated fully with the disciplinary authorities concerning the complaints and the proceedings. Respondent apologized to the panel for his actions and presented medical evidence to explain his actions. Respondent appears to have made peace with his clients as they request no discipline and report complete satisfaction with the manner in which he has acknowledged his mishandling and made restitution.
“16. Respondent recognizes his medical condition is permanent and he will require treatment indefinitely. He demonstrates willingness to continue his treatment and seems to understand he has an illness that will not go away.
“17. The panel is advised Respondent had former discipline imposed against him [in] In the Matter of John C. Herman, Case Nos. W3536 and W3633, resulting in informal admonition. The discipline was administered on July 25, 1986, and the panel found a violation of DR6-101(A)(3) [1993 Kan. Ct. R. Annot 227] [neglect] in that Respondent did not act diligently in handling motions concerning child visitation for his client.
“CONCLUSIONS OF LAW
“Respondent’s actions with respect to the handling of legal matters in Case No. B4956 do amount to a violation of DR 1-102(A)(4), (5), and (6) [1993 Kan. Ct. R. Annot. 202] [misconduct]; DR 6-101(A)(3), DR 7-101(A)(2) and (3) [1993 Kan. Ct. R. Annot. 232] [zealous representation], MRPC 1.3 [1993 Kan. Ct. R. Annot. 263] [diligence]; MRPC 8.4 (c), (d), and (g) [1993 Kan. Ct. R. Annot. 347] [misconduct] and MRPC 1.4 [1993 Kan. Ct. R. Annot. 267] [communication]. Respondent’s actions with respect to the handling of legal matters in Case No. B5118 do amount to a violation of MRPC 1.3, 3.2 [1993 Kan. Ct. R. Annot. 313] [failure to expedite litigation] and Canon 6 [1993 Kan. Ct. R. Annot. 227] [competence] in Count I; MRPC 1.3, 3.2 and 8.4 and Canons 1 [1993 Kan. Ct. R. Annot. 202] [integrity and competence], 6, 7 and 9 [1993 Kan. Ct. R. Annot. 245] [avoid appearance of impropriety] in Count II; MRPC 1.3, 3.2 and 8.4 and Canons I, 6, 7 and 9 in Count III; and MRPC 1.3, 3.2 and 8.4 and Canons 1, 6, 7 and 9 in Count IV. Respondent’s actions with respect to the handling of legal matters in Case Nos. B5116 and B5119 do amount to a violation of MRPC 1.1 [1993 Kan. Ct. R. Annot. 258] [competence] and 1.4 in Count I; and MRPC 1.1, 1.3, 1.4, 3.2 and 8.4 and Canons 1, 6 and 7 in Count II.
“RECOMMENDATION
“Respondent is guilty of serious misconduct as he and his counsel both recognize. Suspension from the practice of law is the customary discipline for such conduct. The panel was impressed, however, by the circumstances that led to Respondent’s misfortunes and his willingness to recognize his problems and take the necessary steps to deal with them.
“Respondent clearly suffers from a medical disorder. The undisputed evidence was his mental disorder debilitated him and prevented him from acting in a responsible fashion. His illness affected his judgment and thought processes to the extent that it affected his actual work product. The panel is convinced he made no misrepresentations to his clients with the intent to deceive.
“Respondent and his family have suffered public humiliation and embarrassment. He did not act from any motive for personal financial gain and did not profit from his actions in any way.
“Of some concern to the panel at this time is Respondent’s separation from his wife. At the time of the hearing, Respondent’s wife was present and she had undertaken to assist Respondent in the office management of his law practice, as well as participate with him in his treatment. To Respondent’s credit, based upon the representations of his attorney, Respondent appears to be handling the present situation well. The panel is mindful, however, of the fragile balance that holds Respondent’s life together as lie takes the necessary steps to recovery.
“The hearing panel concludes that this matter deserves special attention for the foregoing reasons:
“1. Acknowledgement of mental illness with prompt treatment and medication;
“2. Cooperation with all participants in the disciplinary process;
“3. Restitution to the aggrieved parties and assistance to their satisfaction;
“4. Confinement of misconduct to a definite time period ending in 1990 before diagnosis of illness and abated prior to the imposition of discipline and monitored by professional counseling of indefinite duration;
“5. Acceptance of continued professional practice by clients;
“6. Support of the rehabilitation effort by other members of the local bar;
“7. Support of the rehabilitation effort by the judiciary and agreed monitoring of Respondent’s actions by a competent and respected fellow attorney William Jeter. The panel was particularly impressed with Mr. Jeter’s integrity, candor and willingness to take the time to serve in a supervisory capacity for Respondent and monitor his activities;
“8. Unanimous conviction of the hearing panel and the Disciplinary Administrator that rehabilitation of Respondent will serve the best interests of the profession and that Respondent is sincere in his efforts and contrite. With proper medication and treatment, Respondent functions effectively in the practice of law.
“The panel recommends that the Court enter and publish an Order of Discipline of John Herman on the following terms:
“The Respondent be disciplined by suspension from the practice of law pursuant to Supreme Court Rule 203(a)(2) [1993 Kan. Ct. R. Annot. 162] for a period of twelve (12) months, said discipline being probated on the following terms and conditions pursuant to Supreme Court Rule 203(a)(5): (The panel’s initial inclination was to impose a twenty-four (24) month suspension. The panel recognizes Respondent has informally for the last ten (10) months engaged in a monitoring plan so its recommendation is for a lesser time period.)
“1. Attorney William Jeter will supervise Respondent’s legal practice for a period of twelve (12) months from the Supreme Court Order authorizing this plan.
“2. William Jeter shall be acting as an officer of the Court and as agent for the Court as supervisor of probation in monitoring the legal practice of Respondent. Mr. Jeter shall be afforded all immunities granted by Supreme Court Rule 223 [1993 Kan. Ct. R. Annot. 199] during the course of his activities as directed by the Supreme Court’s Order.
“3. Respondent will allow Mr. Jeter access to his files, his case inventory, his secretary, and his trust account. He shall periodically, but at least twice a month, check the following:
“a. The status of each case on Mr. Herman’s case list;
“b. The efficacy of Mr. Herman’s docketing system;
“c. Management of discovery;
“d. Responses to client requests for information;
“e. Mr. Herman’s trust account; and
“f. The view of local judges as to their evaluation of Respondent’s performance.
“4. The supervising attorney shall by separate writing acknowledge that he has read this proposed plan and that he agrees to serve in the capacity of supervising attorney as outlined herein and, further, that he has already reviewed the case inventory of the Respondent, familiarized himself in a general way with the client files and general type of practice of the Respondent, and states that there appears to be no apparent, significant problems with the case inventory of Respondent. On a quarterly basis, Mr. Jeter will report to the Disciplinary Administrator regarding the Respondent’s progress he observes. Mr. Jeter will immediately report any material deviation from proper practice he observes.
“5. The Respondent shall continue to attend the counseling sessions with Ms. Judy Caprez, licensed clinical social worker, and Dr. Tim Gatschet, and shall prepare and/or sign all necessary releases to direct and authorize Ms. Caprez and Dr. Gatschet to report periodically, but at least every two months, to the office of the Disciplinary Administrator on his progress in counseling. The report should note any significant deviation from the agreed appointments.
“6. Respondent shall obtain, prior to the implementation of this program, an updated report from Ms. Caprez and Dr. Gatschet which shall include at least the following:
“a. Their diagnosis of the psychological problems or condition of Respondent;
b. Any progress made by Respondent since his hearing on November 12, 1992; and
“c. Their prognosis for the future so far as the same may be made as it relates to Respondent and the recommended course of treatment.
“7. Ms. Judy Caprez and Dr. Tim Gatschet shall be acting as officers of the Court in reporting to the Disciplinary Administrator as required in Paragraph 5 and 6 herein, and shall be afforded all immunities granted by Supreme Court Rule 223 during the course of their activities covered by this plan or as directed by the Supreme Court.
"9. Respondent shall continue with good faith efforts to obtain legal malpractice liability insurance throughout the course of this probationary period. Respondent shall advise the office of the Disciplinary Administrator in writing of his efforts to obtain such insurance prior to the implementation of this program and shall provide the office of the Disciplinary Administrator with letter reports of his efforts at least every six (6) months during the course of his probationary period.
‘TO. At the end of [the term of discipline], the Disciplinary Administrator shall certify to the Supreme Court the Respondent’s satisfactory completion of probation.
“11. Upon report of any misconduct or noncompliance with these Orders by the Respondent, the Disciplinary Administrator shall promptly inform the Supreme Court and an Order shall be issued directing Respondent show cause why these Orders should not be vacated and such discipline be imposed by the Court as it deems just and proper without further formal proceedings.”
Herman filed a brief answer and statement of exceptions to the panel’s report. Herman agrees with the findings and conclusions stated in the report, except for certain “minor errors” pertaining to names, locations, and the diagnosis of illness.
Herman also states that he agrees with the recommended discipline and the accompanying narrative, except where the panel stated that it was mindful of the “fragile balance” that holds his life together during his recovery.
Standard of Review
“In State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.’ In State v. Ziegler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given tire same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.’ See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).” In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).
We find there is clear and convincing evidence establishing the violations found and enumerated by the panel as to each of the counts. We have reviewed updated reports prepared by Judy Caprez and Dr. Timothy Gatschet. These reports indicate that the respondent has continued to progress through treatment and therapy. William Jeter has, in writing, acknowledged the proposed plan and has agreed to serve as Herman’s supervising attorney. We agree with and adopt a modified version of the panel’s findings, conclusions, and recommendations. We have intentionally omitted paragraph 8 from the final hearing report. This paragraph stated that two Kansas district court judges should monitor William Jeter’s supervision of Herman, as well as Herman’s probation. We decline to follow this recommendation. We encourage all Kansas judges to visit with attorneys who seek or are deemed to be in need of guidance and support because personal problems have affected professional performance. The judicial chamber’s door should remain open. However, active Kansas judges should not be named as official supervisors of an attorney under an order of discipline issuing from this court.
Additionally, we impose the following requirements:
(1) Herman shall be disciplined by suspension from the practice of law under Supreme Court Rule 203(a)(2) (1993 Kan. Ct. R. Annot. 162) for a period of 24 months from the. date of this opinion, with the discipline pi'obated under Supreme Court Rule 203(a)(5) on the terms and conditions set out in the final hearing report as modified by this opinion.
(2) Either William Jeter or another attorney approved by this court shall continue to supervise Herman until such time as Herman secures legal malpractice insurance coverage in an amount to be approved by this court. Herman shall remain on probation during his supervision.
(3) Alternative medical and/or social work professionals may be substituted for Dr. Timothy Gatschet or Judy Caprez upon approval of the Disciplinary Administrator.
It Is Therefore Ordered that John C. Herman be suspended from the practice of law for a minimum period of 24 months in accordance with Supreme Court Rule 203(a)(2), the discipline being probated in accordance with Supreme Court Rule 203(a)(5) on the terms and conditions recommended by the panel, as modified by this court.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent. | [
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Per Curiam:
This original action in discipline was filed by the office of the Disciplinary Administrator against John E. Fierro, of Dodge City, an attorney admitted to the practice of law in Kansas.
Respondent admitted the allegations of the formal complaint filed by the Disciplinary Administrator and the matter was heard by a panel of the Board for Discipline of Attorneys on essentially uncontested evidence. Respondent was originally charged in Ford County with 12 counts of indecent liberties with a child for allegedly engaging in the lewd fondling or touching of six young girls. There was no sexual intercourse or sodomy involved. Following a plea bargain, respondent pled to six counts of attempted indecent liberties with a child. Respondent was sentenced to six terms of 3 to 10 years to run concurrently, ordered to reimburse the victims for counseling costs, and ordered to pay court costs. On June 25, 1993, respondent was temporarily suspended from the practice of law pending final resolution of this proceeding pursuant to Supreme Court Rule 203(b) (1993 Kan. Ct. R. Annot. 162).
The hearing panel determined that respondent had violated the Model Rules of Professional Conduct (MRPC) 8.4(b) (1993 Kan. Ct. R. Annot. 347), in committing a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects and MRPC 8.4(g), by engaging in other conduct that adversely reflects on a lawyer’s fitness to practice law. The panel recommended that respondent be disciplined by indefinite suspension from the practice of law while the Disciplinary Administrator recommends that respondent be disbarred.
In its report recommending indefinite suspension, the panel considered two recent cases involving similar criminal charges, In re Keithley, 252 Kan. 1053, 850 P.2d 227 (1993), and In re Wilson, 251 Kan. 252, 832 P.2d 347 (1992), and' concluded the present case more closely resembled Wilson than Keithley. Wilson was indefinitely suspended; Keithley was disbarred. While informative, we do not find either Wilson or Keithley to be sufficiently similar to the facts of the present case to be controlling.
The panel also considered certain aggravating and mitigating factors recommended for consideration by the ABA Standards for Imposing Lawyer Sanctions (1991). The panel found as aggravating factors a pattern of misconduct by respondent and the fact that multiple offenses were involved. In addition, we consider the vulnerability of these victims to be a factor under the ABA standards. In mitigation, the panel found that respondent was cooperative throughout all proceedings, that he has made substantial steps toward rehabilitation, and that he has demonstrated a great deal of remorse.
After a careful review of the entire record, we conclude that respondent has violated the Model Rules of Professional Conduct as found by the hearing panel and that the panel’s recommended discipline of indefinite suspension is appropriate.
It Is Therefore Ordered that John E. Fierro be and he is hereby disciplined by indefinite suspension from the practice of law in the State of Kansas commencing on March 4¿ 1994.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187), that he shall pay the costs of this proceeding, and that this order shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Davis, J.:
David and Deanna Essmiller appeal from a jury verdict in this eminent domain proceeding. Their contentions on appeal center upon the admissibility of evidence. They contend that the trial court erred by allowing the City of Great Bend’s expert appraiser to testify about the condemnation damages because the expert considered frequency and duration of flooding as a factor in reaching his opinion. They also contend that the court erred by allowing the expert to testify about condemnation damages based upon a cost approach rather than the market data approach prescribed by the pretrial order. Finding no reversible error,' we affirm.
On May 2, 1991, the City filed a petition for condemnation of land for a flood control project, including land owned by the Essmillers. The City sought to condemn in fee 7.51 acres and to secure a ponding easement on approximately 61.8 acres of Essmillers 80-acre tract.
The court-appointed appraisers awarded the Essmillers $378,020 for condemnation of the 7.51 acres and for the taking of the ponding easement over the 61.8 acres. The appraisers also awarded $1,650 for crop damages; that award was not appealed to the district court and is not at issue in this appeal.
The Essmillers timely appealed to the district court. The jury returned a verdict of $298,000, resulting in a deficiency or overpayment by the City of $80,020. The Essmillers appeal.
Nature of Interest Taken
The first question involves careful consideration of the nature of the interest taken by the City to secure a ponding easement on the 61.8 acres of the Essmiller property. The parties are in agreement with the law applicable to this case but are deeply divided on the question of whether the City was allowed to introduce evidence of a limited use of the ponding easement, thereby contradicting the description of the easement taken according to the petition and appraisers’ report. Kansas law is clear that regardless of the future intention of the condemnor, the rights actually acquired, and not the intended use of those rights, is the measure of the landowner’s compensation. Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 158, 392 P.2d 914 (1964).
An eminent domain proceeding is a special statutory creature and is not a civil action governed by the Kansas Code of Civil Procedure. The eminent domain proceeding is administrative rather than judicial. K.S.A. 26-501 provides, in- part, that proceedings in eminent domain shall be brought by filing a verified petition in the district court of the county in which the real estate is situated. That was done in this case.
K.S.A. 26-502 provides: “A petition shall include allegations of (1) the authority for and the purpose of the taking; [and] (2) a description of each lot, parcel, or tract of land and the nature of the interest to be taken.” K.S.A. 26-504 further provides that the court, upon finding that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff, shall enter an order appointing three disinterested householders of the county to view and appraise the value of the land and to determine the damages resulting from the taking.
The law requires the condemnor in the verified petition to describe the nature of the interest to be taken, and further requires the appraisers, after receiving written instructions from the court, to view and value the land taken and to assess damages resulting from the taking. Upon completion of their work, the appraisers shall file their report in the office of the clerk of the district court. K.S.A. 26-505; K.S.A. 26-506. The appraisers’ report identifies the interest taken and the damages resulting from the taking. It is from this report that an appeal is taken by a dissatisfied party, plaintiff or defendant.
According to the statutory procedure, the plaintiff condemnor is first required to describe the nature of the interest to be taken in its petition. This act of describing the nature of the interest the condemnor is to take is very important. Indeed, in the case of Hudson v. City of Shawnee, 246 Kan. 395, Syl. ¶ 2, 790 P.2d 933 (1990), we said that “[t]he property rights taken by a condemnor are to be determined by the language in the petition for eminent domain and the appraisers’ report. A condemnor bears the burden of drafting its petition to show the limitations in its taking.”
In Hudson, the City of Shawnee’s petition for condemnation described the easement in broad terms, incorporating the use of all three driveways to the property. Even though there was evidence that at least one of these driveways was always open to the landowner and the landowner’s customers, the City was prohibited from introducing evidence that the condemnor’s intended use was less than the fullest use permitted under the description of its easement. The language used by the City in its petition controlled. 246 Kan. at 401.
Of crucial importance is the description of the nature of the interest taken in the appraisers’ report. In most cases, the interest set forth in the petition becomes the interest identified in the appraisers’ report. If the two are different, then both descriptions must be read together to determine the nature of the interest to be taken. Any ambiguity must be resolved in favor of the landowner and ultimately determined by the description contained in the appraisers’ report. Hudson, 246 Kan. 395, Syl. ¶ 2; Roberts, 193 Kan. at 158-59; Sutton v. Frazier, 183 Kan. 33, 45, 325 P.2d 338 (1958).
In Roberts, 193 Kan. at 157-59, we said:
“The commissioners’ report, and only their report, is evidence of the land appropriated, the extent of the easement and its use.
“On appeal from the commissioners’ award the only matter to be litigated is the amount of damages. The trier of facts is not concerned with evidence as to the intended extent of the use. The extent of the use is to be determined from the language in the commissioners’ report as a matter of law.”
In Sutton, 183 Kan. at 45, we said that “[t]he report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment. The landowners may rely implicitly on the [appraisers’] report filed. This [appraisers’] report becomes the evidence and the only evidence of the commissioners’ doings.”
The principle established in the above cases is that once the nature of the interest to be taken is identified in the appraisers’ report, parol evidence will not be admitted for the purpose of establishing a lesser interest based on the condemnor’s intended use. The rights acquired, not the intended use of those rights, are the basis for assessing landowners’ damages. Roberts, 193 Kan. at 159.
The rationale for such a principle is apparent, for “[i]f the landowners are not compensated in full for the full use, as set out in the [appraisers’] report, the condemnor can take the full use in the future without further compensation to the landowners.” Roberts, 193 Kan. at 158. In Roberts, the condemnor attempted to introduce evidence that it intended only infrequent use of the flooding easement. In responding to this attempt, we said:
“If the condemnor desires only an infrequent limited use of the easement condemned it need only make certain that the limited use is properly stated in the petition and incorporated in the commissioners’ report which is filed with the register of deeds and governs the extent of the easement and the extent of the use.” 193 Kan. at 158-59.
Admissibility of Expert Testimony
The landowners contend that the tidal court erred by allowing Herman Oakes, one of the City’s experts, to testify about the condemnation damages based upon his consideration.of frequency and duration of flooding. According to their argument, both the City’s petition and the appraisers’ report describe a permanent ponding easement, and to allow City experts to testify to a lesser use based on anticipated rainfall is contrary to the holding in Roberts.
In order to properly focus this issue, a brief statement of facts is necessary. The City employed two experts to appraise the property on its behalf. During the first day of trial, the City called its engineer and attempted to introduce tables involving the frequency and duration of rainfall and flooding over the pond-ing easement to be taken. The court sustained the landowners’ objection, ruling
“that the extent of the easement condemned was to obtain a permanent easement for the right to detain and store water on, across, and over the easement area .... [Tjhere is nothing in the text of the report of appraisers as a matter of law that serves as a restriction of this easement or diminishes it in any way based on the duration or frequency of ponding, [and] parol evidence is not admissible to vary the extent of the use that is stated in the Commissioners’ report, of the appraisers report.”
Both city appraisers had uséd the frequency and duration tables in appraising the ponding easement. The court recognized the problem created by its ruling when it asked the City whether it would have any witnesses to present based upon its ruling. The City indicated it would need at least 10 days’ to 2 weeks’ continuance so that another appraisal could be obtained without considering the tables. However, at the end of that day of trial, the City stated to the court that it would be ready to go the next day even though the court had granted the City only a one-day continuance.
Both appraisers apparently deleted any reference in their reports to the frequency and duration tables. Yet, the valuations remained basically the same. Initially, the court denied the land owners’ motion to strike or prevent the City appraisers from testifying. In doing so, the court noted:
“They have apparently deleted their references to the frequency of flooding. Their reports are subject to cross-examination, and the case law is very clear that experts should be given or should be, that attorneys should be granted broad leeway and given when cross-examining experts. If their opinions are faulty, I’m sure that that can be disclosed in the process of cross-examination.”
The landowners then sought from the court the following: “I would ask that the Court at least issue an order that that type of information [limited use based on flooding by reason of anticipated rainfall] cannot be brought out through redirect to rehabilitate these witnesses.”
The court responded:
“I think I have previously stated that the case law is clear that frequency and duration of flooding cannot be used to ameliorate the damages and if you want a motion in limine to that effect I’ll grant tire motion in limine but you have to be advised that even though a motion in limine is granted, which it is, if you open the subject on cross-examination, then he is free to explore it on redirect. You can’t open the subject and then bar him from exploring it.”
At a later time during the trial before the appraisers had testified, and after the landowners had the opportunity to voir dire each witness and renew their motion to prevent the witnesses from testifying, the trial court excluded the testimony of City Appraiser Jack Headley regarding the value of the ponding easement. The court excluded his opinion on the basis of Roberts because it determined that Headley had based his opinion on the frequency and duration tables. In other words, the court determined that Headley would be testifying to a limited use of the ponding easement by the City when the easement set forth in the appraisers’ report described a greater taking by the City.
The court did not exclude the testimony on the same subject from the City’s other expert, Herman Oakes. Even though the frequency of rainfall was a factor considered in Oakes’ opinion, his opinion was not based exclusively on the tables, as was Head-ley’s. Yet, the landowners contend that Oakes merely deleted any mention of the tables in his revised report but did not change his appraisal in any other respect. The landowners state in their brief:
“Oakes plainly and impermissibly relied on the frequency and duration data for both his use and valuation opinions, by his own admission, but appellants [landowners] could not point [this] out to the jury without violating the in limine order entered by the court and parading the excluded evidence in front of the jury. Appellants’ unwillingness and failure to cross-examine Oakes with the frequency and duration data was not a trial strategy decision. Rather, it was a decision forced on appellants by the trial court’s ruling that if the subject was covered on cross-examination the City could redirect examine on it as well. In other words, the trial court’s error occurred before any opportunity for cross-examination of arose, and could not be cured by such cross-examination.”
It is important to note that the landowners initially moved to prevent any evidence from being presented to the jury about frequency and duration tables. They sought through their motion in limine to exclude such evidence on redirect examination. Nothing prevented the landowners from cross-examining Oakes concerning the basis of his opinion. It is apparent that the landowners did not want the jury to hear anything about frequency and duration of flooding. As to Oakes’ testimony, the court said, “[T]he only restriction I am placing upon Mr. Oakes’ testimony is that he will not be allowed to testify to the effect of the frequency and duration of flooding on market value of the property after the taking.” In light of the court’s earlier rulings, the landowners were free to explore with the witness the basis of his opinion on cross-examination.
The landowners, in their brief, note:
“Consequently, the jury never even knew it was awarding damages based upon this limited use, even though it obviously did. To compound this error, the trial court’s in limine order precluded the Essmillers from cross-examining Oakes on his improper reliance upon this limited use, because the trial court ruled the Essmillers could not cover the subject on cross-examination without ‘opening the door’ for the City to introduce evidence of frequency and duration on redirect examination. The Essmillers were obviously placed in a no-win, Catch-22 situation by the lower court’s ruling.”
The trial court correctly noted that wide latitude would be given counsel in cross-examining the opposing side’s expert witnesses. In this case, Oakes’ opinion of value was not subjected to cross-examination on the precise subject that the landowners complain about on appeal, that is, that Oakes impermissibly based his calculation of damages upon the frequency and duration of rainfall and flooding as gleaned from the frequency and duration tables. The reason Oakes was not cross-examined on this subject, in the words of counsel for the landowners, was “because to do so would have simply paraded the misleading and prejudicial evidence before the jury.” Counsel elected not to cross-examine on this subject. The court did not, by any of its rulings, prevent such cross-examination.
The landowners ask this court to conclude as a matter of law that the trial court erred by allowing Oakes’ expert opinion testimony on the value of the ponding easement. The reason asserted by the landowners is that Oakes’ opinion was based upon a lesser use than that specified in the appraisers’ report. Thus, according to the landowners’ argument, the jury valuation was based on evidence of a lesser use than the easement described in the appraisers’ report because Oakes’ opinion reflects a lesser use based on anticipated rainfall.
“The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991).
Applying this standard, we conclude that the trial court did not abuse its discretion. While Oakes admitted that he considered the frequency of rainfall as a factor, the record is clear that this was not the only or the most significant factor he considered. Roberts and related holdings do not deal with the admissibility of evidence in the form of expert opinions. They stand for the proposition that “[t]he trier of facts is not concerned with evidence as to the intended extent of the use. The extent of the use is to be determined from the language in the [appraiser’s] report as a matter of law.” 193 Kan. at 159. Oakes’ opinion may have been based in part upon anticipated rainfall. This is not a basis for excluding his expert testimony. Only if his opinion was based exclusively upon anticipated rainfall as Headley’s opinion was, would the court be required by law to exclude the opinion testimony. We conclude that the trial court did not err in admitting the testimony of Oakes.
The landowners requested that the court give the following instruction:
“For purposes of determining compensation for the ponding easement acquired by the Condemnor, you are to determine the compensation due the landowners based upon the Condemnor making the full use of the rights acquired. Your determination of compensation is not to be based upon a use more limited than the full use which the Condemnor has acquired.”
They contend that the court erred in not giving this instruction. However, the giving of this instruction was unnecessary and potentially misleading. The tables were excluded by the trial court. They jury heard no evidence on the frequency and duration of rainfall, nor did the jury hear any evidence concerning the tables. Even though Oakes admitted outside the presence of the jury in voir dire questioning by the landowners that frequency of rainfall was a factor he considered in arriving at his damage figure, we have no idea what impact this factor may have had upon the jury determination of damages. The evidence before the jury on the ponding easement did not include any evidence of a more limited use. The landowners elected not to cross-examine Oakes regarding his opinion but ask us to assume that his opinion was based on frequency of rainfall.
Oakes’ opinion is severely criticized by the landowners in their brief and in argument before this court. The conclusions they would have this court reach is that Oakes based his opinion upon anticipated rainfall as gleaned from the frequency and duration tables. Yet, on the record before us Oakes denied basing his opinion on frequency and duration of flooding. Neither his partial reliance on frequency and duration of flooding, nor the fact that his appraisal did not change when he modified his report was presented to the jury. Counsel chose not to question the basis of Oakes’ opinion as it relates to limited use “because to do so would have simply paraded the misleading and prejudicial evidence before the jury.” Oakes told the trial court under oath during voir dire questioning that he did not base his opinion on frequency and duration of flooding, although it was a factor in formulating his opinion. Whether that testimony was truthful, given the identical values in Oakes’. initial and revised reports, was not a matter for the trial court to decide nor is it a matter for this court to decide. Credibility of witnesses is a matter for the factfinder to determine. In a jury trial, the jury is to determine the witnesses’ credibility. On the record before, us we do not know what part rainfall data played in Oakes’ opinion, and we may not assume that it was determinative, resulting in a verdict necessarily based on intended use rather than property taken.
In the absence of any evidence that the jury based its award of damages on a limited use instead of the actual nature of the easement described in the City’s petition and the appraisers’ report, we must affirm.
Admissibility of Evidence Based on Cost Approach
The landowners contend that the court erred by allowing Oakes to base his opinion on a cost approach rather than the market data approach set forth in the pretrial order. The pretrial order provided that “[jjust compensation is to be determined by the market data approach as provided by law.”
We note first that Oakes stated at the outset of his testimony that his appraisal of the improvements was based on the cost less depreciation approach. The landowners did not object at that time. Oakes then testified at length and in detail on direct and cross-examination about his valuation of the improvements. The landowners did not object during that testimony. At the conclusion of his testimony, which covered more than 70 pages in the transcript, the City moved to admit Oakes’ report into evidence. The landowners objected to the report because it was contrary to the pretrial order and at that time moved to strike all of his testimony.
With respect to the substantive issue, we recognize the importance of pretrial orders in the fair and orderly trial of cases. We believe, however, that the admission of the cost approach data in this case did not violate the pretrial order. Although Kansas law prefers the market data approach, it also recognizes that under some circumstances alternative approaches may be used. Such circumstances exist here. The pretrial order’s reference to use of the market data approach “as provided by law” permits alternative methods when appropriate under Kansas law. It thus permitted an alternative approach on the facts of this case.
The parties agree that Oakes used the market data approach to value the real estate interests but used a cost approach to value at least some of the improvements. Oakes used the cost approach to value all of the improvements that would remain on the property after the taking, added that to the value of buildings taken by the ponding easement, and then reached a total value of all improvements.
The value of all improvements that were to be left on the property was $233,700; the total value of buildings that were to be removed because of the ponding easement was $105,000. Oakes then added the value of the land to the value of the improvements for a total of $422,000 as the “before-taking” value of the property. For the “after-taking” value, he determined that the best use of the 59.49 acres remaining would be dry cropland, which he valued at $450 per acre, taking into consideration the impact of the ponding easement. To that total land value of $26,770, he added the value of the remaining impi'ovements, for a total value of the property of $273,500 after the taking. According to Oakes, the Essmillers’ damages amounted to $148,500 and were defined by the difference between the before value and the after value.
This court recently reiterated the three generally accepted methods of appraising real property:
“ ‘(a) the market data approach which is based upon what comparable properties liad sold for; (b) the depreciated replacement cost or cost approach which is based upon what it would cost to acquire the land and to build equivalent improvements less depreciation; and (c) the income approach or capitalization of income which is based upon what the property is producing or is capable of producing in income.” Board of Sedgwick County Comm’rs v. Kiser Living Trust, 250 Kan. 84, 92, 825 P.2d 130 (1992).
In Kiser, this court held that the market data approach was
“the most common method of valuing real property and [that it] should be used when there have been sales of comparable properties in the same locale, near the time of the taking. When the property is so unique that there is no ascertainable market and there are no sales of reasonably similar or comparable property, the other methods — depreciated replacement cost approach or the income approach — may be used.” 250 Kan. at 92.
Under Kansas law, the market approach is preferred, but other methods may be used if there are no “comparables” from which to develop the market data. The parties agree that Oakes used the cost approach because he considered the improvements to be unique or special and because it was difficult to find similarly improved farms to make direct sales comparisons. Oakes testified that it was hard to find other 80-acre tracts that were so highly improved. He chose the cost alternative because he believed it would be “more fair to the property owner” given the low additional value typically given improvements on over-improved farms. There is within the record a basis for admission of expert testimony based on the cost approach.
The Essmillers cite In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 582 P.2d 228 (1978), to support their contention that hog farming operations are not unique and that the market data valuation should have been required. In Central Kansas Electric Coop., we rejected the notion that the use of property for hog farming amounted to a special or unique use that made it appropriate to use an alternative to the-market value approach. 224 Kan. at 314. We held that ‘[t]he use of the property for swine production is no more unique than would be the production of cattle, poultry, sheep or some other operation which might involve the use of special buildings or location.” 224 Kan. at 316.
Unlike the property in Central Kansas Electric Coop., Essmillers’ property was not only used as a hog farming operation but was also used as a farm residence and headquarters for a large grain farming operation, a custom grain and feed-mixing business, and a custom farm-spraying business. Oakes’ testimony in this case established that he did not necessarily consider the hog farming operations on Essmillers’ property unique. He did consider the Essmiller property to be overimproved and determined that the more fair way to address that overimprovement in his appraisal was to value the improvements separately on a cost basis. It was his opinion that if the property was sold on the open market, potential buyers would not pay the full value for all of the improvements. Under the above circumstances the record supports the trial court’s ruling allowing Oakes to use the cost approach to value the improvements. See Kiser, 250 Kan. at 92.
The Essmillers also contend on appeal that it was not appropriate to rely on the cost approach to value improvements in this case because the trial court did not rule in advance of trial that there were no comparables and that the property was indeed unique. They properly note that in Kiser, 250 Kan. at 88-89, and Ellis v. City of Kansas City, 225 Kan. 168, 172, 589 P.2d 552 (1979), the trial courts determined before trial that the property was unique and the proposed comparables could not be used, and that an alternative to the market data approach should be used to value the property. Neither case requires, however, that such a determination must be made before trial or be forever barred. The source of this purported requirement that any “uniqueness” determination be made before trial is City of Shawnee v. Webb, 236 Kan. 504, 694 P.2d 896 (1985). In Syl. ¶ 4 of Webb, this court held stated that “the trial court has broad discretion in determining what other sales of real estates are comparable. Such determination should be made prior to trial.” (Emphasis added). Although Webb held that the determination of what sales are comparable should be made before trial, it did not require that it be determined before trial that there are no comparables. In Webb, the issue was whether the trial court erred in excluding three proposed comparables. The condemnor in Webb originally proposed 10 comparables and then added 2 more after the trial court determined that 3 were not comparable and could not be used. Although it might have been better for such determinations to be made here before trial, the trial court’s failure to do so in this case is not reversible error provided its ultimate determination was proper.
Moreover, the reference to the market data approach in the pretrial order does not necessarily mandate its use throughout trial, particularly where, as here, circumstances warranted the cost approach. The trial court has broad discretion to modify a pretrial order to prevent manifest injustice. Frevela v. McAloon, 222 Kan. 295, 564 P.2d 508 (1977). We hold that the trial court did not err in allowing Oakes to testify about the value of the property. His reliance on the cost approach to value the improvements was not contrary to state law.
The admissibility of expert testimony is within the trial court’s discretion. The test on appeal is whether any reasonable person would agree with the trial court. If any reasonable person would agree, this court will not disturb the trial court’s decision. See Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991). We conclude that the pretrial order’s requirement that the market data approach be used “as provided by law” did not mandate use of the market data approach with respect to all valuations where, as here, circumstances warranted the cost approach in accordance with Kansas law. We hold that the trial court did not abuse its discretion in allowing Oakes to testify about the value of the property or in admitting Oakes’ report into evidence. His reliance on the cost approach to value the improvement was consistent with state law and, thus, consistent with the pretrial order.
The landowners also argue that the trial court erred in refusing to give the following instruction: “In determining the amount of your award you may consider the value of the property to the owner for his special use or purpose, or for any purpose to which his property is reasonably adaptable. These special uses or purposes must be real, not speculative, conjectural, or remote.”
The landowners requested this instruction after the trial court allowed Oakes to testify about values using the cost approach to value improvements, arguing that use of the cost approach was based on a determination that the property had a special use or purpose.
If the jury instructions, read as a whole, fairly instruct the jury on the law governing the case, are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991); Leiker v. Gafford, 245 Kan. 325, Syl. ¶ 1, 778 P.2d 823 (1989). Viewed as a whole, the instructions that the trial court gave properly and fairly instructed the jury on the law of the case.
Given our foregoing rulings in this case, the additional instructions that the landowners requested could have misled the jury, and the trial court did not err in refusing to give them. Viewing Oakes’ testimony as a whole, he did not claim that he used the cost approach to value improvements because of any special use. Rather, he used the cost approach because the market approach would result in an undervaluation of the improvements given the overimproved nature of the property. Instructing the jury on a special use could have been misleading.
The landowners’ final contention is that the trial court erred in denying their motion for a new trial. “Our appellate review of the order denying a new trial is limited to whether the trial court abused its discretion.” Statev. Anderson, 211 Kan. 148, 150, 505 P.2d 691 (1973). The landowners claim that they did not have a reasonable opportunity to present their evidence because of the alleged errors of the trial court discussed above. Because we have resolved those issues against the landowners and concluded that the trial court did not err, we also conclude that the trial court did not abuse its discretion in denying the Essmillers’ motion for new trial.
Affirmed.
Abbott, J., not participating.
Prager, CJ. Retired, assigned. | [
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The opinion of the court was delivered by
McFarland, J.:
Darron Edwards appeals from the district court’s denial of: (1) his motion to withdraw his pleas of guilty; and (2) his motion to modify the sentences imposed. Subsequent to the hearing of oral arguments herein, Edwards filed a motion to withdraw the issue raised relative to denial of his motion to withdraw his guilty pleas. The motion was granted. The sole issue before us is whether the district court erred in denying the motion seeking sentence modification without considering the policy and factors set out in K.S.A. 21-4601 and K.S.A. 21-4606.
On January 17, 1992, Edwards., pursuant to a plea agreement, entered guilty pleas to aggravated criminal sodomy, aggravated burglary, attempted rape, two counts of rape, and two counts of aggravated kidnapping. Edwards waived preparation of a pre-sentence investigation report and was sentenced the same day. The controlling term was life consecutive to 20 years to life. Edwards received the sentences for which he had bargained and which both he and the State had recommended that the district court impose. These facts mirror those in State v. Crawford, 250 Kan. 174, Syl., 824 P.2d 951 (1992), wherein we held:
“Where (1) a plea bargain is knowingly and voluntarily entered into which contains specific sentence recommendations; (2) the defendant urges the district court to impose the recommended sentences; and (3) the district court then imposes the recommended sentences, the defendant shall be deemed to have waived any consideration or application by the district court of the sentencing factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606.”
In the case before us, Edwards is not contending there is error in the district court’s failure to consider or apply K.S.A. 21-4601 or 21-4606 at the time of the sentencing. Rather, Edwards contends the district court erred in failing to consider the sentencing factors and considerations set forth in .K.S.A. 21-4601 and 21-4606 in its determination of his motion to modify the sentences imposed. A similar issue was raised in State v. Mareska, 253 Kan. 431, 855 P.2d 954 (1993). In Mareska, defendant entered pleas of guilty pursuant to a plea agreement and received the recommended sentences. Upon the denial of his motion to modify, Mareska appealed, contending that the district court erred in denying his motion to modify without consideration or application of the factors set forth in K.S.A. 21-4601 and 21-4606. In affirming the district court, we held:
“Under the facts of this case, the district court did not abuse its discretion in denying the defendant’s motion to modify sentence. K.S.A. 21-4606 applies to sentencing and not to modification of sentence, and, since the Topeka Correctional Facility report contained no new significant information nor recommended modification of the defendant’s sentence, the relevant provision of K.S.A. 1992 Supp. 21-4603(4) is not applicable.” 253 Kan. 431, Syl.
The only information contained in Edwards’ Topeka Correctional Facility report is as follows:
“Based on the findings of the present evaluation, the team recommends: Serve appropriate sentence.
“Comments:
“This inmate refused to participate in the evaluation process. In light of the severity of his offenses, there is obviously no recommendation that we can make other than continued incarceration.”
The only facts in which Mareska differs are: (1) Preparation of a presentence report was not waived; and (2) the district court addressed the factors in K.S.A. 21-4601 and 21-4606 at the time of sentencing. At one point in the Mareska opinion, we stated there was no requirement that the district court reconsider these factors in the hearing on the motion to modify. We believe the previously stated factual differences are not crucial to the holding in Mareska and that Mareska is controlling herein. Under Ma-reska, K.S.A. 21-4601 and 21-4606 apply only to sentencing and not to modification of sentence where no new significant information was contained in the Topeka Correctional Facility report or no sentence modification was recommended in the report. That is the precise situation in the case before us.
We find no abuse of discretion in the district court’s denial of defendant’s motion for modification of sentence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Norman Roy Fenton (defendant-appellant) guilty of first-degree murder (K.S.A. 21-3401). The appellant raises five issues on appeal. He contends the trial court erred in (1) permitting the jury to view trial exhibits a second time prior to retiring for deliberations; (2) refusing to permit the appellant to question the jury about events occurring during deliberations; (3) refusing to grant a new trial after the disclosure of outside communications to the jury; (4) admitting testimony of a sheriff’s matron; and (5) that there was insufficient evidence of premeditation.
The facts are not complex, but are lengthy because of their circumstantial nature. On the evening of November 28, 1975, twenty-five-year-old Jan E. Fenton was murdered in the bathroom of her home in Sharon, Kansas. She was shot in the face with a single .22-caliber bullet. Mrs. Fenton’s husband, the appellant, reported the murder to authorities at about 10:30 p.m. on the night it occurred. In a statement to the authorities the appellant stated that Mrs. Fenton was alive when he left their home about 9:30 p.m. and drove to Medicine Lodge for beer, cigarettes and baby food. He returned about 10:30 p.m. and discovered his wife dead.
The sheriff and KBI investigators conducted a thorough examination of the crime scene, the victim, and any persons believed to have information concerning the murder. The appellant was the principal suspect, but was not arrested or charged at that time.
Three years after the murder, in October 1978, two teenage boys were scavenging for lost fishing lures at the Barber County State Lake; the lake had recently been partially drained to facilitate repair of the dam. The lake is located a few miles north of Medicine Lodge, and northeast of Sharon. The boys discovered a .22-caliber rifle submerged in the exposed lake bed. They cleaned the rifle, fired some shells in it, then turned it over to law enforcement authorities.
KBI agents conducted ballistics tests with the rifle. They compared spent .22-caliber shell casings with two spent .22-caliber shell casings which were found the night of the murder. The two .22-caliber shell casings were found lying on the floor of the Fenton home, just outside the bathroom door. Investigators had determined that two bullets had been fired at Mrs. Fenton. One bullet missed and exited through the bathroom window, leaving small holes in the curtain, main window, storm window and screen. The second bullet struck Mrs. Fenton in the face, severed the spinal cord, and lodged in the first vertebrae. The ballistics tests indicated the two shell casings found in the Fenton home were probably fired in the .22-caliber rifle which was found in the lake.
The rifle was identified as the same make as one which belonged to the appellant. The night of the murder the appellant reported to the sheriff and KBI agents that his rifle must have been stolen by the murderer.
The discovery of the murder weapon provided the county attorney with sufficient additional evidence to support the filing of a criminal complaint charging the appellant with first-degree murder. At the trial in April 1979, the following additional evidence was presented.
Over the appellant’s objection, the State presented the testimony of LoVae Blunk. Mrs. Blunk was the sheriff’s wife and occasionally assisted the sheriff as a matron. Mrs. Blunk testified that on February 10, 1975, she met the deceased, Mrs. Fenton, after the appellant sought a court order for the protective custody of Mrs. Fenton. The Fentons had become embroiled in a marital dispute, culminating in Mrs. Fenton throwing a butcher knife at the appellant. Mrs. Blunk testified that she sat in on conversations between the Fentons and the county judge, and between the Fentons and the county medical officer. The focal point of Mrs. Blunk’s testimony was the following:
“Dr. Stucky told them that they could leave, at which time, Mrs. Fenton asked Norman if he was ready to go home and he said, ‘Yes, but if this happens again, I’ll kill you.’ ”
Mrs. Blunk further testified that Mrs. Fenton told Dr. Stucky that she and the appellant always threatened each other during arguments, but they did not mean it. Mrs. Blunk testified with the aid of written notes which she prepared in November 1975, after the murder, and nine months after the statements were made.
Dr. Charles Atwater, a psychologist with the area mental health institute, testified that he counseled with the appellant and Mrs. Fenton once in March and again in April 1975. Dr. Atwater counseled the Fentons regarding fairly common marital com plaints. Mrs. Fenton complained about lack of attention, lack of communication, money disputes, and the appellant’s occasional excessive drinking. The appellant complained about Mrs. Fen-ton’s nagging on the same subjects. Dr. Atwater testified that the Fentons desired to save the marriage because they had recently learned Mrs. Fenton was pregnant.
Duane Bell, a KBI agent, testified concerning his investigation of the crime scene, and his interrogation of the appellant. He testified that the appellant described his activities on the day of the crime, and explained his absence for the one-hour period when Mrs. Fenton was allegedly shot. The appellant said he came home around 6:30 p.m. and shortly thereafter his wife began feeding the baby and preparing supper. At 9:30 p.m. he left and drove to Medicine Lodge to buy beer, cigarettes and baby food. The appellant discovered the grocery store was closed, and went to a tavern where he purchased two six-packs of beer and two packages of cigarettes. When the appellant returned home he found his wife lying in a pool of blood on the bathroom floor; he grabbed her leg, which was limp, and believed she was dead. He then called the sheriff.
Officer Bell further testified to several things he found during his investigation which tended to impeach the appellant’s story. There was no sign of forced entry, struggle, attempted rape, or any other evidence which might indicate an outside party killed Mrs. Fenton. Officer Bell found three or four full packages of cigarettes in the house, and two partial cigarette packages. These were in addition to the two cigarette packages the appellant purchased at the tavern. There were also a few cans of baby food and formula in the refrigerator. Supper had not been eaten that evening; partially fried hamburger and potatoes were still in skillets on the stove.
Sheriff John Blunk testified that when he arrived at the Fenton home, the appellant kept saying that someone shot his wife. Deputy Roud French testified that about midnight he heard the appellant ask the coroner where Mrs. Fenton had been shot. Both officers testified that at that time it had not been determined that Mrs. Fenton had been shot. Because of the position of the victim’s body on the bathroom floor, an observer could not see the wound, only blood. Dr. Ball, the coroner, also testified that because of the position of the victim’s body on the floor, the cause of death was not immediately ascertainable.
Dr. William Eckert performed an autopsy on Mrs. Fenton. He testified there was no signs of defensive wounds, attempted rape, or attempted theft of the victim’s wedding rings.
Detective Dennis Radke, of the Reno County Sheriff’s Office, testified that in February 1979, he was contacted by Norma Lambert, in reference to an unrelated crime. Norma Lambert was the appellant’s twenty-three-year-old daughter by his first marriage. Norma told Detective Radke that the appellant killed Jan Fenton. Norma gave a statement to Detective Radke, which was transcribed by a court reporter and admitted at the trial. In the statement Norma testified that she resided with the appellant and his third wife for about four months in 1977. Norma stated that on three separate occasions the appellant, under the influence of alcohol, made statements indicating he had shot Mrs. Fenton.
Additional evidence presented by the State showed that the Fentons applied for life insurance policies on themselves and on their newborn baby, in October 1975. The applications were made after a life insurance salesman, Otis Lichlyter, solicited the applications. The appellant did not request life insurance, but applied at the same time as Mrs. Fenton. Mrs. Fenton was accepted for a $20,000 term policy, with triple indemnity for accidental death ($60,000). The appellant’s application for an identical policy was rejected for an undisclosed reason, after the death of Mrs. Fenton. In 1976 the appellant collected $60,805 from the policy on his wife.
Jan Fenton’s mother and sister also testified at the trial. They said the appellant gave custody of the seven-week-old baby boy to the sister shortly after the murder. Within a year, the sister adopted the baby with the appellant’s consent. The sister told the appellant she did not want any of the insurance money for the child, and the appellant never used any of the insurance money for the child’s benefit.
There was also testimony that the appellant remarried within a few months after the murder. There was testimony that the appellant may have been acquainted with his third wife prior to Mrs. Fenton’s death.
The appellant did not testify in his defense, but presented testimony to discredit Norma’s testimony. The appellant also presented testimony of his presence in the tavern to buy beer and cigarettes the night of the murder, at about 10 p.m. A copy of a cancelled check for $6 was admitted into evidence. The appellant presented testimony of a non-expert witness who viewed the crime scene; the witness opined that a person six-feet tall or taller must have shot Mrs. Fenton. The witness testified after examining the path of the bullet through the bathroom window. The appellant is less than six-feet tall.
At oral argument, the appellant emphasized his contention that the trial court erred in not granting a new trial because of prejudicial outside communications, by persons unknown, with members of the jury. We will confront that issue first.
Several days after the trial, a juror told the appellant the jurors had heard a threat that the appellant would kill the jurors if he was convicted. Upon the appellant’s motion, the trial court held an evidentiary hearing to determine the nature and source of the threat, and whether the threat had a prejudicial effect on the appellant’s rights. The parties have submitted an agreed statement of facts summarizing the hearing, pursuant to Supreme Court Rule 3.05. In pertinent part the agreed statement is as follows:
“2. That an evidentiary hearing was had on the 21st day of May, 1979, concerning the Defendant’s Motion for an evidentiary hearing to take testimony of the members of the jury. The following constitutes the findings of fact and the rulings of the trial judge concerning said hearing:
“a) That the trial judge ruled that the Defendant could question the jury only as to whether or not the various members had heard that the Defendant had threatened to kill members of the jury if he was convicted; when they had heard such statement; and, to determine the source of said threat.
“b) That the essence of the threat that was communicated to the jury was that if the Defendant was convicted by the jury the Defendant would kill the members of the jury.
“c) That three jurors had testified that they had heard about the threat prior to jury deliberation in this matter.
“d) That the remaining nine jurors had heard about the threat while still in the jury room but only after the verdict had been determined.
“e) That the trial judge questioned the members of the jury as to what effect, if any, the threat had upon their deliberation and determination in this matter. Such questioning by the trial judge was .objected to by the Defendant citing K.S.A. 60-441 as authority for such objection.
“f) That all the members of the jury stated that they considered the threat as a rumor and that it did not effect [sic] their decision in this matter.”
The appellant contends the outside communication to the jurors raised a presumption of prejudice, which the State has failed to rebut. The appellant relies on Remmer v. United States, 347 U.S. 227, 229, 98 L.Ed. 654, 74 S.Ct. 450 (1954); Mattox v. United States, 146 U.S. 140, 36 L.Ed. 917, 13 S.Ct. 50 (1892); and United States v. Greer, 620 F.2d 1383 (10th Cir. 1980). The presumption of prejudice applied in federal courts is not founded upon a constitutional basis, and is not binding on the states. People v. Hunter, - Colo. App. _, _, 607 P.2d 1026 (1979); see Murphy v. Florida, 421 U.S. 794, 44 L.Ed.2d 589, 95 S.Ct. 2031 (1975).
In recent years, this court has consistently adhered to the rule, in both civil and criminal cases, that juror misconduct is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof. See State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976); State v. Amey, 218 Kan. 369, 371-72, 544 P.2d 334 (1975); Roy v. State, 213 Kan. 30, 32, 514 P.2d 832 (1973); State v. Duncan, 3 Kan. App. 2d 271, 275, 593 P.2d 427 (1979). Juror misconduct is a broad label which has been used to describe communications with jurors from outsiders, witnesses, bailiffs, or judges; and actions by jurors jn the unauthorized viewing of premises, or reading of newspaper articles. See Annot., 9 A.L.R.3d 1275; Annot., 41 A.L.R.2d 227; and cases cited above.
On this issue the record on appeal is limited to the agreed statement of facts, and the transcript of the motion for new trial. We are satisfied the trial court did not abuse its discretion in finding the appellant failed to show substantial prejudice to his rights. No one knew the source of the threat, which the appellant denied making. Only three jurors heard about the threat prior to deliberations. The threat was not discussed until after the verdict was reached. The remaining nine jurors then heard about the threat. The fact that three jurors had heard about the threat was not discovered until after the trial. All jurors told the trial judge the threat was considered a mere rumor and did not affect their deliberations.
The appellant complains that the trial court erred in questioning the jurors as to the effect the threat had upon their deliberations. The agreed statement of facts recites “[t]hat all of the members of the jury stated that they considered the threat as a rumor and that it did not effect [sic] their decision.”
The two statutes pertinent to this question are K.S.A. 60-441, and K.S.A. 60-444. K.S.A. 60-441 states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
K.S.A. 60-444 states:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441; (b) exempt a grand juror from testifying to testimony or statements of a person appearing before the grand jury, where such testimony or statements are the subject of lawful inquiry in the action in which the juror is called to testify.”
The trial court did not violate the limitations imposed by 60-441, when the jurors were questioned about the effect of the threat upon their decision. The threat was not a matter which had been placed in evidence or a matter inhering in the verdict itself. K.S.A. 60-444 permits inquiry into extraneous matters which may have a material bearing upon the validity of the verdict.
Closely related to the legal principles just discussed is the appellant’s contention that the trial court erred in refusing to permit the appellant to ask certain questions at the evidentiary hearing. The agreed statement of facts provides:
“g) That the trial judge disallowed all other questioning on all other matters raised in the Defendant’s Motion for an evidentiary hearing. Defendant cited K.S.A. 60-444 as authority for such questioning.
“h) That in support of his request to question jurors concerning other matters contained in his motion for evidentiary hearing the Defendant proffered the following:
“1. That the jury discussed and decided that any gun that was left in a house would be empty; that the Defendant would have to take time to load the gun and that this would be sufficient to constitute the element of premeditation.
“2. That the jury determined that the testimony of Norma Lambert was not creditable and should not be used in their deliberations and determination in this matter.”
The appellant contends the discussion of the jury members concerning the loading of the gun amounts to an improper consideration of facts which are not in evidence.
The determination of the element of premeditation by the jury is a matter which inheres in the verdict. K.S.A. 60-441 prohibits exploration of the jury’s deliberations on that subject, and the trial court properly denied the appellant the right to question the jurors on this matter. Similarly the trial court properly denied the appellant the right to question jurors concerning the credibility they placed on the testimony of Norma Lambert.
It is the prerogative of a jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence. State v. Duncan, 221 Kan. 714, Syl. ¶ 1, 562 P.2d 84 (1977). Jurors have the right to use that knowledge and experience which they possess in common with men in general. State v. McNichols, 188 Kan. 582, 589, 363 P.2d 467 (1961). See PIK Grim. 51.01.
The appellant contends there was insufficient evidence of premeditation, and cites State v. Hamilton, 216 Kan. 559, 566, 534 P.2d 226 (1975), where this court stated: “As a general principle it would seem that use of a deadly weapon, standing alone, is not sufficient to establish premeditation.” In Hamilton the court stated:
“While use of a deadly weapon is not alone sufficient to infer premeditation it is one of the circumstances which may be considered in determining whether a homicide was committed with deliberation. We find this discussion set out in 1 Wharton’s Criminal Evidence, [13th Edition, § 135] pp. 226, 227:
“ ‘According to some courts, if, in addition to the use of a deadly weapon, another circumstance is shown, such as the lack of provocation, the evidence may be of such probative force as to give rise to a presumption, as opposed to a mere inference that the homicide was premeditated and deliberate, thereby casting upon the defendant the burden of going forward with appropriate evidence to explain away such presumption. According to other courts, the existence of premeditation and deliberation which will raise the homicide to murder in the first degree may not be the subject of a legal presumption, but is a matter of inference which the trier of fact may or may not see fit to draw.
“ ‘Premeditation and deliberation can be found from various circumstances, such as the nature of the weapon used, the lack of provocation, the defendant’s conduct before and after the killing . . . .’ ” 216 Kan. at 567.
See State v. Henson, 221 Kan. 635, 639-40, 562 P.2d 51 (1977).
Here it was proper for the jury to consider that the appellant’s own rifle was the murder weapon; that there were no defensive wounds on the victim; no signs of struggle or rape; and no evidence of provocation. There also was testimony the appellant had threatened to kill his wife. The jury could find from the evidence that the appellant had cleverly disposed of the weapon after its use, when he made the trip to Medicine Lodge via the Barber County State Lake, to cover up his deed.
The appellant contends the trial court erred in permitting the jury to view 23 State exhibits a second time prior to its deliberations with only the bailiff in charge to supervise the viewing. Once a case is submitted to the jury for deliberations, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire. Here, the appellant offers nothing to show that his rights were prejudiced in any way. The manner in which exhibits are handled at trial is within the trial court’s discretion, and will not be disturbed except in cases of abuse. See State v. Stiff, 148 Kan. 224, 227, 80 P.2d 1089 (1938); State v. Moore, 80 Kan. 232, Syl. ¶ 5, 102 Pac. 475 (1909).
The appellant contends the trial court erred in admitting the testimony of LoVae Blunk. Mrs. Blunk testified the appellant had threatened to kill his wife ten months earlier. The agreed statement of facts reads:
“1. That an evidentiary hearing was had concerning the admissibility of the testimony of LoVae Blunk on or about the 9th day of March, 1979 and the following are objections raised by the Defendant to such testimony and the Courts’ rulings thereon.
“a) The Defendant objected to the testimony of LoVae Blunk as hearsay,
“b) That the Defendant objected to the testimony of LoVae Blunk by reason that the same was irrelevant and immaterial because of the remoteness and time and the lack of any logical connection between the marital dispute on February 10, 1975 and the homicide on November 28, 1975.
“c) That the Defendant objected to said testimony because the same was inadmissible as it tended to be evidence of specific prior conduct or evidence of defendant’s character to prove his guilt contrary to K.S.A. 60-447.
“d) That there was little or no probative value in the testimony of LoVae Blunk and such probative value was far outweighed by the prejudice created by [sic] the Defendant.
“e) That the trial judge found the testimony of LoVae Blunk to be admissible and that the objections raised by the defendant went to the weight of the evidence, not its admissibility.”
Although Mrs. Blunk’s testimony recounted a specific instance of the appellant’s conduct, the evidence was not offered to prove a trait of the appellant’s character. In State v. Patterson, 200 Kan. 176, Syl. ¶ 2, 434 P.2d 808 (1967), the court stated:
“In a case of marital homicide, evidence of a discordant marital relationship, and of the defendant’s previous ill treatment of his wife, including his prior threats to kill her, is competent as bearing on the defendant’s motive and intent.”
See State v. Anicker, 217 Kan. 314, Syl. ¶ 1, 536 P.2d 1355 (1975).
The appellant contends the threat was too remote in time to be material or relevant. In State v. Anicker, 217 Kan. at 315-16, testimony that the defendant had assaulted and beaten the deceased in November 1968 was held relevant and admissible where the crime in question occurred seven months later in May. Here, the murder occurred on the eve of the appellant’s first wedding anniversary. Evidence of marital discord during the first months of that marriage is not so remote as to be inadmissible. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court. State v. Betts, 214 Kan. 271, Syl. ¶ 2, 519 P.2d 655 (1974). Lapse of time may not be sufficient to deprive evidence of its value, State v. Demming, 79 Kan. 526, 528, 100 Pac. 285 (1909), but goes to the weight of the evidence, which is for the jury to determine. See State v. Betts, 214 Kan. at 276; 29 Am. Jur. 2d, Evidence § 360, p. 410.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action wherein Fred M. Huffman, Jr. (defendant-appellee) was charged with the crimes of obstructing official duty (K.S.A. 21-3808) and disorderly conduct (K.S.A. 21-4101). At the close of the State’s evidence the trial court sustained the defendant’s motion to dismiss the charge of disorderly conduct on the ground K.S.A. 21-4101 was unconstitutional. After presentation of evidence by the defendant, the jury acquitted the defendant of the charge of obstructing official duty.
The State has perfected an appeal on that portion of the trial court’s decision declaring K.S.A. 21-4101 unconstitutional. Appeal is pursuant to K.S.A. 1979 Supp. 22-3601(b)(2) and 22-3602(h)(1).
Although the facts are not necessary to determine the limited question here for review, they will be briefly stated.
On March 24, 1979, Topeka police officer Charles Walker received a report of juveniles drinking and causing a disturbance at the Rockin Robin, a tavern located at 1002 North Kansas Avenue, Topeka, Shawnee County, Kansas. Sergeant Michael Blodgett and Officer Edna Armstrong also received and responded to the disturbance report. The three officers entered the tavern together, apparently with Officer Walker in the lead. Officer Walker proceeded immediately to the bar and asked the barmaid about the reported juveniles and disturbance. The barmaid informed Officer Walker there was no disturbance and that no juveniles were present.
As the officers entered the tavern, and while Officer Walker questioned the barmaid, four men at the end of the bar made several comments which offended the police officers. At first, the men made “snorting” and “oink” sounds. Someone stated, “Well, here are the pigs.” Officer Armstrong was referred to as a “female pig” and a “sow.” The officers were also called “fucking pigs.”
After Officer Walker talked with the barmaid and learned that she did not report a disturbance, Walker directed his attention to the men at the end of the bar. He approached the men, shined his flashlight on two of them, and asked if they had something they wanted to say. They made no comment. Officer Walker then demanded identification. At one point the appellee, Huffman, told Officer Walker to “shut-up.” Huffman also allegedly stated, “Fuck you, I don’t have to give it [identification] to you,” and “You’re not the fucking gestapo, you don’t have any right to do this.” Huffman did not produce his identification until after the second or third request. Officer Walker testified that at one point during the identification check he made a comment to Huffman to the effect, “Listen, fuzz face, if I want something from you, I’ll ask for it.”
Officer Walker arrested Huffman “[d]ue to his language, the fact that it was causing a turmoil and also upsetting myself and the other officers present at the time.” No juveniles were found in the tavern; Huffman was 23 years old.
As Officer Walker walked Huffman out of the tavern, Huffman slammed the tavern door against Walker. The two men scuffled on the sidewalk just outside the door. At one point Sergeant Blodgett attempted to hold on to Huffman. Officer Walker finally subdued Huffman by striking him on the head with a flashlight. Huffman’s resistance at the door, and the subsequent scuffle, formed the basis for the charge of obstructing official duty.
Count II charged the appellee with disorderly conduct, in the following words:
“On or about March 24, 1979, in the County of Shawnee and State of Kansas, FRED M. HUFFMAN, JR. did then and there unlawfully and willfully with knowledge or probable cause to believe that said acts will alarm, anger or disturb others, to-wit: Charles Walker, did use offensive, obscene or abusive language or engage in noisy conduct tending reasonably to arouse, alarm, anger or resentment in others, to-wit: Charles Walker.”
The trial court determined the disorderly conduct statute, K.S.A. 21-4101, was unconstitutionally vague and overbroad. The trial court relied on the rationale of Gooding v. Wilson, 405 U.S. 518, 31 L.Ed.2d 408, 92 S.Ct. 1103 (1972).
The State presents two related issues in its brief on appeal, stating:
“I
“THE TRIAL COURT ERRED IN DECLARING K.S.A. 21-4101, THE KANSAS DISORDERLY CONDUCT STATUTE, TO BE IN VIOLATION OF THE UNITED STATES CONSTITUTION ON THE BASIS OF THE OVER-BREADTH DOCTRINE.
“II
“EVEN IF FACIALLY OVERBROAD, K.S.A. 21-4101, SUBSECTION (c) CAN BE HELD CONSTITUTIONALLY VALID BY AUTHORITATIVELY RESTRICTING ITS APPLICATION TO NON-PROTECTED SPEECH.”
After carefully considering the controlling cases and the principles involved in the State’s appeal, we hold the trial court correctly described 21-4101 as overbroad. We use this opportunity, however, to authoritatively restrict the application of 21-4101(c) to speech which is not protected by the First Amendment.
The validity of K.S.A. 21-4101(o) and (b) is not before the court on this appeal. Furthermore, we need not determine whether the words of the appellee, Huffman, constituted non-protected speech.
K.S.A. 21-4101 reads:
“Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace:
“(a) Engaging in brawling or fighting; or
“(b) Disturbing an assembly, meeting, or procession, not unlawful in its character; or
“(c) Using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
“Disorderly conduct is a class C misdemeanor.”
This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979), and cases cited therein.
While closely related, overbreadth and vagueness are distinct concepts. An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. A vague statute leaves persons of common intelligence to guess at its meaning and whether particular conduct is a crime. See State v. Stauffer Communications, Inc., 225 Kan. 540, 545-47, 592 P.2d 891 (1979), and cases cited therein.
In Gooding v. Wilson, 405 U.S. 518, the United States Supreme Court relied principally upon the overbreadth doctrine to find a Georgia statute facially unconstitutional. Ga. Code Ann. 26-6303 provided that, “[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of. a misdemeanor.” The court found the statute was not drawn with the required narrow specificity to prohibit only a limited class of speech not protected by the First Amendment. In addition, the Georgia Supreme Court was said not to have authoritatively construed the statute to punish only a “constitutionally unprotected class of words— ‘fighting’ words— ‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Gooding, 405 U.S. at 522, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L.Ed. 1031, 62 S.Ct. 766 (1942).
Certain fundamental principles chart the permissible course for government regulation of speech. The First Amendment guarantee of freedom of speech forbids the States to punish use of language and words except in certain “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. at 571. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963). Limited categories of speech which are not protected by the First Amendment include: Fighting words — Chaplinsky v. New Hampshire, 315 U.S. 568; obscenity— Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973), and Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957); libel—Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974), and New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964); and incitement—Brandenburg v. Ohio, 395 U.S. 444, 23 L.Ed.2d 430, 89 S.Ct. 1827 (1969), and Feiner v. New York, 340 U.S. 315, 95 L.Ed. 295, 71 S.Ct. 303 (1951).
In Lewis v. City of New Orleans, 415 U.S. 130, 39 L.Ed.2d 214, 94 S.Ct. 970 (1974), the court held a Louisiana statute facially overbroad. The statute made it an unlawful breach of the peace “wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to” on-duty city police. Lewis, 415 U.S. at 132. The statute was fatally defective because the Louisiana Supreme Court had not authoritatively construed the statute’s proscription to apply only to fighting words. The United States Supreme Court held that “opprobrious language” embraced words which would not “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Lewis, 415 U.S. at 133. The Louisiana státute, like the Georgia statute in Gooding, was “susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.” Lewis, 415 U.S. at 134.
Two cases from other jurisdictions lend support to the conclusion that K.S.A. 21-4101 is facially overbroad. In Matter of Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978), a Minnesota disorderly conduct statute was found to be overbroad. The Minnesota statute was the model for K.S.A. 21-4101. See Judicial Council Comment (K.S.A. 21-4101). The Minnesota Supreme Court stated:
“Turning to the language of the statute, it is clear that, as written, 609.72, subd. 1(3), is both overly broad and vague. Since the statute punishes words alone— ‘offensive, obscene, or abusive language’ — , it must be declared unconstitutional as a violation of the First and Fourteenth Amendments unless it only proscribes the use of ‘fighting words.’ Section 609.72, subd. 1(3), however, punishes word's that merely tend to ‘arouse alarm, anger, or resentment in others’ rather than only words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ Since the statute does not satisfy the definition of ‘fighting words,’ it is unconstitutional on its face.” 263 N.W.2d at 418-19.
The Alaska Supreme Court in Marks v. City of Anchorage, 500 P.2d 644, 649 (Alaska 1972), held an Anchorage city ordinance unconstitutionally overbroad, stating:
“The Anchorage ordinance prohibits ‘threatening and violent or tumultuous behavior’, ‘unreasonable noise’, ‘abusive language’ and ‘offensively coarse utterances, gestures or displays’ when motivated by an intent to cause ‘public inconvenience, annoyance or alarm.’ Reference to Webster’s International Dictionary indicates that the ordinance thereby makes it a crime for one, with intent to pause public embarrassment, uneasiness, annoyance, discomfort or fear, to engage in conduct that is noisy, disorderly, causing or evidencing mental or emotional excitement, or, with like intent, to use language that is vulgar, indelicate, distasteful, insulting or reproachful. Neither the federal nor Alaska constitutions will permit such a broad and arbitrary interference with freedom of speech. Public life in our democracy would be robbed of its vitality and our citizens soon lose their self-confident independence of thought if such an ordinance were enforced to eliminate any mode of speech not acceptable to the most squeamish of our citizens.”
The State contends 21-4101 has been authoritatively construed to apply only to fighting words, and does not proscribe protected speech. We disagree. Our prior decisions discussing 21-4101 and its predecessor, K.S.A. 21-950 (Corrick), have not limited the application of the statute to only fighting words. As recently as State v. Polson, 225 Kan. 821, 822, 594 P.2d 235 (1979), we broadly referred to the appellant’s language as “offensive, obscene and abusive by any standard one might seek to apply.” In State v. Cleveland, 205 Kan. 426, 430, 469 P.2d 251 (1970), we determined “the language used was quite sufficient to create an incident or a riotous condition.” However, we favorably cited several cases “holding that indecent language alone may constitute a breach of the peace.”
We are cognizant of our responsibility to uphold the constitutionality of state statutes whenever possible. A statute which is facially overbroad may be authoritatively construed and restricted to cover only conduct which is not constitutionally protected, and as so construed the statute will thereafter be immune from attack on grounds of overbreadth. State v. Stauffer Communications, Inc., 225 Kan. at 547. The State reminds us the Minnesota Supreme Court in Matter of Welfare of S.L.J., 263 N.W.2d at 419, found the disorderly conduct statute overbroad, but authoritatively construed the statute to apply only to fighting words.
Rehabilitation of 21-4101 fulfills our responsibility. K.S.A. 21-4101 can withstand constitutional challenge for overbreadth when authoritatively construed to prohibit speech within the limited category of fighting words.
When narrowly construed, 21-4101 also withstands the second constitutional challenge asserted by the appellee. The appellee contends the statute is vague and indefinite on its face. Unconstitutional vagueness was the second, subordinate basis of both the holding in Gooding v. Wilson, 405 U.S. at 518, and the trial court ruling in the instant case.
The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. See State v. Meinert, 225 Kan. at 817; State v. Stauffer Communications, Inc., 225 Kan. at 546; State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
The appellee claims both the mens rea portion of 21-4101 and subsection (c) are vague and indefinite. The prefatory language of the statute includes the words “alarm, anger or disturb others.” K.S.A. 21-4101(c) prohibits “[u]sing offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.”
The appellee contends the words in 21-4101 are as vague and indefinite as the language considered in State v. Meinert, 225 Kan. at 817, “unjustifiable physical pain”; State v. Kirby, 222 Kan. at 4, “endangering of life”; and City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978), “exhibition of speed or acceleration.” The examples of vague language in the Kansas cases cited by the appellee are distinguishable. None of these cases dealt with vagueness in the context of free speech and overbreadth; nor did the cases involve rehabilitation of a statute by authoritative construction on appeal.
The appellee claims we should follow Marks v. City of Anchorage, 500 P.2d at 652-53. The Alaska Supreme Court held the Anchorage ordinance unconstitutionally vague, as well as over-broad. The mens rea portion of the Anchorage ordinance included the words “inconvenience, annoyance or alarm.” The body of the ordinance included the words “tumultuous behavior,” “unreasonable noise,” “abusive language,” and “offensively coarse utterances, gestures or displays.”. Marks v. City of Anchorage, 500 P.2d at 645. See also State v. Echelbarger, 54 Ohio Misc. 29, 376 N.E.2d 981 (1977). The Alaska and Ohio cases are also distinguishable. The challenged statutes were not narrowly construed to apply only to fighting words.
Narrow construction of 21-4101, to apply to fighting words, removes any possible vagueness residing in the mens rea portion of the statute or in 21-4101(c). Persons of common intelligence need not guess at the meaning of the words “alarm, anger or disturb,” when used in conjunction with fighting words.
The State’s appeal is sustained.
Prager, J., concurs in the result. | [
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ON this 19th day of May, 1980, the petition of the respondent, John Richard Cochran, for reinstatement to the practice of law in the State of Kansas comes before the Court for consideration. The Court, being fully advised, finds:
1. That John Richard Cochran was duly admitted to the practice of law in the State of Kansas on or about February 28, 1957.
2. On the 26th day of September, 1973, respondent voluntarily surrendered his certificate to practice law and upon the 3rd day of October, 1973, this court entered its order directing the Clerk to strike the name of John Richard Cochran from the rolls of attorneys admitted to practice law in Kansas.
3. On the 25th day of June, 1979, respondent filed his petition with this Court seeking reinstatement of his privileges to practice law in Kansas.
4. The petition of the respondent was referred to the disciplinary administrator and the Board for Discipline of Attorneys for investigation and recommendations.
5. A hearing panel of the Board of Discipline filed its report and recommendations with this Court on November 27, 1979, recommending reinstatement of John Richard Cochran to the practice of law upon the completion of a bar review course given by Kansas University Law School or Washburn University Law School.
6. On February 26, 1980, respondent filed proof of completion of a bar review course conducted at the University of Kansas January 25, 1980 through February 14, 1980.
7. After due consideration, a majority of the court approves and accepts the report of the Board of Admissions and directs the reinstatement of John Richard Cochran to the active practice of law in the State of Kansas.
IT IS BY THE COURT ORDERED that John Richard Cochran, upon the filing of his oath with the Clerk of the Appellate Courts and the payment of the registration fee required by Rule 208, be and he is hereby restored to the active practice of law in the State of Kansas.
IT IS FURTHER BY THE COURT ORDERED that the Clerk of the Appellate Courts shall restore the name of John Richard Cochran to the rolls of attorneys admitted to practice law in the State of Kansas and that the Clerk shall issue John Richard Cochran a new certificate to practice law.
IT IS FURTHER BY THE COURT ORDERED that the costs of this proceeding be assessed to the respondent, John Richard Cochran. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Mark Dice, a teacher for U.S.D. No. 461, from a district court order affirming the Board of Edu cation’s decision not to renew his teaching contract for the 1978-1979 school year.
Mark Dice has been employed as an instrumental music instructor for Heller Elementary School, Northlawn Elementary School, and the Junior and Senior High Schools of Neodesha since 1974. His contract had been renewed each year until March 6, 1978, when the Board voted to not renew his teaching contract for the 1978-79 school year. Appellant was notified of the Board’s decision and was requested to resign. On March 15, 1978, appellant submitted his resignation and requested a hearing. On March 24, 1978, Dice, by letter, requested that his resignation be revoked. The Board granted Dice’s request. The time restrictions imposed by K.S.A. 1977 Supp. 72-5437 had passed and the parties agreed to set their own time schedule. The Board was to furnish its notice and reasons for nonrenewal by April 20, 1978. Those reasons were submitted to Dice in a letter dated April 12,1978, as follows:
“Mr. Mark Dice
Instrumental Music Director
Neodesha USD # 461
RFD #2
Neodesha, Kansas 66757
“Dear Mr. Dice:
“The Neodesha USD #461 Board of Education, meeting in a regularly scheduled session, on April 10, 1978, voted not to renew your contract for teaching for the 1978-79 school year. This notice is being given you as directed by the Board.
“Pursuant to the ‘Agreement’ of the parties (Board & Teacher) and as provided by KSA 72-5437 the reasons for the decision of non-renewal are given in writing as follows, to-wit:
Lack of interest in school matters other than your own school work and activities.
Lack of classroom supervision.
Failure to attend designated teachers meetings.
Insufficient attention to proper teacher attire at school functions.
Not always being on time or present at beginning of class and other activities. Insufficient control of outside school activities.
Lack of public appearances of any solo or small ensembles.
More than normal number of parent complaints.
Unteacher-like conduct with and concerning students.
Insufficient preparation for 1977 band competition and with no competition in 1978.
Not following and failure to follow directions of school officials, in effect, disrespect or insubordination applicable to numerous items including those of not wearing a band uniform, failure to use buses for activities, not promptly securing your teacher certification, etc.
“Pursuant to KSA 72-5438 you may have this matter heard by a hearing committee upon written notice properly filed with the Board of Education within fifteen days from the date of this notice of nonrenewal, and you should designate therein one hearing committee member.
“Yours very truly,
Is/ Edwin G. Lyon
“Edwin G. Lyon,
Superintendent of Schools”
Appellant requested a hearing on April 25, 1978, pursuant to K.S.A. 1977 Supp. 72-5438. The hearing committee was formed pursuant to that statute and a hearing was held on June 26 and 27, 1978. The committee recommended appellant’s “contract be renewed for one probationary year only (1978-1979) if Mr. Dice will agree to correct the deficiencies listed in Items 3, 4, 5, 6, 7 and 10.”
The committee’s recommendation was submitted to the members of the Board of Education who, nonetheless, notified Dice by letter of August 1, 1978, that they had decided not to renew his contract for the 1978-1979 school year. The Board’s decision was appealed to the district court where it was affirmed. This appeal followed.
Appellant’s first contention is that he was not given a hearing at a meaningful time and was thereby denied due process. He argues K.S.A. 1977 Supp., 72-5437 contemplates that prior to any official action with regard to the termination of a teacher’s contract, the Board must first give the teacher notice of its intent to nonrenew and afford the teacher a hearing to present opposition. Appellant claims that procedure was not followed in the case at bar because, he maintains, the Board’s action on March 6, 1978, was a final decision not to renew and was not an “intention” to nonrenew.
The purpose of notice of nonrenewal is to advise the teacher of Board action early enough in the year to afford the teacher a reasonable opportunity to find other employment. The notice of intention to nonrenew is final action only if the teacher permits it to become so by failing to request a due process hearing. In Schulze v. Board of Education, 221 Kan. 351, 353-354, 559 P.2d 367 (1977), this court stated:
“The right to hire, fire, and discipline employees is within the authority granted to a school board by statute. (K.S.A. 72-8205.) The board, however, must provide due process. (Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339, and cases cited therein.) The essential elements of due process of law are notice and an opportunity to be heard, and to defend in an orderly proceeding adapted to the nature of the case.”
Appellant relies heavily on Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339 (1975), in support of his argument that he was denied due process because he was denied a hearing before the Board voted its intention to nonrenew his contract. In that case, Charles Wertz was notified by the superintendent that he was suspended from further teaching, after having been previously requested to improve his class discipline problems. The notice of suspension gave Wertz 30 days to request a hearing. The following day, the Board met and voted to discharge Wertz. Wertz was informed of that decision and given 30 days to request a hearing. Wertz had not been present and had no notice of the meeting during which the Board voted to discharge him. Wertz brought suit for reinstatement and damages. We held Wertz was entitled to a hearing prior to discharge and under the facts of that case a subsequent hearing would not have cured the failure to provide such a hearing.
Wertz is not authority for appellant’s position. The Board voted to discharge the teacher during the term of his contract without a hearing. Here, Dice is being nonrenewed at the end of his contract after having been given a proper hearing.
Appellant also relies on the cases of Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895 (D. Kan. 1977), and Wagner v. Little Rock School District, 373 F. Supp. 876 (E.D. Ark. 1973) in support of this issue.
In Bogart, the teacher was convicted of possession of marijuana in connection with his son’s arrest for drug violations. The Board voted to dismiss him and sent a letter to the teacher stating his contract was terminated in mid-year “for conduct unbecoming an instructor, which conduct resulted in your conviction in the Lincoln County District Court of the offense of possession of marijuana.” Bogart at 900. The teacher was later acquitted of the charges and he notified the Board of the court’s action, demanding reinstatement. The Board did not reinstate the teacher. The • teacher was given no opportunity to controvert the dismissal. He brought an action against the Board for reinstatement and damages alleging he was deprived of property and liberty interests arbitrarily, capriciously and without due process of law. The court held due process requires a hearing before an impartial tribunal. Procedural due process requires notice of hearing and “a method of decision which does not offend the concept of fundamental fairness.” Bogart at 905. The court also stated at 906:
“Substantive due process requires the decision-maker to be presented with and to consider a minimal amount of credible evidence sufficient to support a legal basis for its ultimate action. Again, what constitutes sufficient evidence may vary from situation to situation, although it need be only enough to prevent the decision from being totally arbitrary and capricious in the case of administrative action.”
The court held the plaintiff’s due process rights were “seriously affronted.” Bogart at 906. In addition, the court held the defendant’s actions were “so factually baseless as to amount to wanton, oppressive and bad faith conduct.”
In Wagner v. Little Rock School District, 373 F. Supp. 876, a black elementary school teacher was terminated during the contract period without written notice, specification of charges or a hearing. Wagner had taught for 22 years at an all-black elementary school and beginning with the 1971-1972 school year, was involuntarily transferred; “she began to receive regular and sustained criticism of her ability as a teacher in vague and generalized language.” Wagner at 878. On January 28, 1972, to be exact, she was orally informed .by the assistant superintendent of the Little Rock Public Schools that her employment would terminate as of February 1, 1972. She sued, alleging a denial of her Fourteenth Amendment rights to procedural due process. Defendant Board alleged Wagner received written notice of specific teaching deficiencies and that a conference had been held with her supervisor during which Wagner was given the opportunity to discuss the teaching deficiencies but she declined. It alleged, therefore, that she was given written notice and was afforded an opportunity to be heard. The trial court held the termination was not motivated by racial reasons and affirmed the Board’s actions. The question on appeal was whether Wagner was given her due process rights. Were the various communications and meetings between the parties and an offer of an appearance before the Board sufficient to meet constitutional standards?
The court found the meetings during which plaintiff was informed of the deficiencies of her work were insufficient to meet the requirement of due process which is “the opportunity to be heard, ‘at a meaningful time and in a meaningful manner.’ ” Wagner at 881.
The court continued at page 881:
“A constitutionally adequate hearing must be held before a neutral hearing officer and the charged party be given reasonable notice prior to the hearing, not only of the particulars of the alleged misconduct but also of the possible adverse consequences of the hearing.”
The court also held that the fact the Board gave plaintiff the opportunity to meet with them after the termination did not cure any procedural defect. As stated at page 882:
“The individual who is the object of the proposed governmental action should not have to bear the handicap of overcoming the inertia of the status quo; he should not bear the burden of persuading the decision-maker to reverse a fait accompli unless the proponent of the action can show specific, valid, and appropriate reasons for precipitous, pre-hearing action.”
The court held the absence of a hearing was improper and violated Mrs. Wagner’s rights of procedural due process.
Neither Bogart nor Wagner apply to this case. In those cases neither teacher was given a hearing prior to the Board’s termination of the teacher’s employment. In addition, both cases dealt with cessation of employment during a teaching contract, rather than nonrenewal at year’s end. Dice was given notice and an opportunity to be heard at a meaningful time and in a meaningful manner. He was given a hearing during which he was allowed to present a defense to the proposed Board action. Constitutional due process does not require two hearings be given. Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970).
Moreover, we find the statutory procedural process was followed. The appropriate statutes are K.S.A. 1977 Supp. 72-5437 and K.S.A. 1978 Supp. 72-5438. K.S.A. 1977 Supp. 72-5437 states:
“Continuation of teachers’ contracts; exceptions; notice of termination or nonrenewal; change of terms. All contracts of employment of teachers, as defined in K.S.A. 1976 Supp. 72-5436, and amendments thereto, except contracts entered into under the provisions of K.S.A. 72-5412a, shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as hereinafter provided. Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed, and written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before the fifteenth day of March. A teacher shall give written notice to the board on or before the fifteenth day of April if the teacher does not desire continuation of said contract. Terms of a contract may be changed at any time by mutual consent of both the teacher and the board.”
The statute was amended in 1978 to change the dates of the notice from March 15 and April 15 to April 15 and May 15. The procedure to be followed is found in K.S.A. 1978 Supp. 72-5438:
“Contents of notice; hearing; designation of hearing committee members; appointment by district judge, when. Whenever a teacher is given written notice of intention to not renew the teacher’s contract as provided in K.S.A. 1976 Supp. 72-5437, or whenever such a teacher is terminated before the end of his or her contract term, the teacher shall be given a written notice of the proposed nonrenewal or termination including (1) a statement of the reasons for the proposed nonrenewal or termination, and (2) a statement that the teacher may have the matter heard by a hearing committee, upon written notice filed with the clerk of the board of education or the board of control, or the secretary of the board of trustees within fifteen (15) days from the date of such notice of nonrenewal or termination that he or she desires to be heard and designating therein one hearing committee member. Upon the filing of any such notice, the board shall, within fifteen (15) days thereafter, designate one hearing committee member. The two hearing committee members shall designate a third hearing committee member who shall be the chairman and who shall in all cases be a resident of the state of Kansas. In the event that the two hearing committee members are unable to agree upon a third hearing committee member within five (5) days after the designation of the second hearing committee member, a district judge of the home county of the school district, area vocational-technical school or community junior college shall appoint the third hearing committee member upon application of the teacher or either of the first two hearing committee members.”
Clearly, the statutory requirements of notice and an opportunity to be heard were followed in this case. Dice was given notice and ■an opportunity to be heard, and the Board was free to accept or reject the recommendation of the hearing committee. Our procedure comports with that set forth in numerous jurisdictions. See generally Annot., 92 A.L.R.2d 751.
We note the result in our recent case of Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980). The teacher received a notice of nonrenewal pursuant to the terms of K.S.A. 1977 Supp. 72-5437. The teacher requested a hearing and the committee found insufficient evidence to terminate her contract. The Board considered the evidence and the recommendation of the hearing committee and decided to follow its decision to terminate the teacher. As in the present case, the Board in Gillett made no findings of fact and presented no reason in writing for its rejection of the hearing committee’s recommendation. The due process procedure was thoroughly discussed in that case and we did not find a teacher is entitled to two hearings under our statutes. As stated in Gillett at pages 77 and 78:
“[T]he purpose of the due process hearing is to inquire into the reasons for the dismissal or nonrenewal of the teacher and to determine whether or not the evidence presented establishes good cause within the spirit and purpose of the teacher tenure statutes.”
“The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice. The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given. If it does not, or if the hearing was a mere sham, then justification for the board of education’s action is lacking.”
The requirements of the due process statutes have been met as well as constitutional guarantees of due process. This issue has no merit.
Appellant claims he was not given a fair and impartial decision by the Board and the Board exhibited bias against him. In addition, he claims the application of K.S.A. 1979 Supp. 72-5436 et seq. to the facts of this situation creates an unconstitutional result not contemplated by the legislature. Appellant states due process requires that hearings be before a fair and impartial tribunal. He cites the cases of Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972), and Withrow v. Larkin, 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456 (1975), as support for his interpretation of a proper due process hearing.
In Morrissey v. Brewer the U.S. Supreme Court considered the requirements for due process hearings regarding determinations of a parole violation and the revoking of parole. The court held in order to obtain the greatest objectivity an uninvolved person should make the determination that a reasonable ground exists for revocation of parole.
In Withrow v. Larkin, a doctor sued members of the Medical Examining Board seeking an injunction against the enforcement of suspension statutes. The Board had held an investigative hearing that was attended by the doctor and his attorney. The doctor was invited to explain any of the evidence presented but was not allowed to cross-examine any of the witnesses that testified. A “contested hearing” was to be held later on at which time the Board would determine whether the doctor’s license would be temporarily suspended. The doctor moved for a restraining order to block the proposed hearing and a district court held the Board’s actions in investigating charges, presenting and ruling on evidence and imposing punishment were in violation of the doctor’s due process rights. The Board did not hold the contested hearing but did hold a “final investigative session.” The Board found the doctor had engaged in specified conduct proscribed by the statute and found probable cause for revoking the doctor’s license.
The district court found the Board could not temporarily suspend the doctor’s license at its own contested hearing on charges evolving from its own investigation. That court based its decision on the absence of “an independent, neutral and detached decision maker . . .” (Withrow at 42) and held the state statute authorizing the hearing procedure was unenforceable.
The U.S. Supreme Court held that combining the investigatory and adjudicatory functions of an administrative hearing were not a denial of due process in that case; however, appellant herein relies on the court’s statement at page 58:
“Clearly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised.”
Applying these cases to the present situation, appellant argues the Kansas due process procedure, properly applied, requires a statutory hearing committee to serve as a fact finder, as discussed in Morrissey. Prior to any action by the Board regarding nonrenewal, this committee would determine whether the teacher had committed infractions sufficiently improper to possibly result in a nonrenewal of his contract. The Board would then apply the committee’s findings and determine whether it wished to renew the contract.
It is clear neither case is applicable to this situation. Morrissey proposed a rather elaborate and detailed procedure to determine whether a parolee’s liberty should be revoked because of possible violations of his parole. The interest to be protected is substantially different. In the case of a parolee it is his continued liberty, the termination of which “inflicts a ‘grievous loss’ . . . .” Morrissey at 482. That procedure is inapplicable to this situation. Dice received a fair and impartial review of his case before the hearing committee. That committee heard testimony from the Board, Dice and other witnesses and recommended he be renewed for one probationary year. The Board is empowered by law to accept or reject the decision of the hearing committee. K.S.A. 1979 Supp. 72-5443. The record reveals the hearing was fair and impartial.
Appellant alleges the Board exhibited bias toward him when several members testified in support of the Board’s decision to nonrenew Dice. This argument is clearly erroneous. It is necessary for the Board members to explain the reason for their decision. Additionally, the Board is authorized by law to “testify in its behalf and to give reasons for its actions, rulings or policies . . . .” K.S.A. 1979 Supp. 72-5439(d).
Appellant concedes the due process procedure found in K.S.A. 1979 Supp. 72-5436 et seq. is constitutional yet alleges the application of the statutes creates an unconstitutional result in this particular situation. Appellant offers no authority for this allegation and simply states:
“By participating in the hearing as witnesses, by holding a separate hearing among themselves in executive session to vote the initial non-renewal, and by the general animosity the Board demonstrated towards Appellant, it made itself a ‘biased body’ which rendered the decision to non-renew Appellant, a violation of K.S.A. 1978 Supp. 72-5439(f).”
We have found no evidence of bias on the part of the Board against Dice. He received a fair and impartial hearing and due process was accorded. The statutes were followed to the letter and we cannot find their operation produced an unconstitutional result. The argument is without merit.
Finally, appellant contends the Board’s action was arbitrary, capricious and not supported by substantial evidence. This court’s scope of review is stated in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 2, 436 P.2d 828 (1968):
“In reviewing a district court’s judgment . . . this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.”
See Gillett v. U.S.D. No. 276, 227 Kan. 71, 79; Lyon County v. Iowa Beef Processors, Inc., 224 Kan. 239, 249, 580 P.2d 1300 (1978); Kansas Ass’n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 511, 544 P.2d 1389 (1976); Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 553, 539 P.2d 1 (1975); Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 419, 581 P.2d 817, rev. denied 225 Kan. 843 (1978).
The district court’s review of an administrative decision is governed by Brinson v. School District, 223 Kan. 465, Syl. ¶ 6, 576 P.2d 602 (1978), where we stated:
“In reviewing a decision of an administrative agency or tribunal under authority of K.S.A. 1974 Supp. 60-2101(a) a district court may not substitute its judgment for that of the administrative agency or tribunal; it is limited to deciding whether: (1) The agency or tribunal acted fraudulently, arbitrarily or capriciously; (2) the administrative order is substantially supported by evidence; and (3) the tribunal’s action was within the scope of its authority.”
Arbitrary, oppressive or capricious conduct is shown “where an order of an administrative tribunal is based upon findings which are not substantially supported by evidence in the record.” Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 212 Kan. 137, Syl. ¶ 3, 510 P.2d 160 (1973). Substantial evidence is defined in Brinson at page 473 “as that which possesses relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.”
Let us examine the evidence to determine if the Board’s decision is supported by substantial evidence. Members of the Board testified that Dice refused to wear his band director’s uniform and substituted a “T” shirt with letters across the front inscribed “band director.” Mr. Dice was informed of Board dissatisfaction with this practice on numerous occasions but the admonitions were ignored. This evidence is unrefuted. There is undisputed evidence that appellant used grades as a disciplining technique and was informed by the principal of the Board’s dissatisfaction with the practice. Dice promised to correct this mistake. On one occasion appellant took a group of grade school children to Parsons in a school bus and drove back to Neodesha leaving four of the children in Parsons to find their own way home. Appellant admitted this evidence was true but excused himself by saying the children failed to meet the bus at the appointed time. The evidence was also undisputed that the high school band ratings at music festivals had dropped from I’s and II’s to Ill’s and IV’s during appellant’s tenure as band teacher. Finally, the evidence is undisputed that appellant was not punctual in his appointments, failed to check in at the office each morning and missed faculty meetings on many occasions. All of these matters were brought to appellant’s attention in evaluation sessions and reports made by the school principals.
There is substantial evidence to support the actions of the Board. We find its decision was made within the scope of its authority and was not arbitrary or capricious, fraudulent or unreasonable. Gillett v. U.S.D. No. 276, 227 Kan. 71.
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The opinion of the court was delivered by
Fromme, J.:
This is the third chapter in continuing litigation arising from conflicting ideas on how to contain spiraling hospital service costs in Kansas. The first chapter was written in Blue Cross & Blue Shield v. Bell, 227 Kan. 426, 607 P.2d 498 (1980), where it was held that Fletcher Bell, Commissioner of Insurance of Kansas, had the statutory duty and authority under K.S.A. 40-1806 and 40-1906 to review rate filings of Blue Cross and Blue Shield, and to consider, among other things, the trend projections and reasonableness of projected loss experience used in the rate filings. In order for him to approve rate filings as being reasonable the Commissioner insisted that Blue Cross enter into prospective cost review contracts with hospitals in Kansas, which contracts appeared to the Commissioner to provide some control over spiraling hospital service costs. The contracts which were to be replaced were described as the 1970 retrospective contracts. Under this form of contract member hospitals are reimbursed at the end of each year to the extent of one hundred four percent (104%) of allowable costs of furnishing hospital services.
The second chapter was written in Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, 608 P.2d 890 (1980). In Augusta a provision for termination contained in the 1970 retrospective contracts was construed by this court and it was determined that Blue Cross had exercised the right of termination as required by the contract and twenty-one hospitals, including Augusta Medical Complex, Inc., had been terminated and were no longer member hospitals of Blue Cross of Kansas, Inc., unless they signed new prospective rate review contracts.
The present appeal is the third chapter and presents a single, limited question. Did the trial court err in granting a temporary injunction pending a trial of the case on the merits?
This action was commenced by Comanche County Hospital and others seeking a declaratory judgment as to the rights of the parties under the 1970 retrospective contracts entered into between the individual hospitals and Blue Cross of Kansas, Inc. The hospitals are seeking specific performance of the 1970 retrospective contracts. Blue Cross is contending the 1970 retrospective contracts are no longer in effect.
The controversy among these parties arises a little differently than did the controversy in Augusta. Here the hospitals did sign the 1978 prospective rate review contracts. However, it was conceded below at the hearing on the temporary injunction that 75% of the member hospitals with 75% of the hospital beds had not signed the 1978 contract. The 1970 contracts of these hospitals contained the identical provision for replacement contracts which was discussed in the Augusta case. The provision reads:
“3. This agreement may be modified or may be replaced with a new agreement when the modification or the new agreement is approved by at least 75% of the Member Hospitals in the Kansas Blue Cross service area representing at least 75% of the beds and approved by the Blue Cross Board of Directors.”
The pleadings and evidence introduced at the hearing to obtain the temporary injunction clearly indicate that in the present case Blue Cross did not serve or attempt to serve a notice of termination as provided for in the 1970 retrospective agreement, which termination provision reads:
“2. This agreement may be terminated by either party on prior written notice to the other, and in the event of such termination the obligations of both parties shall continue under this agreement until the expiration of a period of six months following the first of the month after notice of termination is given. This agreement will automatically be terminated at the time the Hospital changes ownership or leasing agreement for total operation.”
The present controversy centers around letters from Blue Cross that indicate the 1978 contracts were signed by the hospitals and in force, that the hospitals have notified Blue Cross they did not consider themselves bound by and would not comply with the 1978 contracts, and that such refusal to comply was considered by Blue Cross as a breach of contract which terminated the hospitals’ membership status with the Blue Cross plan.
During the pendency of the present declaratory judgment action Blue Cross advised these hospitals that since they were no longer member hospitals Blue Cross felt an obligation to notify Blue Cross subscribers that these particular hospitals were no longer considered to be member hospitals. Under the subscribers’ Blue Cross policies the subscribers were only entitled to reimbursement for 80% of hospital service costs incurred at nonmember hospitals. With the controversy in this particular posture the hospitals applied for and obtained the temporary injunction against further action by Blue Cross, pending a final determination of the issues in this case.
As previously stated the issue presented in this appeal is a narrow one and concerns only the trial court’s action in granting the temporary injunction.
The purpose of a temporary injunction is not to determine any controverted right, but merely to prevent a threatened act which might perpetrate an injury, lessen the value of a claimed right or cause total loss of a claimed right pending final determination of the controversy between the parties. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. A temporary injunction merely preserves the status quo until a final determination of a controversy can be made. In re Sharp, 87 Kan. 504, 124 Pac. 532 (1912); 61 A.L.R. 925; 42 Am. Jur. 2d, Injunctions § 13, pp. 740, 741.
In Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. at 473, it is stated:
“It is well established that a trial court is vested with a large measure of discretion in granting a temporary injunction, and that appellate courts will not interfere absent a manifest abuse of discretion. [Citations omitted.] In order to prevail on this appeal, Blue Cross has the burden of showing that the trial court clearly abused its discretion in granting the temporary injunction.”
At the hearing on the temporary injunction it was orally stipulated by the parties that if Blue Cross terminated the membership status of the hospitals and notified the subscribers of the non-membership of the hospitals, such action would have the following effects:
“Possible loss of revenues because they would be reimbursed by Blue Cross at the rate of 80 percent of charges instead of 100 percent of the allowable cost plus 4 percent. B — Possible loss of patients who are Blue Cross subscribers wanting to obtain services where they would be reimbursed 100 percent of charges less their deductible. C — Possible difficulty in collecting the 20 percent from subscribers or patients. D — Possible loss of the staff doctors wanting to place patients in the hospital where patients will receive 100 percent coverage of charges. E — Possible failure to obtain assignments from subscribers from Blue Cross to reimburse hospitals directly. F — Possible delay in reimbursement of Blue Cross will cause cash-flow problems.”
In reviewing the grant of a preliminary injunction the appellate court should examine the record only to determine if there were any reasonable grounds for the action of the court below; if there were the grant should be affirmed. Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. at 473, and cases therein cited.
It is apparent under the facts and circumstances, which include the stipulated effects of placing these hospitals in a nonmember status with Blue Cross, the granting of the temporary injunction was proper.
The parties to this appeal have briefed and argued many of the issues to be determined by the trial court on final determination of this declaratory judgment action. These issues will not now be addressed. It was agreed that the single issue properly before this court concerns the propriety of issuing the temporary injunction. We hold it was proper to issue the same and the judgment is affirmed.
Herd, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
The plaintiff, R. D. Andersen Construction Co., Inc., appeals from the final order of the Shawnee district court, vacating a temporary restraining order and denying the injunctive relief plaintiff sought. The primary issue is whether a city may specify, in its plans and specifications for a public building project, wage rates in excess of “the current rate of per diem wages” required by K.S.A. 44-201.
The facts are brief. The City of Topeka decided to build a new structure to house and exhibit apes at its Gage Park Zoo. Plans and specifications were prepared and approved, and advertisements were run soliciting bids on the project, appropriately labeled “Discovering Apes.”
The specifications provide:
“The contractor shall pay to all laborers and mechanics employed in the development of the project not less than the wages prevailing in the locality of the project, as predetermined by the Secretary of Labor of the United States pursuant to the Davis-Bacon Act. Current applicable wage rates are included herein and consist of nine sheets numbered 4814, 4815, 4816, 4817, 20655, 35823, 61187, 6861 and 8471. Contractors shall verify wages or salaries not specifically listed.”
The specifications incorporate by reference the Standard Technical Specifications and General Clauses for Street, Sidewalk, Sewers and Mise.. Construction manual of the City of Topeka, dated August, 1977, which states:
“ ‘Current Rate of Per Diem Wages’ is defined as the rate of wage paid in the City of Topeka to the greater number of workmen, laborers or mechanics in the same trade, occupation, or work of a similar nature. For the purposes of this sub-section, the current rate of per diem wages shall be defined as and synonymous with required wages and fringe benefits for each job classification on federal and federally assisted construction projects as determined by the Secretary of Labor of the United States Government in the area wage determination decisions for the State of Kansas which are current and effective, the date the contract is executed. Changes in published area wage decisions appear in the Federal Register approximately every 120 days. It shall be the responsibility of the contractor to ascertain and pay those prevailing wage rates and fringe benefits for each pertinent employee classification in order to be in compliance with this sub-paragraph. Job classifications shall be strictly adhered to.”
Before the bids were opened, plaintiff filed its petition in this action in Shawnee District Court seeking a temporary restraining order and both temporary and permanent injunctions to enjoin the City from letting any contract for construction of the “Discovering Apes” project at the zoo until the specifications are changed and the job readvertised. Plaintiff alleged that the specifications fail to comply with the Kansas public project minimum wage law, K.S.A. 44-201, which provides:
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter defined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation, or work shall be the current rate. The ‘locality’ for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality.
“Eight hours shall constitute a day’s work .... Laborers or other persons so employed, working to exceed eight hours per calendar day, shall be paid on the basis of eight hours constituting a day’s work. Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed.
“That the contracts hereafter made by or on behalf of the state of Kansas or by or on behalf of any county, city, township or other municipality of said state with any corporation, person or persons which may involve the employment of laborers, workmen or mechanics, shall . . . contain a provision that each laborer, workman or mechanic employed by such contractor, subcontractor or other person about or upon such public work shall be paid the wages herein provided . . . .”
Plaintiff also contended that to accept bids in accordance with the plans and specifications, which specified Davis-Bacon wages, would contravene K.S.A. 13-1017 which requires cities of the first class to advertise for sealed bids for all public improvement projects for which the estimated cost exceeds $2000, and to award the contract “to the lowest responsible bidder” whose bid is less than the estimate.
A temporary restraining order was entered by the trial court on May 22, 1979, prohibiting the City from letting or entering into a contract based on the “plans and specifications which are in contravention of K.S.A. 44-201.” Thereafter the Topeka Building and Construction Trades Council was granted leave to intervene in the action. There being no fact issues, the matter was submitted to the court on briefs of the parties and several amici curiae. On June 25, 1979, the trial court filed its memorandum and journal entry. It held that the City did not contravene K.S.A. 44-201 by including the Davis-Bacon wage scale in its specifica tions, and that the City did not violate K.S.A. 13-1017 by removing the cost of labor as an element of competitive bidding. The court dissolved the temporary restraining order and denied injunctive relief. Finally, it held that the Trades Council was a “labor organization” as that term is used in K.S.A. 44-811, and it sustained the intervention of the Trades Council in this action under both K.S.A. 60-224(o) and (b).
It is undisputed that Davis-Bacon wages are somewhat higher than “the rate of wage paid in the locality,” computed under K.S.A. 44-201. Plaintiff equates Davis-Bacon wages with union wages. Plaintiff “is not bound by any collective bargaining agreement” and “pays its employees for the work they perform and in accordance with applicable wages laws.” Plaintiff states that it pays its employees more than K.S.A. 44-201 wages but less than Davis-Bacon wages.
The Davis-Bacon Act, ch. 411, §§ 1-7, 46 Stat. 1494 (1931), as amended (codified at 40 U.S.C. § 276a to 276a-7 [1976]), requires the Secretary of Labor to determine the minimum wages to be paid laborers and mechanics employed by contractors on federal or federally funded construction projects. Under the published regulations, 29 C.F.R. § 1.1 et seq. (1979), the Secretary compiles wage rate information, determines the prevailing wage scales, and publishes them periodically in the Federal Register. “Wages,” “scale of wages,” “wage rates,” “minimum wages,” and “prevailing wages” are required by 40 U.S.C. § 276a to include not only the basic hourly rate of pay but also fringe benefits.
Davis-Bacon wages must be paid by all contractors on state and local construction projects when any federal financial assistance is utilized. 42 U.S.C. § 6708. Though many municipal projects are federally funded, this one is not; no federal funds are involved in the “Discovering Apes” project.
Does K.S.A. 44-201 prohibit the City from specifying wage rates and scales in advance, and including them in the specifications and in the contract? Plaintiff contends that it does, and that we so held in Andersen Constr. Co. v. Weltmer, 224 Kan. 191, 577 P.2d 1197 (1978), an earlier case brought by this plaintiff.
In Weltmer, plaintiff sought by mandamus to compel the Secretary of Administration to open bids submitted for construction of a state building. Bids had been submitted upon specifications requiring only that wages paid conform to K.S.A. 44-201 which requires the contractor to pay its employees the “current rate of per diem wages” as therein defined; no specific wage scales were included in the specifications. Prior to the opening of bids, the then Attorney General advised the Secretary that the specifications did not comply with 44-201 because specific wage data were not set forth. We found for the plaintiff and issued the writ, holding the Attorney General’s interpretation “which would require the specifications to include the current rate of per diem wages for each class of workmen” to be “an erroneous and improper expansion of the statute beyond its clear meaning, import, and intent.” 224 Kan. at 194. (Emphasis supplied.) The clear holding of Weltmer is that the statute does not mandate the inclusion of specific wage rates in contract specifications. It does not answer the issue here before us: May the City, if it elects to do so, include wage rates in the specifications?
The first paragraph of K.S.A. 44-201 defines “the current rate of per diem wages.” The last sentence of the second paragraph of the statute states that “[n]ot less than the current rate of per diem wages . . . shall be paid . . . .” (Emphasis supplied.) The last paragraph mandates that all contracts for public works in this state contain a provision that “each laborer . . . shall be paid the wages herein provided.”
The statute sets a floor below which wages may not fall. The “wages herein provided” are “[n]ot less than the current rate of per diem wages . . . .” The statute does not prohibit either the requirement or the payment of wages in excess of the “current rate of per diem wages.”
Plaintiff challenges the City’s use of Davis-Bacon wages on the further ground that Davis-Bacon wages are calculated in a different locality or base area than that'provided by K.S.A. 44-201. The City of Topeka is the base area for calculation under the Kansas statute while “the city, town, village, or other civil subdivision of the State, in which the work is to be performed” is the base area under 40 U.S.C. § 276a.
Further, plaintiff complains that the state statute fixes the rate at “the rate of wage paid in the locality ... to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature.” Davis-Bacon, on the other hand, requires the Secretary of Labor to determine the “prevailing” wage, and the regulations provide that this shall be the wage paid to a majority, or if no majority then to the greater number if it constitutes 30% of those employed, and if less than 30% receive the same wage, then the average rate. 29 C.F.R. § 1.2 (a) (1), (2) and (3).
Regardless of the base area or the manner in which Davis-Bacon wages are computed, there is no claim or contention that the Davis-Bacon rate is less than the current rate of per diem wages computed pursuant to K.S.A. 44-201. The City is not attempting to prescribe wages lower than those prescribed by Kansas statute. We perceive no violation of the statute.
Another point of attack by plaintiff is that while the Kansas statute appears to speak only to effective hourly or daily wage rates, Davis-Bacon wages represent union wages plus union fringe benefits. K.S.A. 44-201 does appear to contemplate wages as the hourly rate of pay. Fringe benefits — hospital and medical plans, pensions, and the like — are not mentioned in the Kansas statute nor have they been considered in our cases. Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960); State v. Blaser, 138 Kan. 447, 26 P.2d 593 (1933); State, ex rel., v. Construction Co., 99 Kan. 838, 162 Pac. 1175 (1917). The Davis-Bacon Act, in contrast, specifically includes fringe benefits. 40 U.S.C. § 276a (b). That act further provides that a contractor obligated to make payment of the prevailing wage as determined by the Secretary of Labor may discharge that obligation by the making of payments in cash, or alternatively, by making irrevocable contributions to a trustee, by assuming an enforceable commitment to bear the cost of the fringe benefits, or by any combination thereof so long as any cash payments, contributions and assumptions total not less than the predetermined prevailing wages.
Whether wages or wages-plus-fringes are considered, the total amount thereof constitutes remuneration to the employee for services performed. Again, there is no contention by plaintiff that the Davis-Bacon scale is by any measure or comparison less than that mandated as a floor by Kansas statute. The possibility of the contractor paying less than the wages prescribed by our statute is precluded by specific requirement in the City’s Standard Technical Specifications, incorporated by reference in the job specifications, that the contractor “shall observe the provisions of K.S.A. 44-201.”
Plaintiff contends that municipal corporations are creations of law and can exercise only such powers as are specifically conferred upon them by law; no legislation specifically authorizes cities to set wage rates of contractor’s employees and therefore they cannot do so. This argument ignores the Home Rule Amendment, art. 12, § 5, of the Kansas Constitution, adopted in 1960, by which the people of Kansas conferred upon cities the power to determine their local affairs and government, subject to certain exceptions not here applicable. As we observed in City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975), the big impact of the Home Rule Amendment “is that legislative silence on a subject no longer means absence of a city’s authority to act in that area. No longer must Kansas cities rely on enabling statutes by the legislature in order to act by ordinance in matters of local concern.” 216 Kan. at 498.
The requirement of payment of minimum wages by contractors on public projects, whether by inclusion of a specific wage scale or otherwise, is clearly a matter of both state and local concern. That it is a matter of state concern and the subject of state legislation is no impediment to city action “so long as there is no conflict in terms with state legislation and the state legislature has not pre-empted the field.” 216 Kan. at 499. We have discussed pre-emption in Lee and in several other cases there cited, and it would add little to our body of law to repeat here what was said there. We find nothing in K.S.A. 44-201 to indicate that the legislature intended to occupy the entire field or to retain exclusive jurisdiction to legislate in the area. The specifications adopted by the City raise the minimum wage requirement fixed by state statute. The City’s action goes further than the state legislation but does not conflict with it. This is permissible. See Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976); Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P.2d 183, 51 A.L.R.3d 1054 (1971); Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524 (1972).
We do not intend by this discussion to imply that the authority of a city as a contracting party is premised solely upon the Home Rule Amendment. Public bodies having authority to enter into contracts for public works or improvements have the authority to fix the terms of those contracts so long as the terms do not contravene statutory law or public policy. See Middleton v. City of Emporia, 106 Kan. 107, 186 Pac. 981 (1920); Marquette Gravel and Construction Co. v. Bengston, 127 Kan. 492, 274 Pac. 253 (1929); and 10 McQuillin, Mun Corp §§ 29.05, 29.29 (3d ed. 1966).
Plaintiff contends that the City’s inclusion of wages is a violation of K.S.A. 13-1017 which requires cities of the first class to advertise for sealed bids and to award public works contracts to the lowest responsible bidder. Plaintiff contends that some responsible bidders may pay wage scales lower than Davis-Bacon. The City of Topeka has opted out from K.S.A. 13-1017 by adopting a charter ordinance under the Home Rule Amendment, thus the statute is not here controlling. The charter ordinance, however, requires advertising of requests for bids and the letting of contracts to the lowest responsible bidder. Is the inclusion of wage scales a violation of the ordinance? We hold that it is not.
K.S.A. 44-201, as we have held, places a floor below which wage payments may not fall. Contractors who do not wish to pay at those or higher scales are by their own choice eliminated from bidding, although they may be financially or otherwise responsible. Likewise, Davis-Bacon fixes a floor, and contractors who by their own choice do not wish to pay at those or higher scales are eliminated from bidding. Full competitive bids are not required under K.S.A. 44-201 since a wage floor is imposed. The inclusion of Davis-Bacon wages in the specifications simply raises that floor. If a prospective bidder declines to comply with the terms of the contract proposed, whether in payment of wages or in performance of other contract specifications, such a contractor eliminates itself from the bidding and cannot become the “lowest responsible bidder.” One of the purposes of advertising for bids and of letting contracts to the lowest responsible bidder is to insure competition: Williams v. City of Topeka, 85 Kan. 857, 861, 118 Pac. 864 (1911). There is no showing here that the specifications were designed so that only one firm might bid, or that there was no competition among those bidding the project. We find no conflict between inclusion of wages in the specifications and the lowest responsible bidder requirement.
Plaintiff contends that the inclusion of Davis-Bacon wage scales in the specifications denies plaintiff equal protection under the law. At the outset it should be stated that K.S.A. 44-201 as well as the Davis-Bacon Act were enacted not for the benefit of contractors but to protect employees by fixing a floor under wages on public projects. Both are expressions of public policy that payment of low wages shall not give a contractor an advantage in bidding or securing a public contract.
Plaintiff pays its employees less than Davis-Bacon wages; therefore it contends that the specifications discriminate against it and in effect deny it and all other nonunion contractors the opportunity to bid. A similar argument could be leveled against K.S.A. 44-201 by contractors who pay less than the current rate of per diem wages.
Davis-Bacon wages, including fringe benefits, as wé pointed out earlier, can be satisfied by cash payment. Nothing in the specifications requires a bidder to enter into union collective bargaining agreements; all bidders must but agree to pay the same scale. Whether to bid on the terms proposed is a matter of personal choice. We discern no equal protection violation.
Finally, plaintiff contends that the trial court erred in allowing the Topeka Building and Construction Trades Council to intervene because it lacks capacity or standing, and because it has no interest which may be impaired, a requirement for intervention of right under K.S.A. 60-224(a). The Council is an unincorporated association of labor organizations representing persons employed in the building trades in this state. Its goals are to promote improvements in wages, hours and working conditions of the people whom the various member organizations represent.
K.S.A. 44-811 confers capacity upon an unincorporated labor organization to sue or be sued. “Labor organization” is defined by K.S.A. 1979 Supp. 44-802(1) as:
“[A]ny organization of any kind, or any agency or employee representation committee or plan, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
Plaintiff contends that we determined that the Council had no capacity to sue or be sued in Leahy, 187 Kan. 112. Plaintiff’s reliance is misplaced, however, for in Leahy we expressly declined to resolve the same disputed question of capacity. There the Council alleged capacity under G.S. 1949, 44-811, and the allegation was challenged by the opposing parties on the basis of G.S. 1959 Supp. 44-802(1). We did not “pause to decide the disputed question.” 187 Kan. at 114.
The definition of labor organization in K.S.A. 1979 Supp. 44-802(1) is very broad. We conclude that the Council falls within at least the outer perimeters of that definition and has capacity to sue and be sued pursuant to K.S.A. 44-811.
The trial court allowed intervention under both K.S.A. 60-224(a), intervention as of right, and -224(h), permissive intervention. Plaintiff does not argue the permissive intervention issue, and. we hold that the trial court quite properly exercised its discretion in granting the Council permissive intervention under -224(h). The Council as intervenor sought resolution of the same issue raised by1 plaintiff; it raised no new issues; it caused no delay in the proceeding; and no prejudice resulted. We find no error.
We need not decide the intervention of right issue, K.S.A. 60-224(a), since we hold permissive intervention was proper.
In summary, we hold that if it wishes to do so, a municipal corporation may specify, in its plans and specifications for a public building project, wages in excess of the “current rate of per diem wages” required by K.S.A. 44-201, and that such action does not contravene that statute nor is it invalid on other grounds raised by the plaintiff; that the Topeka Building and Construction Trades Council is a “labor organization” and as such was properly granted leave to intervene; and that the trial court did not err in refusing injunctive relief.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Gregory L. Dailey (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427).
The appellant raises four issues on appeal. He contends the trial court erred in admitting rebuttal testimony of Detective Richard L. Vinroe, refusing to give a requested instruction on his alibi defense, and denying probation pursuant to K.S.A. 1978 Supp. 21-4618. The appellant further contends inconsistent and contradictory testimony rendered the evidence insufficient to support the verdict.
An aggravated robbery occurred sometime between 8:15 and 9:15 p.m. on April 3, 1979, at the Godfather’s Pizza, on East 13th in Wichita, Kansas. Mark A. Fenner, the manager of the pizza restaurant the night of the robbery, testified that two black males committed the robbery. At trial, Fenner identified the appellant as the shorter of the two black males. Fenner testified the appellant displayed a large-caliber chrome revolver and ordered him to put the money on the counter and lie down. Fenner complied with the robber’s demands. From his position on the floor Fenner could no longer see the robbers, but heard the appellant speak to a restaurant customer.
Rick Obert and Barbara Clowe were present, eating pizza together the evening of the robbery. Obert testified that he walked to the counter to obtain a take-home container for the uneaten portion of their pizza. Obert saw two black men at the counter. He observed the smaller of the two men display a gun and demand money from the man behind the counter, Fenner. Obert testified the gunman ordered Fenner to lie down and then picked up the money. The gunman noticed Obert standing nearby, put the gun against Obert’s ribs and told Obert, “[Y]ou didn’t see me.” The two robbers then fled. At the trial Obert identified the appellant as the gunman, and the shorter robber.
Barbara Clowe testified that she observed two black men enter the restaurant, noticed that they remained at the counter for a few minutes, then left. She identified the appellant as the shorter of the two men.
Timothy Peadon, another Godfather’s Pizza customer at the time of the robbery, testified at the trial. Peadon testified he observed two black males enter the restaurant, stand at the counter a short period of time, then leave. Peadon described both robbers as young men, one being shorter than the other. Peadon was unable to identify the appellant as one of the robbers.
Fenner, Clowe and Obert testified that in June 1979 they each selected a mug shot of the appellant from a group of photos they viewed with Detective Richard Vinroe. While visiting Vinroe at the Wichita Police Station, Fenner selected a mug shot of the appellant from a group of photos stacked on Vinroe’s desk. Clowe and Obert identified the appellant as one of the robbers when they viewed a photographic lineup.
Detective Vinroe testified that on June 13,1979, he met with the appellant at the Wichita Police Department. Vinroe advised the appellant of his Miranda rights, and the appellant waived those rights by reading and signing a waiver of rights form. Vinroe then interrogated the appellant about his whereabouts on April 3, 1979. Vinroe testified that the appellant first stated he was in Salina that day, then changed his response and stated he was at the home of a friend, Ricky Beard. At trial, the appellant admitted his responses to Vinroe were not the truth. The appellant’s defense at trial was based upon the álibi testimony of his grandparents — Roosevelt and Mira Dailey, his girl friend — Connie Waity, and a male friend — Emory Pharris. The appellant testified on his own behalf. The alibi testimony attempted to establish that the appellant was at his grandparents’ house most of the evening, and in particular, after 7:45 or 8:00 p.m.
Detective Vinroe testified on rebuttal that he spoke with the appellant’s grandparents in September 1979, after the prosecutor received notice that the grandparents would be used as alibi witnesses. Vinroe testified that the grandparents told him the appellant and Emory Pharris left during the evening and took Connie Waity to her home. Vinroe’s rebuttal testimony was admitted over the appellant’s objection.
The jury returned a verdict of guilty of aggravated robbery. The appellant was sentenced to not less than five nor more than twenty years. Because the appellant used a firearm while committing the offense, the trial court denied probation pursuant to K.S.A. 1978 Supp. 21-4618. Appeal has been duly perfected.
The appellant’s first challenge raises an issue as to the application of K.S.A. 1978 Supp. 21-4618 to his sentence. If K.S.A. 1978 Supp. 21-4618 applies, the appellant may not be placed on probation or parole before he serves the minimum sentence. He contends the 1979 amendment to the statute should have retroactive application, thereby exempting him as a person under eighteen (18) years of age from the statute’s harsh effect. The offense for which the appellant was convicted occurred on April 3, 1979, and the appellant was then seventeen years old. The referral of the appellant from juvenile court to district court occurred on July 25, 1979, after the effective date of the amendment. The appellant was found guilty on October 25, 1979, and sentence was imposed on November 16, 1979.
Two recent cases have discussed possible retroactive application of the amendment. In State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980), the court held the 1979 amendment should not be retroactive. In State v. Purdy, 228 Kan. 264, 273-74, 615 P.2d 131 (1980), we stated:
“Finally, defendant argues the court erred in sentencing him under the firearm statute, K.S.A. 1978 Supp. 21-4618, because the law was amended to exclude minors from its provisions, effective July 1, 1979. The mandatory sentencing provisions were applicable to this defendant at the time the offenses were committed and defendant was sentenced on May 11, 1979. Defendant contends had he been sentenced after July 1, 1979, the mandatory firearms statute would not have applied. He argues the new provision should be retroactively applied. This argument is extensively discussed in State v. Hutchison, 228 Kan. [279, 287, 615 P.2d 138 (1980)], wherein we hold retroactive application of the amendment would violate the statute’s terms. We find no merit to this issue.”
There is one difference between those two cases and the instant case. Hutchison and Purdy were tried and sentenced before July 1, 1979, the effective date of the amendment. Here the appellant was tried and sentenced after the effective date. This distinction should not change the result. The Hutchison analysis is equally applicable here for the following reasons:
(1) K.S.A. 1979 Supp. 21-4618 states that “[t]his section shall apply only to crimes committed after the effective date of this act.” (But it must be noted this provision was in the original enactment in 1976.)
(2) The general rule of statutory construction should still apply — prospective application only. Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979).
(3) The penalty applicable to a crime is that which is provided by statute at the time the crime is committed. State v. Henning, 3 Kan. App. 2d 607, 609, 599 P.2d 318 (1979).
The appellant next asserts the trial court erred in admitting the rebuttal testimony of Detective Richard L. Vinroe. The appellant properly notified the prosecuting attorney in advance of trial that the grandparents would testify to his alibi. At trial, the grandparents testified the appellant was at their home with friends most of the evening. Both grandparents specifically testified the appellant was at their house between 8:00 p.m. and 9:30 p.m. on April 3, 1979, and that Emory Pharris alone took Connie Waity home.
The State then recalled Detective Richard Vinroe as a rebuttal witness. Vinroe first rebutted portions of the appellant’s testimony. Vinroe then stated that in an interview the grandparents had told him the appellant had left their home with Emory Pharris, to take Connie Waity home.
The appellant argues the State improperly failed to comply with K.S.A. 1979 Supp. 22-3218(2). That statute requires the prosecuting attorney to give notice to the defendant of “the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the case.” Here the prosecuting attorney had endorsed the name of Detective Richard Vinroe as a witness on the complaint-information.
We need not dwell on the appellant’s argument made in his brief. Here, the record reveals the only objection by the appellant to Detective Vinroe’s rebuttal testimony concerning the grandparents was an objection to the foundation laid at the time the question was asked. The appellant wanted Vinroe to establish the time he conducted an interview with the grandparents. The trial court overruled the objection because Vinroe had testified the interview took place “toward the very last of September.” The appellant did not pursue the objection at trial, and the motion for new trial makes no mention of the point asserted for the first time on appeal. Under the contemporaneous objection rule, failure to make timely, specific objection to the admissibility of evidence will bar consideration of the admissibility question on appellate review. K.S.A. 60-404. State v. Whitehead, 226 Kan. 719, 722, 602 P.2d 1263 (1979).
The appellant next contends the trial court erred in failing to give the following requested instruction: “The defendant does not have to prove his alibi defense.” The appellant argues there is danger of the jury impermissibly shifting the burden of proof on the alibi issue to the defendant, especially when alibi is the sole defense.
In State v. Rasler, 216 Kan. 582, 586, 533 P.2d 1262 (1975), this court stated: “As previously indicated in State v. Skinner, 210 Kan. 354, 503 P.2d 168, and State v. Murray [210 Kan. 748, 504 P.2d 247 (1972)], we approve of the PIK Committee’s recommendation that there be no separate instruction on alibi.” Adequate and proper instructions were given on the elements of the crime charged and on the prosecution’s burden to prove guilt beyond a reasonable doubt. The trial court did not err in its refusal to give the requested instruction.
Finally, the appellant contends the evidence is insufficient to support the verdict of guilty. He points to the inconsistencies and contradictions between the testimony of the State’s witnesses, e.g. time of crime, weather on day of crime, movement and actions of the robbers in the restaurant and description of the robbers.
The often quoted test for sufficiency of evidence is: Does the evidence when viewed in the light most favorable to the prosecution convince the court that a rational fact finder could have found the defendant guilty beyond a reasonable doubt? State v. McGhee, 226 Kan. 698, 701, 602 P.2d 1339 (1979), State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
After examining the record we are satisfied the inconsistencies and contradictions between the witnesses appear to be normal disparities in perception and observation abilities of several people in a pizza restaurant. There was substantial competent testimony identifying the appellant as one of the robbers. The witnesses described the actions of the robbers in similar ways. As rational fact finders, the jury could properly have found the appellant guilty beyond a reasonable doubt.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by the defendant, Merchants Mutual Bonding Company, from a judgment for $6,421.11 entered against it and in favor of the plaintiffs by the Shawnee District Court following a bench trial on a suit brought on a surety bond written by defendant. Plaintiffs are Local No. 1179, Carpet, Linoleum and Resilient Floor Decorators Union, Trustees of Kansas Building Trades Open End Health and Welfare Fund, and Trustees of Kansas Construction Trades Open End Pension Trust Fund. Several issues are raised on appeal, including a claim that the trial court’s findings are not supported by the evidence. We therefore discuss the facts in some detail.
Local No. 1179 and the Floor Covering Association of Northeast Kansas, Inc., entered into a collective bargaining agreement on April 9, 1973. That contract by its terms was effective from April 1, 1973, until March 31, 1976. Local No. 1179 executed the agreement on behalf of its members, workmen employed in the trade within the geographic area described, designated as employees. The Association executed it on behalf of its members, designated as employers. The agreement includes familiar provisions as to union recognition, hours and conditions of employment, wages, and fringe benefits. In addition, it requires the Association to “put up an insurance security bond” in the amount of $10,000 to indemnify employees of the employers with respect to wages, health and welfare, vacation and holiday, apprenticeship and pension plan payments. The Association agrees to provide a list of its members “who are covered by said bond,” and to keep the list current.
The Association made application to Merchants Mutual, through its Topeka agent, for a bond in the amount of $2,000, and on January 15, 1974, Merchants caused its endorsement as surety to be affixed to a bond from the Association as principal to Local No. 1179 as obligee in the amount of $2000, conditioned upon the Association’s faithful and prompt payment of health and welfare, pension, and other fringe benefit payments required by the agreement between the Union and the Association, dated April 1, 1970. An endorsement increasing the amount of the bond from $2,000 to $10,000 was executed by Merchants Mutual on February 1,1974. Copies of the bond and the endorsement, both signed by Merchants Mutual, were mailed by it to Local No. 1179. The original bond and endorsement were mailed to the Association, and the Association paid the required premium. The Association, thinking the originals of the bond and endorsement were copies for its files, retained them; neither original was signed by the Association and neither original was delivered to the Union.
Ed Driscoll was one of the directors of the Association at the time of its incorporation in 1973. He operated the Driscoll Floor Covering Service at Topeka, Kansas. The Association certified to the Union that “Driscoll Carpet Service” was a member of the Association on January 4, 1974. The Association’s president testified in substance that Driscoll was a member of the Association continuously from January 4,1974, until sometime after June 25, 1975. Driscoll encountered financial problems, and as a result he failed to make fringe benefit payments, including health, welfare, and pension fund payments, for his employees for January, 1975, and succeeding months. The Union knew of this default by March 10, 1975. The Union’s business agent told the local Merchants Mutual agent, in March or April, 1975, that there was a possibility that the Union “would be filing on the bond” as a result of the Driscoll default. Written notice of claim was sent by the Union to Merchants Mutual in September, 1975. Merchants Mutual responded in January 1976, stating that “your claim is not a valid one under the bond, primarily because you did not give timely notice of the delinquency. I am sorry that we cannot honor your claim under our bond . . . .”
Meanwhile, Local No. 1179 filed suit against Driscoll in United States District Court, secured an audit of Driscoll’s books, and was awarded a default judgment against him in November, 1975. Driscoll filed a voluntary petition in bankruptcy and was later discharged from the judgment. Local No. 1179, joined by the trustees of the two funds, then commenced this action on the bond.
The controlling issues are these: whether the entry of a judgment in favor of plaintiffs and against the named principal on the bond, the Association, is a prerequisite to suit against the surety; whether notice of default was timely, and, if not, whether the surety is absolved, of liability; and whether evidence supports the trial court’s findings and judgment. We turn to these issues in order.
The Association was formed, according to its articles of incorporation, for the primary purpose of negotiating, entering into, and administering collective bargaining agreements with the employees of the member firms. This is borne out by the testimony of the officers of the Association. The Association itself had no employees; it simply presented a united front, a single entity for the purpose of negotiating and entering into a collective bargaining agreement with the Union. The Union represented its members, the employees; the Association represented management, its member floor covering contractors.
The Association itself paid no wages and no fringe benefits. Each member firm paid to its workmen the union scale provided by the April 1, 1973, collective bargaining agreement or the later amendments thereto, and each remitted monthly to the Union and the trustees the amounts required for vacation pay, health and welfare, pension, and other fringe benefits. The Association had no financial dealings with plaintiffs; it was a nonprofit corporation, was not authorized to issue capital stock, and there is no evidence that it had any assets. The Association was acting as an agent for its member contractors when it negotiated and signed the collective bargaining agreement and when it applied for and secured the surety bond required by that agreement. The bond makes reference to and incorporates the terms of the collective bargaining agreement insofar as it requires payment of dues, vacation and holiday pay, health, welfare, and pension contributions and other fringe benefits.
The Union proceeded against Driscoll, the actual employer who was obligated to make the fringe benefit payments, and it secured a judgment against him. Looking through form to substance, as we are required to do (K.S.A. 60-2105), it is obvious that the bond was intended to protect the plaintiffs from default by Driscoll or the other member contractors in the payment of fringe benefits. A surety bond is to be construed in the light of the circumstances in which it is given, so as to effectuate its purpose. Kendall v. Black, 99 Kan. 101, 102, 160 Pac. 1015 (1916); City of Wichita v. Home Cab Co., 151 Kan. 679, 687, 101 P.2d 219 (1940).
Defendant relies upon Ward v. Krhounek, 151 Kan. 414, 99 P.2d 800 (1940), where this court, under the facts before it, held that before liability could be decreed against the surety on an executor’s bond in an estate long since closed, there would first have to.be an adjudication that the executor had violated his duty in some respect, and that the extent thereof had been reduced to a money judgment. In the case before us, however, the obligees have pursued the principal debtor - for whom the principal on the bond was acting - and secured an accounting and a money judgment. The defalcation has been determined and adjudicated. To require also a money judgment against the Association as a condition precedent to an action against the surety would be of no real benefit to the plaintiffs or to the surety. According to the ancient maxim, lex non praecipit inutilia, quia inutilis labor stultus, the law commands not useless things, because useless labor is foolish. We conclude that a judgment against the Association is not a prerequisite to the bringing of this action.
We turn next to the notice of default. The bond provides that in the event of default, the obligees (plaintiffs) shall notify the surety within 30 days after the obligees shall have had knowledge of such default. No penalty is provided in the bond for failure to give prompt notice.
The evidence, outlined above, is that Driscoll was obligated to pay fringe benefits for his employees by early March, 1975, and that he did not do so. The plaintiffs then knew that Driscoll was in default. In either March or April, the Union notified the resident agent of the surety, by telephone, of the default and the possibility that a claim would be made on the bond. A formal written claim was made in September. There was no evidence that the surety was disadvantaged or that its position was adversely affected because of delay in the giving of notice. We agree with the trial court that “there was substantial compliance with the notice requirement . . . .”
As Chief Justice Johnston observed in Hier v. Harpster, 76 Kan. 1, 4, 90 Pac. 817 (1907):
“Ordinarily the creditor owes the surety no active diligence .... The general rule is that the obligation to see that the debt is paid rests on the surety and not on the creditor . . . .”
See also Zavesky v. Maryland Casualty Co., 136 Kan. 478, 483, 16 P.2d 504 (1932).
In School District v. McCurley, 92 Kan. 53, 142 Pac. 1077 (1914), we held that bonding companies engaged in the business of insuring the performance of contracts of others for pay are not “favorites of the law” in the sense the term is applied to accommodation sureties; that such companies are in fact insurers; and that the failure of the obligee to give notice of the principal’s default in strict compliance with the terms of the bond does not relieve the surety of liability when the failure to notify resulted in no actual loss or prejudice to the surety. We said:
“The breach of a condition precedent in a bond given by an insurer for pay will not relieve the insurer from liability for any loss for which he would otherwise be liable unless such breach contributed to the loss.” 92 Kan. at 58.
We conclude that under no construction of the evidence is the surety entitled to discharge in this case.
Finally, we turn to the claim that the record does not support the trial court’s findings and judgment. It would unduly prolong this opinion to detail the various documents in the record, as well as the testimony of the Union officials, the agent who wrote the bond, officers of the Association, and former employees of Driscoll. We have carefully examined the evidence and find full and adequate support for the trial court’s findings and conclusions.
We have not overlooked other points raised but find them without substantial merit. The judgment is affirmed. | [
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The opinion of the court was delivered by
' McFarland, J.:
This is a class action against the Secretary of the Department of Social and Rehabilitation Services (SRS). Plaintiffs contend that the proposed narrowing of eligibility for General Assistance (GA) benefits and reduction in Medikan benefits violate Article 7, § 4 of the Kansas Constitution and the equal protection guarantees of the Kansas and United States Constitutions. Plaintiffs are recipients of benefits under the GA and Medikan programs. The district court held in favor of defendant, and plaintiffs appeal therefrom.
When this action was commenced in December of 1989, it challenged regulations to take effect on January 1, 1990. The regulations would have eliminated all Medikan benefits and reduced GA payments by $9 per month per recipient. The issues were vigorously litigated, and, on April 9, 1991, the district court held that the proposed regulations had not been lawfully prom ulgated. The issues were all procedural in nature. While various post-trial motions were pending, SRS published notice of new proposed regulations concerning GA eligibility and Medikan benefits which would become effective on July 1, 1991. The litigation relative to the January 1, 1990, proposed regulations stopped in its tracks. An amended petition was filed challenging the validity of the July 1, 1991, proposed regulations. The issues before us relate wholly to the 1991 regulations.
The issues before us are as follows:
1. Does the action of SRS in seeking to eliminate cash and medical assistance to certain members of the plaintiff class violate Article 7, § 4 of the Kansas Constitution which states the respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who may have claims upon the aid of society?
2. Does the action of defendant in seeking to eliminate or substantially reduce cash and medical assistance to certain members of the plaintiff class violate the equal protection guarantees of the Kansas and United States Constitutions?
At this point, some background information must be provided in order to understand the issues.
GA, a wholly state funded program, provides cash assistance to persons in need. Eligibility is determined based on need, income, and assets. See K.S.A. 1992 Supp. 39-709(d)(l)(A). An applicant’s income is adjusted through deductions for work and child care expenses. If the adjusted income is over a certain amount, no need is considered to be present and benefits are not available. Applicants also cannot have any more than $1,000 in nonexempt assets. Exemptions are allowed for homes, up to $1,500 in face value of life insurance, personal effects, household furnishings, keepsakes, and prepaid burial and funeral plans. K.A.R. 30-4-108(c); K.A.R. 30-4-109(c). Persons receiving GA also are eligible for Medikan, a medical benefits program. Medikan is also wholly state funded.
SRS also administers several benefit programs which are jointly funded through the federal government and the State with the former providing the bulk of the funds. A brief and highly oversimplified discussion of one of these programs is necessary to understand the role of GA and Medikan. Aid to Families with Dependent Children (AFDC) provides cash assistance to needy families with children and to pregnant women in their third trimester. The federal government has the ultimate control over the eligibility requirements and benefits available.
Social Security (SS) and Supplemental Security Income (SSI) are programs which are fully funded and administered by the federal government. SSI provides monthly cash assistance to needy persons who are age 65 and over, blind, or disabled as defined by federal law. Obtaining SS or SSI benefits based upon disability is often a lengthy process. Eligibility requires that persons be unable to engage in any substantial gainful activity due to physical or mental impairment which can be expected to result in death or last for at least 12 continuous months. 42 U.S.C. § 423(d)(1)(a) (1988).
Medicaid provides medical benefits to persons receiving cash assistance under AFDC, SSI, and SS disability and in certain other circumstances. The federal government pays 57 percent of the cost of Medicaid in Kansas.
By setting up this framework, we can place GA and Medikan in perspective. The district court made the following findings of fact relative to these programs:
“14. General Assistance . . . furnishes cash assistance to needy Kansans who are not eligible for any other cash assistance program funded solely or partially with federal funds. As with AFDC, the Kansas Legislature has stated that GA recipients ‘must have insufficient income or resources to provide a reasonable subsistence compatible with decency and health.’ K.S.A. 39-709(d)(l)(A).
“General Assistance recipients include needy families who do not meet the technical requirements of AFDC, pregnant women (during the first two trimesters), disabled adults who have not been approved for Social Security or Supplemental Security Income disability, ‘elderly’ persons (aged 55-64), persons in residential drug treatment programs and persons recently released from state mental hospitals.
“During fiscal year 1990, 15,728 Kansans received GA. In December, 1989, those recipients included 876 adults and 1,176 children in families, 275 pregnant women, 3,672 disabled adults, 656 persons aged 55-64, 18 people in residential drug treatment programs, and 58 people recently released from state mental hospitals.
“15. All recipients of GA cash assistance are eligible for medical services, through the MediKan program. Children and pregnant women are also eligible for Medicaid benefits, and, therefore, participate in the Medicaid program.
“16. The GA disabled are typically single individuals with a mental or physical handicap which creates a substantial barrier to gainful employment. Many are awaiting a federal disability decision and, if they are successful, SRS will be reimbursed for their cash benefits and will receive retroactive federal matching payments for their medical assistance. Others are not sufficiently disabled to receive federal disability benefits, but still are untrained, ill-educated and often have psychological impairments or suffer from chronic drug or alcohol dependency.
“17. The GA elderly are all aged 55 through 64. Physical and mental conditions similar to • those of the disabled keep them from any long-term employment. The median age is 59. The majority have done manual labor all of their lives but, because of injury or physical or mental illness, can no longer do so. Many are awaiting federal disability decisions. If they qualify for a federal disability program, reimbursement and retroactive matching payments are made to SRS by the federal government, as in the case of the GA disabled.
“18. All GA recipients must meet income and resource eligibility rules.
“19. Every applicant for or recipient of GA benefits is ineligible for assistance if that person, without good cause, refuses a referral for or offer of employment, terminates employment, or is terminated from employment for good cause.”
. The Secretary of SRS is authorized to adopt rules and regulations setting criteria for eligibility for GA, including consideration of factors such as age and physical or mental conditions. K.S.A. 1992 Supp. 39-709(d)(l)(A).
Prior to the proposed changes, K.A.R. 30-4-90 extended GA benefits to, inter alia, “a person who has been medically determined to be physically incapacitated as set forth in K.A.R. 30-4-63(a)(2), except that the condition must only constitute a substantial handicap to gainful employment” and persons aged 55 or older. A doctor s statement was accepted as proof of incapacitation. Persons aged 55 or older did not have to show physical incapacity. K.A.R. 30-4-63(a)(2) included a provision that required the physical incapacity to extend beyond 30 days. SRS, due to budgetary constraints, proposed extending the 30-day period to 6 months and requiring persons aged 55 or older to also be physically incapacitated for the 6-month period before benefits would be granted. 10 Kan. Reg. 567 (1991). Medical services available under Medikan were sharply reduced under the pro posed regulations. The district court’s findings in this regard are as follows:
“8. For those who continued to be eligible for GA, the proposed regulations provided for sharply reduced MediKan benefits. Coverage for the following services was eliminated under MediKan:
a. All hospital services, except out-patient diagnostic laboratory and radiology services;
b. All physician services, except for twelve office visits per calendar year and diagnostic laboratory and radiology services;
c. Local health department services;
d. Advanced nurse practitioner and registered nurse anesthetist services;
e. Targeted case management services;
f. Hospice services;
g. Rural health clinic services;
h. Home health services;
i. Dental services;
j. Chiropractic services;
k. Podiatric services;
l. Psychological services;
m. Hearing services;
n. Ambulance services;
o. Orthotic and prosthetic services;
p. Free-standing inpatient psychiatric services;
q. Family planning services;
r. Ambulatory surgical center services; and
s. Substance abuse services.
“9. Additional reductions were proposed for community mental health services.
“10. The reason given for all of these reductions in services was that they were necessary to allow the agency to stay within fiscal year 1992 appropriations.
“11. After the reductions in coverage proposed by the Defendant, the scope of services covered by MediKan would be limited to:
a. Twelve office visits per year to a physician, plus diagnostic laboratory and radiology services performed by a physician;
b. Prescription drugs;
c. Durable medical equipment and supplies, except for prosthetics and ortho tics;
d. Out-patient hospital diagnostic laboratory and radiology services; and
e. Reduced community mental health center and partial hospitalization services.
“12. These proposed temporary regulations were adopted at a State Rules and Regulations Board meeting on June 10, 1991. These temporary regulations were intended to be effective from July 1, 1991, through October 30, 1991. A temporary restraining order issued on June 26, 1991, however, barred Defendant from implementing these temporary regulations.”
Plaintiffs contend that: (1) the elimination of the “elderly” classification (those aged 55-64) from GA and Medikan benefits except as to individuals within that age group who can qualify as disabled; (2) the extension of the disability requirement from one to six months; and (3) the reduction in Medikan benefits violate Article 7, § 4 of the Kansas Constitution. This constitutional provision provides:
“Aged and infirm persons; financial aid; state participation. The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who, by reason of age, infirmity or other misfortune, may have claims upon the aid of society. The state may participate financially in such aid and supervise and control the administration thereof.”
The section, as originally ratified, read: “The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who, by reason of age, infirmity or other misfortune, may have claims upon the sympathy and aid of society.” It has been amended twice since the ratification of our constitution, once in 1936 and later in 1972. L. 1936, ch. 4; L. 1972, ch. 394, § 1. The former amendment at least clarified, if not added, the authority for the State to participate in the payment and supervision of aid to the aged and infirm. See State, ex rel., v. Jackson County Board of Social Welfare, 161 Kan. 672, 674, 171 P.2d 651 (1946). The latter amendment removed reference to claims on the sympathy of society.
Before proceeding further, some comments need to be made on the district court’s memorandum decision herein. Its findings of fact and conclusions of law extend over some 43 pages, yet are concise in summarizing and discussing the evidence and provide a well-reasoned analysis of the issues. We adopt the following portions of the district court’s memorandum decision.
“15. As noted above, Article 7, Section 4 of the Kansas Constitution mandates that ‘The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who by reason of age, infirmity or other misfortune, may have claims upon the aid of society.’ Since 1973, the State has assumed control of social welfare programs and placed the powers, duties, and functions of the county social welfare boards in the hands of the Secretary. K.S.A. 39-744.
“16. Our Supreme Court has consistently characterized the constitutional language as mandatory. Article 7, Section 4 ‘gives voice to a universally recognized state duty, to be discharged in the interest of the public welfare.’ Beck v. Shawnee County, 105 Kan. 325, 330 (1919). In Caton & Starr v. Osborne County, 110 Kan. 711 (1922), the Court stated: ‘The constitution enjoins this care and commands that counties of the state shall provide for the poor and those who have claims upon the sympathy and aid of society.’ 110 Kan. at 714 (emphasis added). Finally, in Slate ex rel. Mitchell v. Jackson County Board of Social Welfare, 161 Kan. 672, 674 (1946), the court put in precise terms that Article 7, Section 4 ‘made it the duty of the counties to provide for those inhabitants who, by reason of age, infirmity or other misfortune, may have claims upon the sympathy and aid of society.’ (emphasis added).
“17. It perhaps begs the question to conclude that the constitutional language imposes a duty. The real issue is the depth, and breadth, of that duty.
“Obviously Article 7, Section 4 does not require state support to anyone who simply claims to be needy. By its terms, the constitutional provision is limited to such provision of the poor ‘as may be prescribed by law.’ Thus, in Gleason v. Sedgwick County, 92 Kan. 632 (1914), a blind, destitute, disabled plaintiff, without family able to support him, was not entitled to a pension ‘sufficient for his maintenance.’ The court emphasized that plaintiff was receiving a pension of ten dollars per month, that the applicable statute authorized but did not require pensions up to fifty dollars per month, and that the Board of County Commissioners had deemed an increased pension to be unwise.
“18. In short, the legislative history of a similar provision in the New York State Constitution provides an accurate description of Article 7, Section 4:
‘While the obligation expressed in this recommendation is mandatory, in that the Legislature shall provide for the aid, care and support of persons in need, the manner and means by which it shall do so are discretionary.’ Tucker v. Toia, 371 N.E.2d 449, 452, 43 N.Y.2d 1 (1977).
“19. This notion of discretionary means to carry out a mandatory duty was developed further in Bernstein v. Toia, 402 N.Y.S.2d 342, 348, 737 N.E.2d 238, 43 N.Y.2d 437 (1977):
‘There remains only petitioners’ contention that the regulation in question by failing to provide them with the shelter allowance each deems necessary, having in regard his or her individual circumstances, violated section 1 of article XVII of the State constitution. That section provides: “The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.” We do not read this declaration and precept as a mandate that public assistance must be granted on an individual basis in every instance, thus precluding recourse to the flat grant concept, or indeed as commanding that, in carrying out the constitutional duty to provide aid, care and support of the needy, the State must always meet in full measure all the legitimate needs of each recipient. When, as here, the over-all consequence of the method of distribution of aid to the needy adopted initially by the Legislature, and subsequently by the department charged with executing the social services program, is reasonably expected to be in furtherance of the optimum utilization of public assistance funds, there has been no violation of the constitutional command.’ 402 N.Y.S.2d, 348 (1977).
“20. In the absence of any Kansas authorities directly on point, this Court finds persuasive and adopts the approach of the New York Court of Appeals, as expressed above.
“21. The question then seems to be ‘Were the changes proposed reasonably expected to be in furtherance of the optimum utilization of public assistance funds?’
,“22. One difficulty in addressing that question is that the record contains no evidence explaining the rationale for previously including as eligible categories those aged 55 to 64 and those with a disability expected to last at least one month but less than six months.
“In other words, K.S.A. 39-709(d)(l)(A) sets forth as requirements for General Assistance that
a needy person must have insufficient income or resources to provide a reasonable subsistence compatible with decency and health and, except as provided for transitional assistance, be a member of a family in which a minor child or pregnant woman resides or bé unable to engage in employment.
This record contains nothing to account for the Secretary’s decision, at some unspecified time in the past, to include those aged 55-64 or those with a disability of at least one month but less than six months within the population eligible to receive General Assistance.
“23. The record certainly does contain evidence which would justify a decision to provide General Assistance to those populations ....
“25. Just as the record contains no clear statement of the reason for including the two groups in the GA population, it likewise contains no clear explanation for the decision to remove these two groups from GA eligibility. The agency impact statement estimated that 1,200 GA clients (of a total of 5,000) would lose their benefits due to the eligibility changes. That estimate assumed that 50% of the GA recipients aged 55-64 would be able to maintain their eligibility by qualifying under the new disability standard.
“The agency impact statement concluded that ‘Coverage for the more vulnerable groups, including children and the disabled, is protected under this change.’
“Karen Crist-Terrill, a rehabilitation counselor and vocational expert, noted that there is a distinction between disability and unemployability. Disability refers to a physical or mental impediment to employment. Dnem- ployability refers to the lack of transferable skills necessary to obtain employment. She noted that an individual aged 55-64 with no high school diploma and a history of manual labor has only a slim chance of obtaining employment. She referred to the latest available statistical data which reveals that, nationwide, persons aged 55-64 have a mean duration of unemployment of 24.8 weeks, just over six months.
“Kandy Shortle is the S.R.S. Administrator of Income Maintenance. She participated in the discussions which produced the program changes at issue here. She testified that the working group was instructed to develop a proposal for funding GA and MediKan at a lower level. The working group assumed that those aged 55-64, who did not qualify as disabled, were able-bodied and capable of seeking employment. The working group had no data to indicate and did not assume that those who lost benefits would be capable of obtaining employment. Similarly, the working group assumed that those individuals with a disability expected to last less than six months could rely on family or charity for support during their disability, and successfully support themselves once the disability had ended. The working group did not base tiróse assumptions on any data. The working group did not rely on or identify any external factor which had reduced the needs of those receiving GA who would be excluded under the modifications. The conclusion of the working group was that S.R.S.’s priority should be to maintain GA for families, in light of the vulnerability of the children of those families.
“John Alquest testified that the working group was provided with a figure of 3.9 million dollars, and modified MediKan to fit within that amount. The record does not indicate the basis for that 3.9 million dollar figure.
“26. The Plaintiffs’ position, in effect, is that once S.R.S. includes a group within the GA population, benefits for that group may not be eliminated. The definition of needy, according to Plaintiffs, cannot be refined or modified. Plaintiffs provide no case law to support this position, nor do they allege that the eligibility changes violate a specific Kansas statute. Plaintiffs, in fact, acknowledge that the statutory provisions for GA and MediKan are expressed in permissive, not mandatory language. Finally, Plaintiffs have not established that Defendant acted unreasonably in limiting GA to those considered least able to cope with or recover from their economic misfortune.
“It may be purely coincidental that the average period of unemployment for those aged 55-64 is approximately six months — the same period used to define GA eligibility for the disabled. But the record does provide a basis for distinguishing between the disabled and those who are unemployable (lack transferable job skills).
“Finally, it cannot be said — and Plaintiff does not argue — that the Defendant acted unreasonably in requiring a certain degree of permanency (6 months) before a disability warrants GA benefits. Such a yardstick provides at least a rough method of identifying those who are unable to provide for their own basic needs. See Beck v. Shawnee County, 105 Kan. at 329-30; State ex rel. Griffith v. Osawkee Township, 14 Kan. 418, 421 (1875).
“27. Plaintiffs rely on Tucker v. Toia, 400 N.Y.S.2d 228, 231, 371 N.E.2d 449 (1977), which held that a New York statute violated the affirmative duty to aid the needy imposed by the New York State Constitution. As quoted by Plaintiffs:
‘The effect of the questioned statute is plain: it would effectively deny public assistance to persons under the age of 21 who are concededly needy, often through no fault of their own, who meet all the criteria developed by the Legislature for determining need, solely on the ground that they have not obtained a final disposition in a support proceeding. Certainly, the statute is in furtherance of a valid State objective, for it is intended to prevent unnecessary welfare expenditures by placing the burden of supporting persons under 21 upon their legally responsible relatives. This valid purpose, however, cannot be achieved by methods which ignore the realities of the needy’s plight and the State’s affirmative obligation to aid all its needy.’ (emphasis added).
“There are four problems with Plaintiffs’ reliance on Tucker. First, it is not conceded in this case that those who lack a permanent (6 month) disability are ‘needy.’ Secondly, this is a situation where the definition of needy has been altered, not a circumstance where an admittedly needy individual is denied assistance. Third, the statute in Tucker required a needy individual under the age of 21 to file suit and obtain a judgment requiring a legally responsible relative to contribute to that individual’s support. The Court of Appeals rejected the use of such a technical requirement to deny aid to a qualified individual. No such technical requirements are at issue here. Finally, the Tucker decision a short time ago was cited for the proposition that the legislature retains discretion to determine the extent and definition of ‘needy’. Lovelace v. Gross, 537 N.Y.S.2d 783, 784-85, 142 Misc.2d 605 (Sup. 1989).
“28. Plaintiffs also cite Butte Community Union v. Lewis, 745 P.2d 1128 (Mont. 1987), a decision construing a provision of the Montana Constitution. In that case, the Montana Supreme Court affirmed a trial court’s findings that the legislative definitions for ‘needy’ were unreasonable. The record is this case does not support that conclusion.
“29. In short, the Defendant’s changes in eligibility rules for GA/MediKan did not violate Article 7, Section 4 of the Kansas Constitution. This conclusion, however, must not be viewed as tacit acceptance of Defendant’s argument that the changes reduced administrative costs associated with disability determinations, as the Defendant’s employees continue to perform the same clerical tasks of reviewing physician statements for compliance with the new disability period. In addition, Defendant’s argument that counties retain legislative authority to develop programs of aid for the needy ignores the language of K.S.A. 39-744 which transferred all county welfare powers to the Secretary.
ARTICLE 7, SECTION 4 AND MEDIKAN
“30. With regal'd to the MediKan modifications, Plaintiffs argue that the changes result in a program so inadequate as to be violative of Article 7, Section 4.
“The single Kansas decision which addresses the provision of medical care for the needy is Caton & Starr v. Osborne County, 110 Kan. 711 (1922). In that case, an indigent child was diagnosed as having a mastoid ailment. Her doctor determined that immediate surgery was required to save her life. Tlie overseer of the poor transported her to Concordia, where a successful operation was performed. The bill for the operation was submitted to the commissioners of Osborne County (the girl’s residence), but they refused to pay it. Suit was filed, and the trial court granted judgment in favor of the county.
"The Supreme Court noted that the statutes reqüired a physician to notify á county commission in writing, when an indigent child was found to be afflicted with a malady or deformity necessitating surgery or hospitalization. Once that notice was supplied, the county board of health was required by law to transport the child to the hospital at the University of Kansas. In Catón, the notice had not been supplied and the child had been taken to another hospital.
“Despite these statutory requirements, the Supreme Court reversed the decision of the lower court:
‘In view of the humane considerations which prompted enactments for the relief of the poor it is inconceivable that the legislature intended that afflicted children of the poor who required immediate medical or surgical treatment and whose lives would be lost for the lack of it, should be given no treatment or relief until the slow-moving machinery of the county board should be set in motion, and that tribunal should legally convene to determine the necessity for sending the child to the university hospital, and until it was transported there. . . . The constitution enjoins this care and commands that counties of the state shall provide for the poor and those who have claims, upon the sympathy and aid of society. (Art.7, § 4) When an overseer of the poor finds a poor person in need of care, it is his duty to furnish him prompt and proper relief.’ 110 Kan. at 713-714 (1922).
“31. Plaintiffs’ claim as to the revised MediKan program is a bald assertion. Plaintiffs have provided no evidence as to the impact of the MediKan changes on any class member. They have provided no legislative, judicial, or policy rationale to support their conclusion that these MediKan changes are unconstitutional.
“The expansive language of the Catón ir Starr decision must be viewed in context. That decision interprets a statute providing for surgical operations for children of the poor. K.S.A. 39-708c(5) simply directs the Secretary to develop plans financed by federal funds or state funds or both for providing medical care for needy persons.
“This is not to deny that the modified MediKan program is skeletal. One might argue that only those who remain healthy are served by it. Many who suffer from severe or chronic illness will require medical services outside the limited scope of the program designed by the Secretary.
“32. The record in this case is that the MediKan modifications reflected a priority for primary care. No precise definition of ‘primary care’ is contained in the record. John Alquest, Chief of Service Delivery for S.R.S., testified that access to physician services was a first line of defense for health care. He did not recommend that hospital care be dropped from MediKan benefits.
“Hospital costs had grown to represent about two-thirds of the MediKan budget, affording service to a small part of the MediKan population. The working group assumed that hospitals would continue to serve those in acute need, even though MediKan no longer.provided hospital benefits. A federal law requires that a hospital screen any patient who comes to an emergency department, to determine whether an emergency medical condition exists. If so, the hospital must stabilize the patient and may not generally transfer the patient to another hospital without the consent of the patient. One way S.R.S. hoped to encourage hospitals to provide care for GA recipients was to increase the payment rates for Medicaid. This would increase the federal funds received by the hospitals, thus at least theoretically giving them more flexibility to provide free care to people on GA. Another federal program, disproportionate share payments of additional dollars paid to those hospitals who serve an unusually high' number of low income patients, is described in the record, but its significance in MediKaii planning is not mentioned,
“33. The plaintiffs’ position, in effect, seems to be that S.R.S. must provide all necessary medical assistance to the needy. Thus, Plaintiffs contend that the Secretary has no discretion as to the amount or type of medical aid to be provided. There is no authority for that position. Neither the state constitution nor our state statutes mandate that S.R.S. provide assistance on an individual basis or meet in full .measure all the legitimate needs of each recipient. See Bernstein v. Toia, 43 N.Y.2d at 348. Plaintiffs here have failed to establish that the MediKan modifications were not l-easonably expected to provide a fair measure of assistance to the GA population as a whole.”
As we stated in State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 644, 822 P.2d 1033 (1991), “[P]ublic assistance funds are ever in short supply, and public policy demands they be restricted to those without resources of their own.” It is unfortunate that lean financial times for State revenues coincide with increased demand for public assistance, but such is inevitable.
The result reached herein does not mean that there is no point at which reduction in benefits and increases in eligibility requirements would ever be violative of Article 7, § 4 of the Kansas Constitution.
We turn now to the issue of whether the proposed amendments are violative of the Equal Protection Clauses of the Kansas and United States Constitutions.
Plaintiffs claim that defendant’s acts violate the Equal Protection Clause of the 14th Amendment to the United States Constitution and the comparable provision of Section 1 of the Bill of Rights of the Kansas Constitution. Specifically, plaintiffs’ argument is that defendant may not constitutionally reduce benefits or restrict eligibility under GA/Medikan while continuing to provide a large array of benefits to those who qualify for the federal programs such as SSI, AFDC, or Medicaid. Plaintiffs contend that the GA population is as needy as those who qualify for the federal programs, yet the latter receive significantly greater assistance.
In support of tlieir contentions, plaintiffs state:'
“Moreover, it must be kept in mind that the state is not required to participate in the federal AFDC and Medicaid programs. If the state does elect to participate in these programs and receive the federal funds which they make available, then it must comply with the federal standards for those programs. Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 5, 620 P.2d 1140 (1980), rehearing denied, modified 228 Kan. 802, 623 P.2d 505 (1981); Whisler v. Whisler, 9 Kan. App. 2d 624, 629, 684 P.2d 1025 (1984). However, it is the state, not the federal government, which chooses to provide AFDC and Medicaid benefits to needy Kansans, and it is the state which determines the level of benefits to be provided under these programs, within the parameters established by the federal government as a condition of its financial participation. Unlike SSI, which is totally administered and funded by the federal government, AFDC and Medicaid are simply two programs which the defendant may elect to utilize in the course of carrying out her statutory and constitutional mandates. It is these state law mandates, rather than the purposes of the federal assistance programs, against which the legitimacy of the defendant’s actions must be measured.”
The 14th Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Section 1 of the Bill of Rights of the Kansas Constitution is given much the same effect. Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987). The equal protection guarantee does not preclude the State from classifying persons for purposes of legislation, but it does require that persons similarly situated be treated alike. Stephenson v. Sugar Creek Packing, 250 Kan. 768, Syl. ¶ 2, 830 P.2d 41 (1992). The United States Supreme Court has described equal protection as a concept which “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974).
The district court held that there was no indistinguishable class between those who had eligibility under one of the federal programs and those who did not meet the criteria of eligibility therefor and were accordingly seeking GA and Medikan benefits. Because of this, there was no need to determine whether the rational basis test, the heightened scrutiny test, or the strict scrutiny test should be utilized in determining the issue. See Stephenson, 250 Kan. 768, for a discussion of the three tests. We agree. In seeking to satisfy particular federal goals, Congress has authorized programs designed to provide assistance to particular categories of individuals. The federal government fixed the parameters within which the programs operate. No state is required to participate. If a state elects to do so, its program must comply with the federal requirements. If a state comes under one of the programs, considerable federal funds are supplied toward the expenses of operation. Plaintiffs do not meet the eligibility requirements which are ultimately controlled by the federal government but administered through the state. No federal agencies are parties to this litigation, and no equal protection challenge is made to their requirements for eligibility or levels of benefits.
Plaintiffs, rather, contend that participation in the federal programs requires the State to grant the same level of benefits to needy persons not eligible for any of the federal programs. No persuasive authority is presented in support of this contention. We conclude no viable equal protection issue has been raised herein.
We find no error or abuse of discretion in the district court’s denial of injunctive relief to plaintiffs and its entry of judgment in favor of defendant.
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Per Curiam:
This an original proceeding in discipline against George Robert Deeds, an attorney duly admitted to the practice of law in Kansas. A hearing panel of the Kansas Board for Discipline of Attorneys unanimously found violation of Disciplinary Rule 6-101(A)(2) (1993 Kan. Ct. R. Annot. 227), MRPC 1.2(c) (1993 Kan. Ct. R. Annot. 260), MRPC 1.3 (1993 Kan. Ct. R. Annot. 263), MRPC 1.4(b) (1993 Kan. Ct. R. Annot. 267), and MRPC 1.16 (d) (1993 Kan. Ct. R. Annot. 304).
The panel made the following findings of fact:
“1. George Robert Deeds is an attorney at law, Kansas Attorney Registration No. 04852. His last registration address with the Clerk of the Appellate Courts of Kansas is 375 North Woodlawn, Wichita, Kansas 67208.
“Count I
“2. In September of 1986, George Robert Deeds was retained by Karen S. Drury to file a divorce action on her behalf, her stated goal being to have the matter concluded by December, 1986. By October 8, 1986, Mr. Deeds had been given a list of property and values.
“3. No divorce action was filed by Mr. Deeds. On December 4, 1986, Mr. Drury filed a divorce action and obtained Ex Parte Temporary Orders which were served on Ms. Drury. Mr. Deeds entered his appearance for Ms. Drury, as Respondent in the divorce action, on December 23, 1986.
“4. By Journal Entry and Decree of Divorce dated February 23, 1987, Ms. Drury was awarded alimony in the amount of $15,000.00 with no interest if paid within thirty (30) days and interest at the statutory rate thereafter. The alimony was a judgment and she was granted a lien on the real estate located at 1225 West 57th Street North, Wichita, Kansas, which was set aside to her husband.
“5. On February 24, 1987, Ms. Drury went to Mr. Deeds’ office and, upon his advice, signed a Quit Claim Deed on the real estate in which she had, the day prior, been granted a lien. The Quit Claim Deed did not contain any reservation or exception concerning her lien.
“6. Mr. Drury wanted to borrow money and mortgage the real estate on which Ms. Drury had a lien. Part of the loan proceeds would be used to make a partial payment on the alimony awarded to Ms. Drury. On April 9, 1987, after consulting with Mr. Deeds, Ms. Drury signed a Subordination Agreement to Arkansas Valley State Bank and signed a document entitled Acknowledgement’ in which she agreed to allow her husband to pay $7,500.00 in lump sum on the alimony and to pay interest only on the remaining balance at the rate of 8% for ten (10) years.
“7. Mr. Deeds did not review the Subordination Agreement prior to advising Ms. Drury.
“8. By letter dated October 30, 1988, Mr. Drury wrote to Mr. Deeds indicating he was contemplating bankruptcy and discharging the remaining alimony due to Ms. Drury. He also made some charges concerning Ms. Drury’s personal conduct. Mr. Deeds failed to provide a copy of the letter to Ms. Drury and failed to inform her of its receipt.
“9. During this same time period, Mr. Drury failed to make some interest payments to Ms. Drury. In November, 1988, Ms. Drury contacted Mr. Deeds for assistance in collection. In January of 1989, Mr. Deeds sent a Quit Claim Deed to Mr. Drury granting Mr. Drury’s interest in the real estate to Ms. Drury.
“10. Mr. Drury returned the Quit Claim Deed to Mr. Deeds having marked it ‘VOID’. He also sent a letter to Mr. Deeds’ office which was written to Ms. Drury. Mr. Deeds failed to forward this letter to Ms. Drury and failed to inform her of its receipt. In the letter, Mr. Drury stated: ‘My support will end in bankruptcy court. Go ahead Bob Deeds pass your judgement.’
“11. On February 21, 1989, Richard Drury filed bankruptcy. Ms. Drury called Mr. Deeds and sent him the information she had received, including a Notice for Meeting of Creditors. Thereafter, when Mr. Deeds claimed he had not seen the information, she hand delivered a copy of the same documents to his office.
“Ms. Drury also had several telephone conversations with Mr. Deeds concerning the bankruptcy and the money owing to her from Mr. Drury. Mr. Deeds assured her there was no cause for concern, that her interest was protected and that she may get the house back to satisfy the amount owing to her.
“Mr. Deeds did not review the bankruptcy file to ascertain whether Mr. Drury was attempting to discharge his obligation to Ms. Drury as he had threatened to do in the October 30, 1988, letter to Mr. Deeds and the January 10, 1989, letter to Ms. Drury which was mailed to Mr. Deeds.
“12. Mr. Drury was granted a discharge in bankruptcy on November 27, 1989.
"13. Mr. Drury had paid nothing further to Ms. Drury after the filing of the bankruptcy. Accordingly, in November of 1990, Ms. Drury requested that Mr. Deeds go to court to collect her money. He agreed to do so. No action was taken by Mr. Deeds. No court action was initiated. Mr. Deeds failed to return numerous telephone calls from Ms. Druiy.
“14. Four (4) months later, in March of 1991, Ms. Drury contacted Mr. Deeds outlining her desired course of action. She indicated that her daughter was buying the real estate from Mr. Druiy and that an escrow had been established. She indicated she would like to put a hold on the money being paid to Mr. Drury through this escrow.
“15. Three (3) months later, Mr. Deeds had still taken no action. Ms. Druiy wrote to Mr. Deeds. By letter dated June 15, 1991, she made reference to her request in March and informed Mr. Deeds that action was long overdue. She requested that he take the specific action previously requested.
“16. One (1) month later, Mr. Deeds had still taken no action. Ms. Druiy again wrote to Mr. Deeds. By letter dated July 12, 1991, sent by certified mail, Ms. Drury informed Mr. Deeds that if she did not hear from him by July 22, 1991, their professional relationship would be terminated.
“17. On Sunday, July 21, 1991, Mr. Deeds called Ms. Drury. He apologized, explained that he had been busy, that his wife was ill and promised to call in one (1) week. Mr. Deeds did not call.
“18. At no time did Mr. Deeds advise Ms. Druiy concerning and, in fact, did not know, the time limitations on taking action on her judgment. On February 27, 1992, Ms. Drury’s judgment became dormant.
“Count II
“19. By letter dated February 17, 1992, Ms. Drury filed a complaint with the Disciplinary Administrator’s Office. By letter dated March 3, 1992, Mr. Deeds was provided a copy of the letter of complaint and a written response was requested within ten (10) days.
“On March 17, 1992, the matter was referred to John S. Seeber for investigation. Mr. Seeber notified Mr. Deeds of his role and requested a written response within ten (10) days.
“By letter dated March 26, 1992, Mr. Deeds denied each and every allegation. Mr. Seeber requested a more specific response which Mr. Deeds provided in a letter dated April 17, 1992.
“20. Prior to responding to the disciplinary complaint filed by Ms. Druiy, Mr. Deeds indicated to Mr. Seeber that he had reviewed his file maintained in the Drury matter and had reviewed the bankruptcy file maintained by Daniel PI. Phillips, the attorney who represented Richard Drury in the bankruptcy.
“In his letter of April 17, 1992, Mr. Deeds denied he ‘ever received copies concerning the bankruptcy of Mr. Drury while that case was pending.’
“On June 17, 1992, during an interview with Mr. Seeber, Mr. Deeds indicated that notice of the bankruptcy had been sent to him by Mr. Drury.
“Mr. Deeds’ file contained two (2) copies of the Notice for Meeting of Creditors dated February 22, 1989, one of which was stapled to an envelope postmarked March 30, 1989, with Ms. Drury’s return address.
“21. In his letter of April 17, 1992, Mr. Deeds denied receiving any letter from Ms. Drury in which she outlined her desired course of action. He confirmed this position during the interview on June 17, 1992. He stated that when he denied this he thought Ms. Drury was stating she sent him a letter in November of 1990. The language of the letter of complaint is clear and does not state that a letter was sent in November of 1990.
“In the same paragraph, Mr. Deeds denied that Ms. Drury ever informed him that her daughter was buying the real estate from Mr. Drury [or that] payments were being made through an escrow.
“Mr. Deeds’ file contained the letter of June 15, 1991, from Ms. Drury which set out the desired course of action and made reference to the escrow. It further referenced a contact in March in which the same information had been provided.
“22. In his letter of April 17, 1992, Mr. Deeds stated that he suggested several times to Ms. Drury that other counsel would be appropriate. During the interview on June 17, 1992, Mr. Deeds stated that he had begun suggesting this in January of 1991.
“In her letter of June 15, 1991, Ms. Drury requested that Mr. Deeds refer her to another attorney if he was too busy. In her subsequent letter of July 12, 1991, Ms. Drury makes reference to this earlier request. Further Mr. Deeds’ telephone call to Ms. Drury on July 21, 1991, in which he apologized for the delay and promised to call in one (1) week contradicts this assertion by Mr. Deeds.
“23. Mr. Deeds denied he ever represented Ms. Drury on collecting the alimony. He stated she never asked him to represent her in this capacity. The letters found in Mr. Deeds’ file from Ms. Drury contradict this assertion by Mr. Deeds.”
The panel then considered all matters in mitigation and aggravation. The panel unanimously recommended that pursuant to Supreme Court Rule 203(a)(3) (1993 Kan. Ct. R. Annot. 162), respondent be censured by the Supreme Court and that the Supreme Court not publish the censure. Respondent did not file any exception to the report, findings, and recommendations of the State Board for Discipline of Attorneys.
Respondent appeared in person and by and through his attorney, D. Lee McMaster. His attorney requested that this court adopt the recommendation of the panel.
The court, having considered the record, the report of the panel, the statements of counsel, and matters submitted in mitigation and aggravation, finds that respondent should be disciplined by public censure.
It is Therefore Ordered that George Robert Deeds be and he is hereby disciplined by public censure for his violations of the Code of Professional Responsibility.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the cost herein be assessed to respondent.
Holmes, C.J., not participating.
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The opinion was delivered by
Davis, J.:
The defendant, Rose Marie Smith, was convicted following a jury trial of two counts of attempted second-degree murder and one count of kidnapping. On appeal, she contends that the two attempted second-degree murder charges are mul-tiplicitous. She raises two claims of error involving the court’s instructions to the jury. Finally, she claims that the trial court abused its discretion in sentencing her to a controlling term of 20 years. Finding no reversible error, we affirm.
The defendant’s convictions arise out of events that occurred on July 13, 1991, in Halstead. The defendant had met the victim, Benedict Raya, in 1989. At the time of the offenses, they had lived together on and off for about a year and a half. The police had been called several times in response to domestic disputes dui'ing 1989 and prior to the event giving rise to the present convictions. The defendant and Raya were not living together at the time of the present offenses.
The defendant asked Raya to leave and took him to a motel after a dispute occurred between them in March 1991. Raya could not find his glasses and other belongings after arriving at the motel. He testified that the defendant called him on July 10 and told him that he had left his glasses at her house. He stated that she told him she was no longer angry, that they could be friends, and that he could come by and pick up his glasses. Shortly after receiving that telephone call, Raya received a threatening call from Albert McClelland, warning him to stay away from the defendant because she was “his woman.”
Before Raya went to work on the 3:00 to 11:00 shift on July 12, he left a note on the defendant’s door, telling her that he would be over that night to get his glasses. After he got off work, Raya returned to his motel room, drank, and watched television until about 1:00 a.m. He then walked over to the defendant’s house, believing she would be home from her work about 1:00 a.m.
No one responded to Raya’s knock at the door. When he saw a car coming, he hid under a car parked in the defendant’s yard because he was afraid McClelland or Pete Villarreal would be with the defendant. McClelland and the defendant got out of the cai\ Raya crawled out from his hiding place when McClelland saw Raya’s feet sticking out from under the car. Raya told them that he had come to get his glasses. McClelland told him to leave the area, but the defendant intervened and invited Raya into her house.
The defendant brought Raya his glasses and offered him a drink. The three of them sat in the living room having drinks. Raya and the defendant sat on the couch. According to McClelland, the defendant then started motioning for him to get an axe handle that was hanging on the wall behind him. McClelland initially shook his head no, but finally reached up and took it off the wall. After they each had a couple more drinks, the defendant began motioning for McClelland to “come on, come on . . . come over there.” McClelland then got up and hit Raya five or six times on the head and shoulders with the axe handle. The defendant was “egging [McClelland] on” as he hit Raya, stating, “Hit him again. Kill him. Hit him again.”
McClelland eventually quit hitting Raya, and the defendant helped Raya get up and go into tire bathroom. As McClelland was fixing another drink, he heard the defendant say, “He’s getting away.” The defendant told McClelland to “get him.” McClelland went outside, got in his car, and went to his own house, where he fixed another drink. He testified that he was trying to “kill some time” so the defendant would believe he was out looking for Raya.
Meanwhile, the defendant had called Pete Villarreal, an old friend of hers, told him Raya was “lurking around again,” and asked Villarreal if he could come over. He did so, and when he arrived, he saw the defendant covered with blood and cleaning up blood from the floor. The defendant told Villarreal that McClelland had just “knocked the hell out of [Raya], and he’s out looking for him.” Villarreal got in his car and started looking for Raya too.
Villarreal spotted Raya walking on the street, but when Raya saw Villarreal, Raya disappeared. Eventually, Raya, Villarreal, and McClelland all ended up at the defendant’s house. Raya sat in the bathtub while the defendant wiped blood off of him. Mc-Clelland went into the kitchen to fix another drink and heard “whack, whack, whack,” several times. He returned to the bath room to find Villarreal reaching through the bathroom window, hitting Raya on the head with a stick.
According to McClelland, he entered the bathroom and saw the defendant, Raya, and Villarreal struggling over a knife. McClelland testified that the defendant was hitting Raya in the groin during the struggle over the knife. According to Villarreal, McClelland hit Raya on the neck with a hatchet. When Raya tried to defend himself against the hatchet, Villarreal hit him with a stick. Villarreal saw a knife lying by Raya’s feet.
Eventually, Raya lay immobile on the floor. The defendant checked Raya’s pulse and said, “He’s awful tricky. You can’t trust him.” According to McClelland, the defendant “was standing there telling him just to lie down and die. . . . And she walked into the other room, got her pistol, came up there and put it to [Raya’s] head and pulled the trigger and it didn’t go off. ... It just clicked.” The defendant made some comment about “the damned thing won’t work when you want it to.” The defendant then put the gun down, came back, checked Raya’s pulse and said, “Well, he’s dead.”
The defendant or Villarreal said something about getting garbage bags to put the body in. Villarreal suggested they dump Raya’s body in Hutchinson “because that’s his home.” McClelland said he knew a place to “dump trash.” The defendant stated that she wanted to get a sharp knife so she could cut Raya’s body up into little pieces and “scatter him in the Arkansas River.” According to McClelland, he and Villarreal tied Raya’s hands, although it did not make much sense because they believed he was dead. McClelland also testified that they put a garbage bag over Raya’s head and one over his feet “[s]o we wouldn’t get blood all over the rest of the carpet and stuff.” They also wrapped Raya in blankets. McClelland, Villarreal, and the defendant loaded Raya into the back seat of the car McClelland was driving.
They decided to take the body to a sand pit near Hutchinson. McClelland, Villarreal, and the defendant got in the front seat of McClelland’s car, and McClelland drove Villarreal to get his car. McClelland and the defendant went to get gas, and Villarreal said he would meet them on the west side of town. At the gas station Raya sat up in the back seat; he had managed to free his hands and get the garbage bag off of his head. He was crying out, “Help me, they’re trying to kill me.” Raya kept asking the defendant, “Why?” She replied, “I want you dead. I want you out of my life.”
Villarreal did not meet them on the west side of town, so McClelland drove without him to an area outside of Hutchinson where McClelland had dumped trash before. On the way, the defendant repeated that she needed a sharp knife so that she could cut Raya up into little pieces so no one would find his body. McClelland told the defendant that he was just going to take Raya out and dump him. Raya kept repeating that he loved the defendant and kept asking her, “Why?”
As McClelland and the defendant were looking for a place to dispose of Raya, he managed to jump out of the car. McClelland immediately stopped the car. The defendant told McClelland to “hit him, finish him.” McClelland took his foot off of the brake and accelerated a little; the defendant grabbed the wheel, and while they both held the wheel the car struck Raya and knocked him into a field. After the car struck Raya, the defendant again began talking about needing to get a knife to cut up his body so it would not be found. They left Raya in the field and headed back toward town.
On the way, the defendant told McClelland to stop on a bridge so that she could dispose of the blankets, garbage bags, and rope. McClelland took the defendant home, and on the way she complained to McClelland that he could not do anything right. McClelland dropped off the defendant at her house and went home.
Raya survived the brutal attacks, gave statements to the police, and testified at trial. At trial he testified that he remembered McClelland hitting him over the head until he lost consciousness at the defendant’s house. When he came to, he heard someone saying “cut his throat,” and Villarreal cut Raya’s throat. Raya passed out again, and the next thing he remembered was someone saying to tie his hands and put a plastic bag over his head. He did not hear the defendant’s voice or notice her presence at that time. He then remembered waking up in the defendant’s bathtub, untied, and he may have pushed the defendant away before he got out of the house. He remembered running from house to house seeking help, but no one would answer their doors; trying to run down a road and being struck by a car; and someone say, “[S]hoot him and make sure he [is] dead,” and pretending that he was dead. He did not recall the defendant’s participation but recalled that he seemed to slip in and out of consciousness. When he was conscious, his vision was obstructed by blood.
MULTIPLICITY
The defendant argues that the State used a single wrongful act to support two charges of attempted second-degree murder, thereby violating her right against double jeopardy.
“Multiplicity exists when the State uses ‘a single wrongful act as the basis for multiple charges.’ [Citation omitted.] Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. [Citation omitted.] . . . Offenses are also not multiplicitous when they occur at different times and different places, because they cannot then be said to arise out of a single wrongful act.” State v. Howard, 243 Kan. 699, 703, 763 P.2d 607 (1988). . . .
“ ‘Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence. State v. Bourne, 233 Kan. 166, 168, 660 P.2d 565 (1983). If there is a “break in the action” or if “offenses occurred at separate times and in separate places,” the charges are not multiplicitous. Bishop, 240 Kan. at 653-54; see State v. James, 216 Kan. 235, 531 P.2d 70 (1975).’ ” State v. Warren, 252 Kan. 169, 175-76, 843 P.2d 224 (1992).
The State’s theory was that all violent acts against the victim Raya occurring in the residence constituted one count of attempted murder. Those violent acts occurring after Raya left the residence constituted the second count of attempted murder. In its closing argument, the State contended that the first attempted murder occurred before Raya sat up at the gas station and the second occurred after the defendant, McClelland, and Raya left the gas station. We are not asked to and do not determine if more than one count of attempted murder could have been charged on events at the residence.
We have held that “ ‘[w]here offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.’ ” Warren, 252 Kan. at 175. The evidence of record establishes that the first attempt occurred at the defendant’s home, and all of the perpetrators believed they had been successful in their attempt to Idll Raya. The second attempt occurred later and at a different location, near the Hutchinson sand pit. Significantly, it also occurred after a “break in the action” with respect to the first attempted murder. See State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987).
The defendant cites several cases in support of her claim that the charges were multiplicitous, but each involved a single, continuous act. State v. Racey, 225 Kan. 404, 409, 590 P.2d 1064 (1979) (continuing unbroken act of force could not support both aggravated assault and kidnapping charges); State v. Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978) (continuous multiple sexual assaults on one victim by one defendant in the course of one hour, separated only by a few minutes, would not support multiple convictions for the same crime, but would support convictions of kidnapping, rape, and oral sodomy); State v. Lassley, 218 Kan. 758, 761-62, 545 P.2d 383 (1976) (defendant kidnapped victim for purpose of committing rape; same act of force could not support additional charge of aggravated assault).
The case before us is more comparable to State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), and State v. James, 216 Kan. 235, 531 P.2d 70 (1975). In Games, the defendant, the victim, and a man named Pennington were at a club. A fight broke out outside the club and the defendant fired a shot that struck the victim. The three of them then got into a car and eventually ended up out in the country. Pennington put a gun to the victim’s head; he then stabbed her with a knife and pushed her out of the car. He instructed the defendant to kill her. The defendant stabbed the victim several times, after which Pennington and the defendant took the victim’s clothes and drove the car over the victim several times. The victim survived this brutal attack. The defendant was convicted of two counts of aggravated battery, one count of aggravated robbery, and one count of attempted murder. On appeal she argued, inter alia, that the two aggravated battery counts were multiplicitous with the attempted murder count because there was one continuous series of events and the shooting and stabbing served as the overt acts to support the attempted murder charge. 229 Kan. at 372. We held that the shooting was separate and distinct from what occurred later in the field, several miles away. The victim entered the car, presumably to be taken to a hospital for treatment. 229 Kan. at 373. We held that Count II, charging aggravated battery by stabbing, was multiplicitous with the attempted murder charge because the victim was not stabbed until the car stopped in a remote field where she was stabbed several times, disrobed, run over several times, and left to die. Without the stabbing and running over, there likely would have been no attempted murder. 229 Kan. at 373-74.
In this case, as in Garnes, the acts at the defendant’s house that amounted to attempted murder were separate and distinct from what occurred at the Hutchinson sand pit. As in James, if nothing more had happened in the field, the events that occurred before the stop at the gas station would have supported a charge of attempted murder. The two acts of attempted second-degree murder were committed separately and severally, at different times and at different places, and the charges may not be said to arise out of the same wrongful act. Thus, the charges are not multiplicitous.
INSTRUCTIONAL ERROR
A. Instruction on Voluntary Intoxication
The defendant requested the court to instruct the jury in accordance with PIK Crim. 3d 54.12-A regarding voluntary intoxication. The trial court refused to instruct the jury on voluntary intoxication, finding no evidence to support such an instruction.
The defendant argues that the evidence that she had consumed several drinks, had a blood alcohol concentration of .09 five to six hours after the last encounter with the victim, and was semiconscious and non-responsive to pain several hours after the last encounter with the victim required the court to instruct the jury on voluntary intoxication.
“[A] defendant is entitled to an instruction on his or her theory of the case even though the evidence is slight and supported only by defendant’s own testimony.” State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987). Voluntary intoxication may be a defense to a specific intent crime such as attempted second-degree murder, and such an instruction is required if there is evidence to support it. State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984).
The evidence necessary to support the giving of a voluntary intoxication instruction, however, is “evidence of intoxication upon which a jury might find that a defendant’s mental faculties were impaired to the extent that he [or she] was incapable of forming the necessary specific intent required to commit the crime.” State v. Shehan, 242 Kan. 127, Syl. ¶ 5, 744 P.2d 824 (1987).
The only evidence that the defendant was intoxicated was evidence of her condition between 11:00 a.m. and noon on July 13. This evidence does not require that the court instruct the jury on voluntary intoxication because it is evidence of her condition five to six hours after her last contact with the victim. The defendant did not testify, and there is no evidence about her conduct between the time that she arrived home early in the morning on July 13 and the time the authorities found her unresponsive about 11:00 that morning. ■ .
. Although there is evidence that the defendant consumed several drinks before and during the time she was with Raya, there was no evidence- that she was- so intoxicated that it impaired her ability to form.the necessaiy specific intent. There was only evidence that she and her companions had consumed several drinks over a period of several hours. Viewing the evidence in a light most favorable to the defendant, there was evidence that she consumed approximately seven mixed drinks between 11:00 p.m., when she got off work, and 6:00 a.m., when they arrived out in the countiy to dump Raya’s body. There was evidence that her blood alcohol concentration was .09 between 11:20 a.m. and 12:10 p.m. on that day and that she was not responsive to verbal or painful stimuli at around 11:00 a.m.
There was considerable evidence that the defendant formed precisely the requisite intent. It was the defendant who prompted McClelland to start beating Raya with an axe handle. As Mc-Clelland hit Raya, the defendant told him, “[H]it him again, kill him.” When Raya escaped from her house, she sent McClelland to “get him” because Raya was getting away. She called Villarreal to help because Raya was “lurking around again.” She made efforts to conceal evidence of the crime at her home by cleaning up the blood and upon her return from the Hutchinson sand pit by dropping evidence over the bridge.
As the men struggled over the knife, she participated by striking Raya repeatedly in the groin. When Raya lay immobilized on the floor, she touched his pulse to make sure he was dead, commenting that he was “tricky” and could not be trusted. She kept telling Raya to die and eventually got a gun, held it to his head, and pulled the trigger. When it did not fire, she expressed dissatisfaction that the “damned thing won’t work when you want it to.” She again checked Raya’s pulse and pronounced him dead. Her actions at the Hutchinson sand pit indicate that she had presence of mind to grab the wheel, direct the car toward Raya, and strike him. After they hit him with the car, she again talked about wanting a knife so she could cut up his body into little pieces. She made efforts to conceal the crime by disposing of the blankets and bags over a bridge on her way home. She complained that McClelland could not do anything right. Under these circumstances, there is very little, if any, doubt that the defendant had the necessary intent to carry out the crimes for which she was convicted. There was not sufficient evidence to warrant an instruction on voluntary intoxication. The defendant has not met her burden of showing that she was so intoxicated that her mental faculties were so impaired that she could not form the requisite intent. State v. Minski, 252 Kan. 806, Syl. ¶ 3, 850 P.2d 809 (1993).
B. Self-defense
The defendant requested a self-defense instruction at trial based on a theory that she acted in self-defense as a result of the battered woman syndrome.
The defendant presented considerable evidence about the violent relationship between herself and Raya, one that often resulted in the police being called to resolve disputes. Dr. Howard Brodsky, a licensed clinical psychologist, also testified about the battered woman syndrome. He had evaluated the defendant and concluded that she “fit the diagnostic” pattern of post-traumatic stress disorder, of which the battered woman syndrome is a type.
We have addressed when a self-defense instruction is required in cases involving allegations of long-term domestic abuse of a defendant. Under such circumstances, a self-defense instruction is appropriate when “circumstances surrounding the killing were sufficient to create a reasonable belief in the defendant that the use of deadly force was necessary.” State v. Stewart, 243 Kan. 639, Syl. ¶ 4, 763 P.2d 572 (1988).
The defendant argues on appeal that because Raya was hidden under a parked car when the defendant arrived home in the early hours of the morning and because of the defendant’s history with Raya, “it is easy to see how and why she or any other reasonably prudent battered woman would have perceived that as an aggressive act requiring defense.”
The defendant’s argument ignores the two-pronged test this court applies to determine the propriety of a self-defense instruction, even in battered spouse cases.
“We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable — specifically, whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary.” Stewart, 243 Kan. 639, Syl. ¶ 5.
There is no evidence about the defendant’s actual belief at the time of the attempted killing. We have evidence of her conduct and the effects of her conduct, but there is no evidence in the record that she believed it was necessary to kill Raya in order to protect herself.
There also must be some showing that such belief was reasonable. “[S]ome showing of an imminent threat or a confrontational circumstance involving an overt act by an aggressor [must be made]. There is no exception to this requirement where the defendant has suffered long-term domestic abuse and the victim is the abuser.” Stewart, 243 Kan. 639, Syl. ¶ 4. The only arguable “overt act” by Raya in this case is that he was hiding under the car when the defendant arrived home about 1:00 a.m.
The defendant has not satisfied the criteria this court specified in Stewart for a self-defense instruction in an action involving an allegedly battered woman. The trial court, therefore, did not err in refusing to instruct the jury on self-defense.
SENTENCE
The defendant argues that the trial court abused its discretion in sentencing her primarily because she was the least culpable of the three defendants and received a significantly longer sentence than McClelland or Villarreal. Villarreal had pleaded no contest to one count of aggravated battery, a class C felony, and the court imposed a sentence of 3 to 10 years. McClelland, on the other hand, had pleaded no contest to one count of attempted murder in the first degree, a class B felony, and no contest to one count of aggravated battery, a class C felony. The court sentenced McClelland to a term of 8 to 20 years for the attempted murder and to a concurrent term of 3 to 1Ó years for the aggravated battery. The defendant in this case was sentenced to two terms of 5 to 10 years for the attempted second-degree murder counts and 15 years to life for the kidnapping count. One attempted murder sentence was to be served consecutively to the remaining terms, which were to be served concurrently with each other, for a controlling term of 20 years.
Generally, “[t]his court will not disturb a sentence imposed by a trial court on the ground it is excessive, .provided it is within the statutory limits and within the realm of-the trial court’s discretion and not the result of partiality, prejudice, oppression, or corrupt motive.” State v. Stallings, 246 Kan. 642, Syl. ¶ 5, 792 P.2d 1013 (1990). Disparity in the sentences of the codefendants does not amount to abuse of discretion “where the trial court considers the individual characteristics of the defendant being sentenced, the harm caused by that defendant, and the prior criminal conduct of that defendant." Stallings, 246 Kan. 642, Syl. ¶ 6.
The defendant argues that she did not inflict the harm caused to Raya, but that McClelland and Villarreal performed the actual violent acts. She also argues that these were her first felony convictions. Thus, she argues that under Stallings, her longer sentence is not justified. She also argues that State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992), requires the trial court to articulate on the record its reasons for imposing a longer sentence on her than on McClelland or Villarreal.
In Bailey, two defendants convicted of the same crimes received identical sentences, but one was to be served consecutively and the other concurrently. The result was that one defendant was required to serve 45 years before he was eligible for parole while the other had to serve only 30 years. 251 Kan. at 529. We noted in Bailey that a trial court is not restricted to imposing a sentence less than or equal to a codefendant’s sentence, but that the legislature’s new sentencing guidelines expressed an intent that similarly situated defendants should receive similar sentences. The trial court in Bailey had “summarily dismissed the difference in parole eligibility by saying the codefendant’s sentence was not relevant.” 251 Kan. at 531. Given the record’s indication that the defendant receiving the longer “actual” prison term was less culpable than the other defendant, this court held the trial court erred in not considering the disparity and remanded for resentencing. The court directed that “[t]he trial court . . . must consider the sentence given the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record.” 251 Kan. at 531.
At the outset, we note that McClelland and Villarreal were not sentenced for the same offenses nor the same number of offenses. Although McClelland pleaded guilty to one count of attempted first-degree murder, his sentence of 8 to 20 years was longer than defendant’s 5- to 20-year sentence for one count of attempted second-degree murder. McClelland and Villarreal each also pleaded guilty to aggravated battery, for which they received 3-to 10-year sentences, but the defendant was not convicted of aggravated battery, so there is no comparable charge. The defendant’s remaining attempted second-degree murder conviction drew a sentence identical to her other attempted murder conviction of 5 to 20 years. Her remaining conviction was for a class B felony, kidnapping. Villarreal and McClelland had no comparable convictions.
Although the trial court did not expressly comment on the other defendants’ sentences, the trial court here was aware of the sentences imposed on Villarreal and McClelland. The same judge presided over their sentencing as presided over the defendant’s sentencing. Moreover, at the sentencing hearing, defense counsel argued that the punishment given to McClelland and Villarreal should ‘Toe used as a measuring stick about what an appropriate punishment for Rose Smith would be.” Defense counsel reminded the court what McClelland’s and Villarreal’s sentences were and argued that the defendant’s limited involvement entitled her to a less severe sentence.
Although the court never expressly stated that it was imposing a more severe sentence on the defendant because of any particular factors, the record clearly indicates that the court considered the defendant’s role in the offenses as her role related to the other defendants. The court noted that the defendant invited Raya to her home and that she began indicating to McClelland that he should get the axe handle and hit Raya with it. The court noted that Villarreal would not have even been in the same city that night if the defendant had not called him and asked him to come over. The court also noted that the defendant urged Villarreal to begin attacking Raya. The court perceived the evidence to support the conclusion that the defendant began cleaning blood off the victim to “keep him there until the other two men came back.” The court stated that “if it had not been for this defendant, Mr. Villarreal and Mr. McClelland probably would not have been involved in this episode at all.” The court also noted that it was at the defendant’s urging that McClelland tried to run over Raya and that it was McClelland who eventually terminated the episode by taking the defendant home. It was the defendant who asked McClelland to stop so she could dispose of bloody evidence from the car, and it was the defendant who- chastised McClelland for being ineffectual. The court concluded that “this defendant was at the base and the cause of this episode — these episodes.”
The defendant received a much harsher sentence than Mc-Clelland or Villarreal. The defendant was convicted of different crimes, however, and the court stated that it perceived her to be the driving force behind the initiation and continuation of the offenses. Given the differences in crimes and the court’s statements on the record, Bailey’s requirements are satisfied. Under these circumstances, the disparity is not “the result of partiality, prejudice, oppression, or corrupt motive. Stallings, 246 Kan. 642, Syl. ¶ 5.
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The opinion of the court was delivered by
Holmes, C.J.:
This case involves an appeal and cross-appeal from judgments of the district court granted in an action on a promissory note secured by a real estate mortgage upon property in Sedgwick County. The plaintiff, The Cadle Company II, Inc., (Cadle) appeals from an order granting- summary judgment to the defendant based upon a finding that Cadle’s action was barred by the state statute of limitations. The defendant, Merwin P. Lewis (Lewis), cross-appeals from a judgment of the district court in favor of the plaintiff on the defendant’s claim for statutory damages and attorney fees sought pursuant to K.S.A. 58-2309a. The Court of Appeals affirmed the district court judgments in an unpublished opinion decided March 26, 1993. We granted the petition for review filed by Cadle on the single issue of whether the state five-year statute of limitations or the federal six-year statute of limitations applies to this case. We denied the petition for review filed by Lewis on his claim for statutory damages and attorney fees.
The facts, as they pertain to the issue of summary judgment, are uncontroverted. On July 2, 1985, Lewis executed a promissory note to the Stillwater (Oklahoma) Community Bank (Stillwater) in the amount of $82,297.64, which was secured by a mortgage on Kansas property. The note became due on October 2, 1985, but was not paid.
Stillwater was taken over by the Federal Deposit Insurance Corporation (FDIC) on or about October 25, 1986. Between April 30, 1986, and November 13, 1986, the FDIC purchased Still-water’s assets. The July 2, 1985, note was overdue at the time it was acquired by the FDIC. Cadle purchased the July 2, 1985, note and mortgage from the FDIC on October 20, 1989. Cadle and the FDIC had notice that the note was overdue.
On June 21, 1991, Cadle instituted an action in the District Court of Sedgwick County to obtain judgment on the July 2, 1985, note and to foreclose the mortgage on the Kansas property.
On July 20, 1991, Lewis made a written demand on Cadle that it enter satisfaction of the July 2, 1985, mortgage pursuant to K.S.A. 58-2309a. Cadle did not enter a satisfaction of the mortgage, and Lewis then filed a counterclaim, asking for $500 statutory damages and $11,461.46 in attorney fees.
Thereafter, Lewis filed a motion for summary judgment, contending that the action by the plaintiff was barred by the Oklahoma five-year statute of limitations. On October 3, 1991, the district court granted Lewis’ motion for summary judgment, concluding that Cadle’s foreclosure action was barred by the five-year statute of limitations.
Lewis’ claim for damages for Cadle’s refusal to enter satisfaction of the July 2, 1985, note was tried to the court and the court concluded the July 2, 1985, note was not paid by a subsequent April 22, 1986, note which had been executed by Lewis. The court further concluded that the July 2, 1985, note was not paid by virtue of the running of the statute of limitations. Judgment was accordingly entered for the plaintiff on the defendant’s amended counterclaim.
Lewis appealed from the judgment denying recovery on his counterclaim, and Cadle cross-appealed from the summary judg ment rendered against it. The Court of Appeals affirmed the district court on both issues.
As previously stated, we granted Cadle’s petition for review on the single issue of whether the state five-year statute of limitations or the federal six-year statute applied to this action.
The parties agree that the state statute of limitations would bar a claim five years from October 2, 1985, the date of default, and, if it applies, plaintiff’s action is barred. However, if the six-year federal statute is applicable, then plaintiff’s action was timely filed.
The general statute of limitations for actions on contract commenced by the United States, 28 U.S.C. § 2415(a) (1988), states:
“Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues . . . .” (Emphasis added.)
The statute of limitations for actions commenced by the FDIC as a conservator or receiver, 12 U.S.C. § 1821(d)(14)(A) (Supp. IV 1992), states:
“Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be — -(i) in the case of any contract claim, the longer of — (I) the 6-year period beginning on the date the claim accrues; or (II) the period applicable under State law.”
It is the contention of Cadle that the district court erred in applying the five-year Oklahoma statute of limitations in this case. Cadle maintains that the appropriate limitations statute is the six-year federal statute. Cadle relies upon both the general contract statute, 28 U.S.C. § 2415(a), and the specific statute applicable to the FDIC, 12 U.S.C. § 1821(d)(14)(A). Cadle reasons that because it was assigned the note by the FDIC, it succeeded to all the rights and remedies available to the FDIC, including the six-year limitations period. Cadle contends that its position is supported by federal common law, public policy, and state and federal case law.
Lewis disagrees, pointing out that the plain language of the federal statutes clearly limits their application to the United States and the officers and agencies thereof. It is his position that the statutes are clear and unambiguous and apply only to the parties specified in the statutes and that any extension of the statutes to cover others is unwarranted.
Much of Cadle’s argument is based upon what it contends is a logical extension of the D’Oench, Duhme doctrine first enunciated in D’Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676 (1942), and is supported by recent case law.
In D’Oench, Duhme, the Court held that the FDIC was immune from any defenses which were based upon secret or unrecorded agreements. The Court reasoned that the FDIC must be able to rely upon the records and books of failed financial institutions in its effort to protect the integrity of the United States banking industry. As such, the Court provided the FDIC with a broad estoppel defense to protect against fraud and misrepresentation by borrowers. D’Oench, Duhme, 315 U.S. at 458-60.
Eight years following the D’Oench, Duhme decision, Congress enacted 12 U.S.C. § 1823(e) (Supp IV 1992), which codified D’Oench, Duhme and broadened the already emerging doctrine. The act is broader than D’Oench, Duhme in its enforcement scope in that it applies to any agreement which is not in writing, not just agreements which are meant to mislead bank regulators. In addition to the writing requirement, the act requires that the agreement be executed contemporaneously with the underlying transaction, have approval by the bank’s loan committee, and be documented in the bank’s records. Today, both 12 U.S.C. § 1823(e) and the D’Oench, Duhme decision serve as a bar to most defenses or claims which diminish or defeat the FDIC’s right in an acquired asset. See Langley v. FDIC, 484 U.S. 86, 98 L. Ed. 2d 340, 108 S. Ct. 396 (1987). Through case law, the doctrine has been extended in various factual situations to assignees of the FDIC and other federal agencies.
While one of Cadle’s arguments for application of the federal statutes of limitations is based upon extension of the D’Oench, Duhme doctrine, the Court of Appeals was not impressed. It stated:
“Neither the D’Oench, Duhme doctrine nor its codification speak to the statute of limitations.
“So far, the only other court to rule on this issue has been the Oklahoma federal district court in Agrawal. Although that court felt that the D’Oench, Duhme doctrine applied in this type of case, the holding is very questionable in light of the stated purpose of that doctrine and the fact that nothing in the federal statutes indicates that the six-year statute of limitations is available in any case other than an action by the federal government.”
In addition to relying on the reasoning posited by the Court of Appeals decision, Lewis also maintains that statutes of limitation are procedural and as such are not assignable. In his brief, Lewis states the right to raise the applicable statute of limitations is a defense and belongs to the person against whom the claim is made — not to the person making the claim. However, this argument lacks merit and is simply misplaced. Cadle’s argument is not grounded on the question of which party has the right to assert the applicable statute of limitations; instead, Cadle argues present case law establishes that the federal limitations period applies to an assignee of the FDIC. Here, the facts áre not controverted on the particular issue before us, and the determination of which statute of limitations applies to the uncon-troverted facts is purely a question of law.
At the time the Court of Appeals decision was rendered, that court was aware of only one case, Mountain States Financial Resources v. Agrawal, 777 F. Supp. 1550 (W.D. Okla. 1991), which had addressed the precise issue before the court. However, our research indicates at least nine cases which have addressed this issue, five of which were decided prior to the Court of Appeals decision. The Court of Appeals found the holding in Agrawal, the seminal case on the issue of the application of the federal statute of limitations to an assignee of the FDIC, to be “very questionable” and declined to follow the case.
The facts in Agrawal are essentially the same as the facts now before us. The defendants executed several promissory notes to American Exchange Bank and Trust Company of Norman, Oklahoma, which was subsequently declared insolvent. The FDIC was appointed as the defunct bank’s receiver and eventually assigned the Agrawal notes to Mountain States Financial Resources Corporation. When that corporation filed suit to collect on the defaulted notes, the defendants asserted that the claims were barred by the Oklahoma five-year limitations period. The plaintiff contended that the six-year federal limitations period under 12 U.S.C. § 1821(d)(14)(A) controlled. The United States District Court for the Western District of Oklahoma disposed of the argument in short order, stating:
“Defendants argue that the six-year limitations period applies only to actions brought by the FDIC, not the FDIC’s assignees. Defendants offer no authority for this argument, other than their plain reading of the statute. They do not dispute that had the FDIC brought the action, the six-year limitations period would apply. An assignee stands in the shoes of the assignor, and acquires all of the assignor’s rights and liabilities in the assignment. This general principle and a strong public policy require that the FDIC’s assignee acquire the six-year limitations period provided by § 1821(d)(14)(A). [Citations omitted.] Thus, defendants’ argument that claims against them on the notes are time-barred is without merit.” 777 F. Supp. at 1552.
The court cited D’Oench, Duhme as one of the authorities for its holding.
Although the decision in Agrawal lacks any extensive discussion of the issue before the court, the case has been cited in most of the subsequent cases, the majority of which have held that the federal six-year statute of limitations does apply in actions brought by an assignee of the FDIC.
The next case to consider the issue was Thweatt v. Jackson, 838 S.W.2d 725 (Tex. App. 1992). The undisputed facts were stated by the court as follows:
“On January 4, 1984, Jackson executed a promissory note payable to the order of The People’s National Bank of Lampasas. The note matured on May 3, 1984, and Jackson failed to pay the amount due, thereby defaulting on the note.
“On April 18, • 1985, the Comptroller of the Currency closed People’s National Bank and named the Federal Deposit Insurance Corporation (“FDIC”) as receiver. As receiver, the FDIC became the holder and owner of Jackson’s note. That same date, the FDIC, in its corporate capacity, purchased Jackson’s note from the FDIC as receiver.
“On December 28, 1988, the FDIC sold Jackson’s note to Thweatt. By a letter dated December 13, 1989, Thweatt made a demand on Jackson for payment of the note. Jackson did not pay; therefore, Thweatt filed this suit against Jackson on April 15, 1991.” 838 S.W.2d at 726.
Jackson asserted that the action was barred by the Texas four-year statute of limitations, while Thweatt asserted the six-year federal statute controlled. The Texas Court of Appeals stated:
“[I]t is axiomatic that an assignee of a promissory note stands in the shoes of the assignor and obtains the rights, title, and interest that the assignor had at the time of the assignment. [Citatipns omitted.] Moreover, the as-signee of a debt ordinarily obtains all remedies which were available to the assignor against the debtor for the enforcement of the obligation. [Citations omitted.]
“Therefore, as an assignee of the FDIC, Thweatt obtained the FDIC’s claim to the amount due on the Jackson note, as well as the FDIC’s right to assert that claim in a court of law. There is no dispute that at the time it assigned the Jackson note to Thweatt, the FDIC had the right to sue Jackson on the note until April 18, 1991, by virtue of the six-year limitations period contained in section 1821. Thus, we conclude that Thweatt stood in the shoes of the FDIC and had the right to assert a claim on the promissory note to the same extent as the FDIC. Because the FDIC had until April 18, 1991, to file suit against Jackson on the note, Thweatt did too.” 838 S.W.2d at 727-28.
The court then discussed the public policy argument which has developed following D’Oench, Duhme in support of applying the federal statute of limitations. The court stated:
“In a closely related setting, the federál courts have allowed assignees to step into the shoes of the FDIC and benefit from its so-called ‘super-holder-in-due-course’ status granted by FIRREA, 12 U.S.C. § 1823(e) (Supp. I 1989). See Porras v. Petroplex Sav. Ass'n, 903 F.2d 379, 381 (5th Cir. 1990); FDIC v. Newhart, 892 F.2d 47, 49-50 (8th Cir. 1989). In so holding, the Eighth Circuit in Newhart reasoned that a transferee of a note is vested with such rights as the FDIC had therein at the time of the transfer. The court also gave the following public policy rationale for its conclusion:
‘In certain cases, such as the instant one, the FDIC may decide to sell returned assets after bringing suit for collection. Because these assets are usually nonperforming loans, there would be little or no incentive for prospective purchasers to acquire them if they were subject to the personal defenses of the obligors based on undisclosed agreements. If this avenue of cutting losses became unavailable to the FDIC, purchase and assumption transactions would become more expensive and thus, less likely to occur.’
Newhart, 892 F.2d at 50. By the same token, if assignees of the FDIC were not allowed to benefit from the six-year statute of limitations in FIR-REA, the FDIC would be forced to prosecute all notes for which the state statute of limitations had run, because such claims would be worthless to anyone else. Such a result would be contrary to the policy of ridding the federal system of failed bank assets.” 838 S.W.2d at 728.
Other cases involving similar factual circumstances which hold that the federal statute of limitations controls in an action by an assignee of a federal agency include: F.D.I.C. v. Bledsoe, 989 F.2d 805 (5th Cir. 1993); White v. Moriarty, 15 Cal. App. 4th 1290, 19 Cal. Rptr. 2d 200 (1993); Central States Resources v. First Nat. Bank, 243 Neb. 538, 501 N.W.2d 271 (1993); Jon Luce Builder v. First Gibraltar Bank, 849 S.W.2d 451 (Tex. App. 1993); Pineda v. PMI Mortg. Ins. Co., 843 S.W.2d 660 (Tex. App. 1992).
In Bledsoe, the issue again involved whether an action by the assignee of the FDIC was governed by the federal six-year statute of limitations or the shorter state statute. The United States District Court for the Northern District of Texas held the action was barred by the Texas four-year statute of limitations. On appeal, the Fifth Circuit reversed the District Court and held the federal six-year statute was applicable. Bledsoe argued that the language of the federal statutes was clear and did not extend to assignees of a federal agency. After a discussion of federal common law to the effect that “an assignee stands in the shoes of his assignor,” the extension of the D’Oench, Duhme doctrine, and public policy, the court stated:
“We hold that assignees of the FDIC and the FSLIC are entitled to the same six year period of limitations as the FDIC and the FSLIC. Transferring the federal six year statute of limitations from the FDIC and FSLIC to its assignees is consistent with the common law of assignment, furthers Congressional policy, and is supported by the cases extending the D’Oench, Duhme doctrine to private assignees.” 989 F.2d at 811.
In White v. Moriarty, the plaintiff as assignee of the FDIC asserted the federal six-year statute applied, while the debtor defendant argued for the shorter state statute. In finding that the federal statute controlled, the court stated:
“The six-year statute of limitations located in 12 United States Code section 1821(d)(14)(A) gives the FDIC the longer of six years or the applicable state statute of limitations in which to bring an action on a contract claim. Moriarty does not contest the applicability of section 1821 to the FDIC but argues that an assignee of the FDIC is bound by the state limitation period.
“In Mountain States Financial Resources v. Agrawal, supra, 777 F. Supp. 1550, the court confronted the precise issue presented in the instant case and found that the six-year federal statute of limitations passed to the as- signee with an assignment by the FDIC. (Id., at p. 1552.) The Mountain States court noted that an assignee generally ‘stands in the shoes of the assignor’ and referenced the strong public policy encouraging facilitation of the FDIC’s role. . . .
“Despite the paucity of case law on the issue, we agree with the courts holding that the FDIC’s assignee is entitled to the benefit of the federal statute of limitations in enforcing notes from failed banks.” 15 Cal. App. 4th at 1297-98.
The only cases we have found which do not follow the weight of authority as evidenced by the foregoing cases are Tivoli Ventures, Inc. v. Tollman, 852 P.2d 1310 (Colo. App. 1992) cert. granted June 7, 1993, and Federal Debt Management, Inc. v. Weatherly, 842 S.W.2d 774 (Tex. App. 1992). In both cases, the courts found that the federal statutes were clear and unambiguous and that the arguments based upon federal common law, public policy, or an extension of the D’Oench, Duhme doctrine were not applicable. The thread running through both cases was succinctly stated in Tollman: “If statutory language is plain and its meaning clear, the statute must be applied as written.” 852 P.2d at 1313.
Thus, we are faced with a case of first impression in which there is respectable authority for each party’s position. Under the circumstances, we conclude that the clear weight of authority, and the more acceptable reasoning, are on the side of the cases following the lead of Agrawal. We hold, for the various reasons set forth in the cases cited, that the action filed by Cadle, as assignee of the FDIC, is controlled by 12 U.S.C. § 1821(d)(14)(A), the federal six-year statute of limitations, and its action was timely filed.
One other collateral issue needs to be mentioned briefly. Throughout this proceeding, the question of whether Cadle had the status of a holder in due course has been raised. Considering the posture of this case before the district court and on appeal, such issue is of no consequence. Whether Cadle is a holder in due course is not controlling or relevant as to which statute of limitations applies in this case. If the state statute was applicable, the action was barred regardless of whether Cadle was a holder in due course, and if the federal statute controls, as we have determined, then Cadle had the right to bring this action even if not a holder in due course. Our determination of the appro priate statute of limitations does not hinge on the status of Cadle. Such status may become an issue on remand if the defendant asserts personal defenses that might be available if Cadle is not a holder in due course. We conclude that tire district court comments to the effect that Cadle was not a holder in due course were merely gratuitous and not binding upon further consideration of this case by the trial court. If the issue becomes relevant in further proceedings, it will be for the trial court to determine based upon the facts then before it.
The judgments of the Court of Appeals and the district court that plaintiff’s action was barred by the five-year statute of limitations are reversed, and the case is remanded to the district court for further proceedings on plaintiff’s cause of action. Other issues determined by the Court of Appeals, and not reviewed by this court, remain as determined by the Court of Appeals. | [
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On June 22, 1993, and November 18, 1993, complaints were filed with the Disciplinary Administrator’s office against Murray F. Hardesty, of Topeka, Kansas, an attorney admitted to practice law in the State of Kansas. The complaint filed on June 22, 1993, was docketed as a result of the United States Tax Court decision in which it was determined that respondent had defrauded the United States government by underpaying his income taxes. The complaint filed on November 18, 1993, alleges that respondent misappropriated funds in excess of $1,000,000 from the National Federation of State High School Associations, Robert F. Kanaby, and the Allied Companies, Inc. Investigations of the complaints were commenced by the Disciplinary Administrator’s office and have not yet been completed.
On December 1, 1993, Murray F. Hardesty, pursuant to Supreme Court Rule 217 (1993 Kan. Ct. R. Annot. 185), voluntarily surrendered his license to practice law in the State of Kansas.
This court, having examined the files and records of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Murray F. Hardesty be and he is hereby disbarred from the practice of law in the State of Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Murray F. Hardesty from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith shall comply with Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187).
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to respondent. | [
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The opinion of the court was delivered by
Six, J.;
This case concerns the effect of plaintiff Samuel Bright’s settlement with defendant Cargill, Incorporated (Cargill), on Bright’s $665,000 judgment entered by the trial court against LSI Corporation — Temporary Services & Placement Agency (LSI), the remaining defendant. The approach to our resolution of the dispute is found in K.S.A. 60-2105, which empowers us to render a final judgment as we deem justice requires.
Bright filed a personal injury action which was tried, appealed, and remanded in Bright v Cargill, Inc., 251 Kan. 387, 837 P.2d 348 (1992) (Bright I). After remand, Bright settled with Cargill, whose status as a possible active defendant and real party in interest was created by our reversal of the summary judgment in favor of Cargill. Cargill and Bright stipulated in their settlement that Cargill was Bright’s K.S.A. 44-503 statutory employer. Cargill paid Bright $2,500,000, Bright released Cargill, and Cargill was dismissed from the case. The trial court granted Bright’s motion to affirm the Bright I judgment against LSI, as modified. The modification was based on an agreement between Bright and LSI in June 1992 at the time Bright I was under advisement. LSI appeals. Cargill is not a party to this appeal.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion). The issue for review is whether the trial court erred in affirming the judgment against LSI as modified by the June 1992 settlement agreement. We are analyzing the relationship between Bright I and two settlement agreements. Our standard of review is unlimited. See City of Lenexa v. C. L. Fairley Constr. Co., 245 Kan. 316, 319, 777 P.2d 851 (1989). We find no prejudicial error and affirm.
Background
The underlying facts which gave rise to the case at bar appear in Bright I, which involved
“two separate appellate alignments. The first postures plaintiff Samuel Bright against defendant Cargill, Incorporated (Cargill). The second relates to defendant Labor Source, Inc., (LSI) and Bright.
“Samuel Bright’s common-law negligence claim arises from an industrial accident in which he sustained serious injury. Bright and his wife, individually and on behalf of their three children, sued Cargill, LSI (LSI is now known as LSI Corporation — Temporary Services & Placement Agency), and others not involved in this appeal. The claims of Mrs. Bright and the children were dismissed. Cargill prevailed on a summary judgment motion. The case proceeded to trial. The remaining defendants, other than LSI, settled with Bright before the case was submitted to the jury. The jury found LSI 40% at fault and Cargill 60% at fault and assessed Bright’s total damages at $5,730,500. The trial court reduced the pain and suffering award to $250,000 and entered judgment for Bright against LSI in the amount of $1,884,900.” 251 Kan. at 389-90.
Bright appealed the summary judgment granted to Cargill. The trial court had ruled that Cargill was a K.S.A. 44-503 “statutory employer” and, as such, was immune from suit under K.S.A. 44-501, the exclusive remedy provision of the Kansas Workers Compensation Act. LSI appealed the judgment entered against it on the jury verdict. We held'
“that disputed material facts exist in the resolution of Cargill’s K.S.A. 44-503 ‘statutory employer’ status. Summary judgment in favor of Cargill is reversed. Cargill’s statutory employer status is to be determined on remand.
“We affirm Bright’s judgment against LSI subject to a determination on remand that Cargill was Bright’s statutoiy employer. If Cargill is not Bright’s statutory employer, the judgment against LSI is reversed under Pizel v. Zuspann, 247 Kan. 54, 77, 795 P.2d 42 (1990).” Bright I, 251 Kan. at 390.
The June 1992 Agreement
Bright I was filed July 10, 1992. While the Bright I appeal was pending, Bright and LSI entered into a settlement agreement in June 1992 in which Maryland Casualty Company, LSI’s liability insurer, agreed to pay Bright $335,000 ($176,292 in a lump sum, the balance in a guaranteed annuity). The agreement further provided:
“2.4 If the judgment against [LSI] is affirmed on appeal, insurer will pay [plaintiff] an additional $665,000.00, which represents the remainder of its policy limits provided to [LSI]. [Plaintiff] will make no claim against [LSI] for any amount in excess of the $1,000,000.00 policy limits, nor will [plaintiff] make any claim for interest on any portion of the judgment. . . .
“2.5. Should a new trial be granted, and should the lawsuit be retried, the conditions set forth above will remain applicable to the parties. ... If the final judgment entered against LSI is less than $1,000,000.00, Insurer will pay [plaintiff] the difference between $335,000.00 and the judgment amount. If the judgment exceeds $1,000,000.00, Insurer will pay $665,000.00 to [plaintiff].”
Bright 1
Bright I reasoned that the unique circumstances necessitated the particular remand order:
“A determination by the finder of fact that Cargill is not Bright’s statutory employer leaves no option but to grant a new trial. Although the jury apportioned fault at 60% to Cargill and 40% to LSI, Cargill was in the case for fault comparison only. Cargill was not a real party in interest. Bright could not recover against Cargill. . . .
“The chemistry in the courtroom may be altered with an alteration of the litigant formula. The litigant formula during the next trial involving Bright, Cargill, and LSI, if there is one, will cany the varied advocacy nuances of tri-party litigation.
“All of the issues raised by LSI in the instant appeal will feel the impact of Cargill’s presence as a real party defendant. Any new party relationship on remand will present counsel and the trial court with legal positions to be advanced and rulings, when required, upon proper presentation of those positions. Only the future will determine what the party positions will be and what trial court rulings will be necessary.” Bright 1, 251 Kan. at 417-18.
Procedural History of Bright II
On remand, Bright conducted further discovery and filed a summary judgment motion against Cargill, contending that Cargill was not Bright’s statutory employer. Bright pi'ovided extensive references to facts in support of his claim that the additional discovery revealed no evidence which would support a finding that Cargill meets the statutory employer tests set out in Bright I. Cargill opposed the motion, arguing that it was Bright’s statutory employer and, consequently, immune from suit.
Before Cargill’s statutory employer status was determined, Car-gill and Bright entered into the $2,500,000 settlement. One of the terms of the settlement was the conclusory stipulation that Bright was a statutory employee of Cargill at the time of his accident. The conclusion was contrary to the position that had been taken by Bright throughout the trial, the appeal of Bright I, and the summary judgment motion filed by Bright after remand.
Bright moved to affirm the judgment against LSI as modified by the June 1992 settlement agreement with LSI and Maryland Casualty. Bright’s motion was based upon the remand instructions in Bright I. LSI opposed Bright’s motion, arguing that the trial court could not affirm the judgment because Cargill’s statutory employer status had not been determined by a trier of fact. The trial court granted Bright’s motion. The journal entry affirming the judgment against LSI as modified does not set out the trial court’s rationale.
The Cargill/Bright Settlement
LSI’s Contentions
LSI contends that the Cargill/Bright statutory employer stipulation in the settlement agreement was not a valid basis for affirming the judgment because the stipulation could not bind LSI, a nonparty to the agreement. LSI emphasizes that stipulations made by parties in a judicial proceeding are binding only upon those who agreed to the stipulation, citing Guillan v. Watts, 249 Kan. 606, 609, 616, 822 P.2d 582 (1991) (insurance carrier which intervened in an action was not bound by an agreement between its insured and the tortfeasor with respect to the tort-feasor’s confession of judgment). LSI also directs our attention to cases from other jurisdictions which endorse the general proposition that a stipulation is only enforceable by a party to the stipulation against other parties thereto. We agree with the general statement concerning stipulations advanced by LSI. The statutory employer status of Cargill, however, is not paramount once Cargill is out of the lawsuit.
LSI asserts the doctrine of judicial estoppel, maintaining that Bright cannot rely on a stipulation which is inconsistent with the position previously asserted in other jrtdicial proceedings. LSI reasons that the amount of the settlement, $2,500,000, demonstrates that both parties were convinced Cargill would be determined not to be Bright’s statutory employer.
LSI insists that Bright cannot argue that LSI is bound by the Cargill/Bright stipulation and, at the same time, claim that LSI lacks standing to object to the settlement. LSI contends that the Cargill/Bright stipulation is not binding on the court. LSI discusses State v. Gregory, 218 Kan. 180, 186, 542 P.2d 1051 (1975), in which we found that a stipulation by the parties in an involuntary manslaughter case constituted a legal conclusion as to what the evidence showed and was not binding on this court.
Furthermore, LSI reasons that it has no obligation to pay Bright the $665,000 because, under the terms of the June 1992 agreement, the additional money was to be paid only if the judgment against LSI is “affirmed on appeal.” According to LSI, its interpretation of the Bright I remand order is not' “hypertechnical” and does not discourage settlement. LSI states that following Bright I, Bright had the choice of pursuing the affirmance of his judgment against LSI and, if successful, recovering $665,000 under the June 1992 agreement or settling with Cargill for $2,500,000 and relinquishing the opportunity to pursue the $665,000.
Discussion
Bright I did not specify the result to follow a Cargill/Bright settlement. The reason for retrying Bright’s claims against LSI disappeared when Cargill settled out of the case. Cargill’s statutory employer status remained an issue prior to settlement because it determined whether Cargill continued as a defendant. A new trial is necessary only if Cargill remains as a defendant. The dynamics of trial would differ from Bright I if Cargill is a defendant. We reason that only an alteration of the Bright I trial dynamics could justify a retrial on the merits. Cargill, because of the settlement, is not in the case; consequently, neither the statutory employer issue nor the merits of Bright’s claims against LSI need to be retried. The “chemistry in the courtroom” with Cargill out of the case would not differ from the Bright I trial.
LSI’s contentions are contrary to our strong policy that settlements are to be encouraged. We have repeatedly affirmed the principle that the law encourages settlement. See Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 192, 643 P.2d 158 (1982) (“Our decision today in no way jeopardizes settlement of actions. Settlements are favored in the law.”); In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979) (“It is an elemental rule that the law favors compromise and settlement of disputes.”).
We agree with LSI’s contentionthat it cannot be bound by the Cargill/Bright stipulation. Although not directly bound by the stipulation, LSI indirectly sustains the consequences of a legitimate settlement agreement between Bright and Cargill. Bright’s settlement with Cargill has returned the parties to the position they occupied after the jury verdict in the first trial. Bright’s claims were tried, and the jury awarded him a substantial verdict against LSI. LSI failed in its Bright I appeal to prevail on any issue. We created the statutory employer determination. caveat when we affirmed the judgment against LSI because of the possibility that Cargill might remain in the lawsuit. Now Cargijl is gone. The basis for the caveat no longer exists.
Bright I involved, in part, an appeal from the granting of a motion for summary judgment. Our duty was to examine the pleadings, depositions, answers to interrogatories, admissions, and affidavits in an attempt to determine whether there were no genuine issues of material fact concerning the statutory employer issue. Upon review of the record, we concluded that “[a] genuine issue of material fact, the K.S.A. 44-503(a) status of Cargill, exists which precludes summary judgment.” Bright I, 251 Kan. at 401. Following the consideration and rejection of LSI’s issues on appeal, we affirmed “the judgment against LSI subject to a determination by the finder of fact that Cargill is Bright’s statutory employer.” Bright I, 251 Kan. at 417. Cargill had vigorously maintained that it was a statutory employer. We necessarily assumed that the questions of material fact on the statutory em ployer issue would need to be determined by a trier of fact in order to resolve whether Cargill remained in the case. We were unaware of the June 1992 agreement between Bright and LSI.
LSI raises a legitimate question concerning whether the trial court should be bound by the Cargill/Bright stipulation. LSI contends that Bright’s assertion at every stage of the litigation that Cargill was not Bright’s statutory employer precludes his attempt to enforce a stipulation which sets forth an inconsistent position.
“As a general rule questions of law must be determined by the court, unlimited by agreement of the litigants, and their stipulations as to what is the law are ineffective to bind this court.” State, ex rel., v. Masterson, 221 Kan. 540, Syl. ¶ 1, 561 P.2d 796 (1977). “Underlying the rule is the rationale that if this court were to be bound by an erroneous stipulation of law, then an erroneous concept of the law espoused by one or more of the parties would compel the court to adopt an erroneous precedent.” Masterson, 221 Kan. at 551. The stipulation requires the trial court to affirm, as factually true, a claim which may not, in light of the record before the trial court, be factually true. We do not rely on the statutory employer stipulation to resolve the case at bar. The status of Cargill as Bright’s statutory employer is not significant if Cargill is not in the lawsuit. A status determination was required only as a method of resolving Cargill’s place in the instant litigation. Cargill is either a real party in interest (an active defendant) or a nonparty, present only for comparative negligence purposes. Because Cargill is no longer in the case, the statutory employer issue is moot.
Citing McClintock v. McCall, 214 Kan. 764, 766, 522 P.2d 343 (1974), as an example, LSI maintains we have long recognized the doctrine of judicial estoppel. McClintock discusses but does not rely on judicial estoppel. We acknowledge the argument advanced by LSI; however, we need not reach the judicial estoppel issue to resolve the instant appeal.
But for Bright prevailing in Bright I, LSI would not have had the opportunity to litigate in Bright II. In Bright I, we affirmed Bright’s $1,884,900 judgment against LSI on all issues raised by LSI, subject to the statutory employer caveat. The caveat was required by Bright’s success in reversing Cargill’s summary judgment.
Under the June 1992 agreement, LSI paid Bright $335,000. Maryland Casualty is LSI’s liability carrier. Maryland Casualty also is the workers compensation carrier for Bright’s employer, Southwest & Associates. The June 1992 agreement addressed Bright’s claims against LSI and its liability insurer. The $335,000 was not subject to Maryland Casualty’s compensation lien. The agreement provided that if Bright’s judgment is affirmed on appeal, the insurer will pay Bright not $1,884,000 (the amount of the judgment), but $665,000, which represents the remainder of Maryland Casualty’s $1,000,000 policy limit. In the agreement, Bright waived the right to claim any excess over the policy limit. He also waived his right to claim interest on any portion of the judgment. The $665,000 payment, according to the agreement, was to be subject to the compensation lien. LSI informs us that it had paid more than $480,000 in medical and wage benefits to Bright at the time of the June 1992 agreement and that the continuing compensation payments would consume the $665,000. LSI also informs us that Bright received a waiver of Maryland Casualty’s workers compensation lien.
We do not consider the conclusory statutory employer stipulation to be controlling. What is controlling is Cargill’s absence from the lawsuit, except for comparative negligence purposes. After settlement, the parties were returned to the relationships they held during the trial of Bright I. Cargill and Bright could have settled at any point along the litigation journey. If settlement had occurred at.any time prior to the filing date in Bright I, the judgment of $1,884,900 against LSI would have been affirmed without the statutory employer caveat.
We acknowledge the tension created by our language in Bright I which linked a determination by the finder of fact of Cargill’s status as a statutory employer to affirmance of the judgment against LSI. The linkage was required because of the possibility that Cargill, if not a statutory employer, might remain in the lawsuit as a real party in interest.
The cardinal concept that drives the resolution of the case at bar is our strong policy supporting settlement. K.S.A. 60-2105 empowers us to render such a final judgment as we deem justice requires. Wilcox v. Wyandotte World-Wide Inc., 208 Kan. 563, 572, 493 P.2d 251 (1972). See K.S.A. 60-2101(b).
Affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Defendant Robert Sims, the 67-year-old grandfather of the 17-year-old female victim, was convicted of rape, aggravated criminal sodomy, and aggravated incest. Seven months after the defendant had been convicted, the district court on defendant’s motion arrested judgment on the rape and aggravated criminal sodomy convictions because of this court’s decision in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992).
The victim, F.S., testified that on July 29, 1990, she was living with her grandparents in Kansas City, Kansas. She was sleeping in her bedroom when she was awakened by Sims, who was getting on top of her. When she resisted, Sims retrieved a shotgun, laid it on the side of the bed, and told F.S. that he would shoot her if she did not do what he said. The victim testified that she felt helpless and believed her grandfather would shoot her if she did not cooperate. Sims ordered F.S. to remove her clothes. He then had oral and vaginal sex with her.
Robert Sims was charged with the crimes of rape, in violation of K.S.A. 21-3502, aggravated criminal sodomy, in violation of K.S.A. 21-3506, and aggravated incest, in violation of K.S.A. 21-3603. On December 17, 1991, a jury found defendant guilty of all three crimes alleged in the information. On June 19, 1992, defendant filed with the district court a motion to arrest judgment on his convictions of rape and aggravated criminal sodomy, citing State v. Williams, 250 Kan. 730, as authority. The motion was heard by the district court on July 2, 1992. On July 14, 1992, the district court filed its order arresting judgment on those two convictions.
The district judge granted Sims’ motion to arrest judgment and set aside the rape and aggravated criminal sodomy convictions. Based on Williams, the district judge reasoned that the legislature intended aggravated incest, a crime committed by a person related to the victim, to be a less serious offense than when a similar prohibited act is engaged in with a victim with whom the defendant had no family relationship.
The State appealed, pursuant to K.S.A. 22-3602(b)(2), from the order arresting judgment, claiming that the trial court erred in arresting judgment on appellee’s convictions for rape and aggravated criminal sodomy. On appeal, the State argues that Williams applies only to indecent liberties with a child and not to the crimes of rape or aggravated criminal sodomy.
K.S.A. 1992 Supp. 22-3208(3) provides:
“Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.”
K.S.A. 22-3502 provides:
"The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, ■ or within such further time as the court may fix during the 10-day period.”
K.S.A. 22-3502 allows a defendant 10 days after a verdict or finding of guilty to file a motion for arrest of judgment. The verdict of guilty in this case was rendered on December 17, 1991. Under K.S.A. 22-3502, Sims had 10 days after December 17, 1991, to file his motion to arrest judgment. Sims’ motion to arrest judgment was filed in June 1992, more than 180 days after the verdict of guilty, thus raising the issue of the district court’s jurisdiction to arrest judgment.
The parties were directed to brief this question:
Did the district court have jurisdiction to arrest judgment in this case on the basis of defendant’s motion to arrest judgment which was filed later than the time authorized by K.S.A. 22-3502?
Sims answers that K.S.A. 22-2103 sets forth legislative intent concerning the resolution of criminal law issues: “The code [of criminal procedure] is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” State v. Hall, 246 Kan. 728, 756, 793 P.2d 737 (1990).
Sims’ attorney filed the motion to arrest judgment under K.S.A. 22-3503, which on its face permits a trial court to arrest judgment, even without a motion, at any time during the pendency of the proceedings. The trial court explicitly accepted jurisdiction over the motion, noting that it was brought to its attention via K.S.A. 22-3503, not K.S.A. 22-3502. Sims asserts (1) the trial court had statutory authority to hear and decide the motion to arrest judgment, and (2) the court has inherent power, in the absence of a statutory provision, to arrest judgment during the pendency of a proceeding if the convictions violate due process of law.
The State answers that under K.S.A. 22-3502 and K.S.A. 22-3503, there are only two grounds for a motion to arrest judgment: (1) if the complaint, information, or indictment does not charge a crime or (2) if the trial court was without jurisdiction of the crime charged. The motion for arrest of judgment is, by its very nature, a post-verdict motion. State v. Crozier, 225 Kan. 120, 123, 587 P.2d 331 (1978).
The State claims K.S.A. 22-3502 creates a deadline by which a defendant must file a motion to arrest judgment and that the purpose of the deadline is to allow the trial court to decide the defendant’s contentions in a timely fashion. The State also asserts that the deadline carries out legislative intent regarding the resolution of criminal law issues. See K.S.A. 22-2103. The State concludes K.S.A. 22-3503 does not provide a convicted defendant a statutory vehicle to file a motion to arrest judgment out of time. The statute merely gives the trial court authority to arrest judgment without motion if it becomes aware of either of the two previously stated grounds for arresting judgment.
Our analysis begins with an examination of State v. Williams, 250 Kan. 730. First, we focus on the procedure Williams followed to obtain dismissal of the complaint and, second, we address why the magistrate’s dismissal of the complaint was correct. Williams was charged in the complaint with one count of indecent liberties with a child, K.S.A. 1992 Supp. 21-3503. During the preliminary examination, evidence was adduced that the child Williams was alleged to have sexually molested was his 14-year-old step-granddaughter. At the conclusion of the hearing, Williams moved to dismiss the complaint, arguing that the more specific crime of aggravated incest, defined by K.S.A. 21-3603, should have been charged rather than indecent liberties with a child. The judge granted Williams’ motion to dismiss, finding that the legislature intended the more specific crime of aggravated incest to apply to the facts in evidence. The State appealed.
The Williams court pointed out that when there is a conflict between a statute dealing generally with a crime and another statute dealing specifically with a certain phase of the crime, the specific statute controls unless it appears that the legislature intended to make the general crime controlling. It then noted that although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child, while such a relationship was not an element in the crime of indecent liberties with a child. After reviewing the statutes, the Williams court found it was clear that the legislature intended that aggravated incest, a crime committed by a person related to the victim, be a less serious offense than when a similar act is perpetrated by a person who has no such family relationship with the child. The court concluded by stating that when a defendant is related to the victim as set forth in K.S.A. 21-3603(1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited by that statute but not with indecent liberties with a child.
Our conclusion in Williams and the corresponding statement in Syl. ¶ 4 have caused some to erroneously believe that if the State alleges in the complaint that an individual committed the offense of indecent liberties with a child, the court is without jurisdiction to proceed if the person accused is related to the victim. A syllabus of the points of law decided by the Supreme Court in any case shall be stated in writing by the judge delivering the opinion of the court, which shall be confined to points of law arising from the facts in the case. K.S.A. 20-203; K.S.A. 60-2106(b). Syllabus ¶ 4 is a statement of the law arising from the facts in Williams.
However, because of the confusion generated by Syl. ¶ 4, some have interpreted Williams to have held that the district court was without jurisdiction to proceed. A clearer statement of the point of law decided in Williams is: Where a defendant is charged in a complaint with a general sexual offense (rape, sodomy, indecent liberties with a child, etc.) and, at the conclusion of the preliminary examination moves to dismiss the complaint on the basis that the evidence has established that the alleged victim is within that degree of kinship to the defendant as would render the offense to be within the definition of the specific offense of aggravated incest, the State may either proceed to arraign the defendant on an information charging the crime of aggravated incest or dismiss the complaint.
In Williams, this court reviewed the defendant’s motion to dismiss the complaint at the conclusion of the preliminary examination. The defendant challenged the crime charged in the complaint by arguing that the State’s evidence indicated that a lesser crime had been committed. K.S.A. 22-2902(3) provides that if from the evidence it appears that a felony has been committed and there is probable cause to believe that the felony has been committed by tbe defendant, tbe magistrate shall bind over the defendant; otherwise, the magistrate shall discharge the defendant. Rather than binding Williams over to stand trial for the crime of aggravated incest as shown by the evidence, the magistrate discharged Williams.
Because Williams dealt with sufficiency of the evidence at the preliminary examination and not with jurisdiction, Williams does not answer the question in this case. To determine the question before us, we must shift our focus to criminal procedure statutes'. It should be noted that the charging documents in Williams and in this case were complete and no essential elements of the offenses charged were omitted.
Challenging the Sufficiency of the Charging Document and the Jurisdiction of the Court
A defendant may challenge the sufficiency of the complaint, information, or indictment charging a felony crime during three stages of the proceeding. At the preliminary examination, the defendant may have the complaint dismissed if the complaint is defective or the State fails to produce evidence either that a crime has been committed or that the defendant committed the crime. If the magistrate finds from the evidence that ajfelony has been committed and there is probable cause to believe that the defendant committed the offense, the defendant is bound over for arraignment. K.S.A. 22-2902. Prior to trial, the defendant has a second opportunity to attack defects in the complaint, its failure to state a crime, and the jurisdiction of the court. Failure to present any such defenses or objections constitutes a waiver. K.S.A. 1992 Supp. 22-3208(3). The final opportunity for a defendant to challenge the sufficiency of the charging instrument or the jurisdiction of the court is by a motion to arrest judgment, which must be filed within a period of 10 days after the defendant is found guilty whether by trial or otherwise. K.S.A. 22-3502. See generally Hall, 246 Kan. ,728.
Motion to Arrest Judgment
The court on motion of a defendant shall arrest judgment if the complaint, information, or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period. K.S.A. 22-3502. If the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be granted, if filed, the court may arrest the judgment without motion. K.S.A. 22-3503.
Prosecution for a felony is by complaint, information, or indictment. A motion for arrest of judgment is a post-verdict motion made to prevent the entry of judgment where the charging document is insufficient or the court lacked jurisdiction to try the matter. To grant a motion to arrest judgment, the charging document in some respect must be fatally defective and legally insufficient to support a judgment or the court must lack jurisdiction. The motion to arrest judgment reaches only these two situations.
A motion for arrest of judgment does not test the sufficiency of the evidence to convict a defendant of the crime. It is fundamental that no valid judgment may be entered where no crime is charged in the complaint, information, or indictment. See Smith v. State, 1 Kan. 365, 389-90 (1863).
The sufficiency of the charging document is measured by whether (1) it contains the elements of the offense intended to be charged, (2) it sufficiently apprises the defendant of what he or she must be prepared to meet, and (3) it is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. K.S.A. 22-3201; State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).
Jurisdiction is the power of a court to hear and decide a matter. Jurisdiction is not limited to the power to decide a matter rightly but includes the power to decide the matter wrongly. In re Estate of Johnson, 180 Kan. 740, 746, 308 P.2d 100 (1957).
Sims claims that although the defendant must challenge the sufficiency of the charging document or the jurisdiction of the court within 10 days after a finding or verdict of guilty, under K.S.A. 22-3503, the court may arrest judgment on its own motion during the pendency of the proceedings. Sims does not state what, if any, limitation is placed on the judge’s power to arrest judgment if the defendant fails to file a motion to arrest the judgment. The State claims that the power of the judge to arrest judgment is restricted by K.S.A. 22-2103, which limits unjustifiable expenses and delay.
To determine this issue we must first review the statutes and apply the rules of statutory construction. When a statute is pláin and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
K.S.A. 22-3503 provides that whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be granted, if filed, the court may arrest the judgment without motion. K.S.A. 22-3502 requires the defendant to file a motion to arrest judgment within 10 days after the verdict or finding of guilty. Therefore, the motion for arrest of judgment must be filed by the defendant, and a court’s arrest of judgment without motion must be ordered, within 10 days after the verdict or finding of guilty.
Sims finally concludes he is not claiming that the information lacked any elements necessary to prove the crimes charged. Sims points out that he was charged with the wrong crime. Sims asserts that K.S.A. 22-3208(3) is clear and that the question of whether an information is defective for failing to charge a crime is a separate question from whether the trial court lacked jurisdiction over the offense charged. To the extent this court believed in State v. Hall that an information could be challenged on jurisdictional grounds only if the charging document omitted essential elements of the crime charged, the defendant respectfully submits the opinion is in error. Sims cites no authority for the use of a motion to arrest judgment for this claim. The State disagrees with Sims’ statement. Although neither party cites any authority, we note that this question has been previously decided by this court.
In State v. McCool 34 Kan. 617, 9 Pac. 745 (1886), McCool was charged in an information with the offense of stealing a trunk and some wearing apparel contained within the -trunk, having an aggregate value of more than $25. McCool was convicted of grand larceny and sentenced to serve a term of three years. After his conviction, McCool filed a motion to arrest judgment, claiming that the evidence adduced at trial did not support the charge in the information but that if any offense was shown to be committed by the evidence, it was that of embezzlement (a separate crime) and not grand larceny. The district court denied McCool’s motion to arrest judgment. McCool appealed.
The McCool court noted that McCool claimed the evidence did not support the crime charged but a separate crime. It pointed out that the grounds upon which a judgment may be arrested are specifically prescribed in the statute and are: “ ‘First, that the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense.’ ” 34 Kan. at 618. The McCool court observed that the cause alleged by the defendant was not among those enumerated in the statute and affirmed the trial court’s denial of McCool’s motion to arrest judgment. 34 Kan. at 618. See State v. Gibbens, 253 Kan. 384, 388, 855 P.2d 937 (1993).
Where the evidence adduced at trial does not support the crime alleged in the charging document but supports a separate crime, the defendant cannot challenge the verdict on grounds of insufficiency of the evidence by a motion to arrest judgment. A motion to arrest judgment is a challenge to the charging instrument or the jurisdiction of the court to try the offense alleged in the charging document, whereas an insufficiency argument is a challenge to the verdict. Other statutory procedures are available to challenge the sufficiency of the evidence. Sims’ final claim is without merit.
Because the court did not have jurisdiction to arrest Sims’ convictions for rape and aggravated ■ criminal sodomy, the court’s arrest of judgment is reversed and the matter remanded with directions to reinstate the convictions.
Reversed and remanded.
Allegrucci, J., concurs in the result. | [
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The opinion of the court was delivered by
Holmes, J.:
Defendant, Eben W. Carpenter, appeals from a conviction in a trial to the court of one count of second-degree murder. This is the third appearance of this case, in one form or another, before this court. See State v. Carpenter, 215 Kan. 573, 527 P.2d 1333 (1974) (Carpenter I), and Carpenter v. State, 223 Kan. 523, 575 P.2d 26 (1978) (Carpenter II), for a statement of the facts in the prior cases which will not be repeated in detail here.
In Carpenter I, the defendant Eben W. Carpenter was charged with the first-degree murder of one Willis Upshaw. Defendant’s brother, Jan Carpenter, Karen Larson and Donald Brenner were also charged in connection with the murder. Karen Larson later pled guilty to the crime of aiding a felon and was placed on probation. Jan Carpenter and Brenner both pled guilty to murder in the second degree and Brenner testified against defendant. It appears to be undisputed that Brenner fired the shots which killed Upshaw and that at the time of the actual killing, the defendant Eben Carpenter was outside the State of Kansas. Brenner, an employee of the Carpenter brothers, killed Upshaw as the result of a conspiracy and agreement among Jan and Eben Carpenter and Brenner. Following a trial to a jury, Eben Car penter was convicted of second-degree murder. The jury had been instructed on second-degree murder as a lesser included offense of first-degree murder and no objection was made to the instruction by either defendant’s counsel or the prosecutor. As a result this court, in Carpenter I, held that the instruction was not clearly erroneous and affirmed the conviction on the authority of then K.S.A. 1971 Supp. 22-3414(3), and State v. Yargus, 112 Kan. 450, 211 Pac. 121 (1922).
Thereafter, defendant filed a motion under K.S.A. 60-1507 to have his conviction set aside on the ground he had been deprived of his right to effective assistance of counsel based upon an alleged conflict of interest of defense counsel. During these proceedings, the trial judge, the Honorable Harold R. Riggs, was disqualified based upon an affidavit of prejudice filed pursuant to K.S.A. 1979 Supp. 20-311d. Judge Buford Shankel, after a hearing, disqualified Judge Riggs and subsequently found a conflict of interest did exist and set aside the conviction. The State appealed and this court, in Carpenter II, held that Judge Riggs had been erroneously removed by Judge Shankel and the case was remanded for further proceedings before Judge Riggs. Judge Riggs then granted the defendant a new trial based upon the conflict of interest of defense counsel.
Defendant’s present counsel, who has represented defendant throughout the proceedings in Carpenter II, and on this appeal, submitted the matter by stipulation to the trial judge on the record from the original murder trial. Based upon that record the trial judge found the defendant guilty of second-degree murder. Defendant now appeals in what hopefully will not come to be known at some later date as Carpenter III.
On January 12, 1979, the State and the defendant entered into the following stipulation:
“STIPULATION
“Now on this 12th day of January, 1979, the plaintiff State of Kansas, by Gene Olander, and the defendant, Eben W. Carpenter, in person and by his attorney, David J. Waxse, stipulate as follows:
“1. On September 5,1972, defendant was indicted for first degree murder by a grand jury sitting in Shawnee County, Kansas.
“2. On November 3, 1972, said cause was transferred to Johnson County, Kansas, pursuant to an order changing venue.
“3. On December 26,1972, petitioner was acquitted of first degree murder and convicted of second degree murder.
“4. On November 2,1974, the Supreme Court of Kansas rendered a decision in the direct appeal by defendant from the above described conviction. Said decision is found at 215 Kan. 573 (1974).
“5. On February 11, 1975, Eben W. Carpenter filed a motion pursuant to K.S.A. 60-1507 requesting a new trial for the reasons described in his petition.
“6. On July 25, 1978, Judge Harold R. Riggs sustained petitioner’s motion for a new trial.
“7. The defendant has now been advised that he must stand trial on the charge of second degree murder.
“8. The State of Kansas has indicated that the evidence and theory of the case to be presented on the charge of second degree murder would be identical to that presented in the first trial in 1972 on the charge of first degree murder and the defendant has no other evidence to present other than that presented in the first trial.
“9. Both parties waive their right to trial by jury and pursuant to K.S.A. 22-3403 submit the trial of this case to the Court.
“10. The Court should consider all of the evidence of all of the witnesses for the parties as was presented in the first trial as if the witnesses were personally present and presented such evidence subject to all objections, ruling on motions, motions, or other objections of every kind and nature presented in said trial, or post trial proceedings, or present proceedings.
“11. Following the consideration of the evidence presented at the previous trial, both parties will have an opportunity to make legal arguments prior to the Court entering its judgment in this matter.
“12. Both parties understand that by proceeding in the above described manner, they are waiving their rights of further confrontation with the witnesses presented at the previous trial and their right to present additional evidence other than that presented at the previous trial.
“13. By entering into this stipulation, neither party waives any rights they may have in regard to any legal positions they have asserted or may assert in the future in regard to the issues of this matter other than those specifically waived above.
“14. If on a motion for new trial or upon an appeal or other decision of any Court, the retrial of this matter shall become necessary, the defendant specifically reserves the right to request trial by jury at any subsequent trial.”
Appellant makes two principal points on appeal. The first is that the original first-degree murder indictment was not amended and no new indictment, information or complaint was filed charging second-degree murder. Hence, it is argued defendant could not be tried for second-degree murder under an indictment charging first-degree murder. The second principal point is that the undisputed evidence will not support a conviction of second-degree murder as it clearly shows the defendant was either guilty of first-degree murder or nothing.
It is undisputed that the defendant cannot be tried a second time upon a greater charge than that of which he was convicted in the first trial. A conviction of second-degree murder in the first trial is tantamount to an acquittal of the original charge of first-degree murder. Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969); Green v. United States, 355 U.S. 184, 2 L.Ed.2d 199, 78 S.Ct. 221 (1957); K.S.A. 1979 Supp. 21-3108(l)(c). Appellant argues that as the original indictment charging first-degree murder was never amended or superseded by a complaint, information or indictment charging second-degree murder, he cannot be tried for second-degree murder under the original instrument charging first-degree murder.
We find no Kansas cases wherein the question of amending an indictment has been before the court.
K.S.A. 1979 Supp. 22-3201 provides in part:
“(1) Prosecutions in the district court shall be upon complaint, indictment or information.
“(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged ....
“(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
As is apparent from the statute, a complaint or information may be amended and the courts have been lenient in allowing such amendments. In Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970), we held that in the second trial of a defendant an amendment of an information was not necessary.
“No amendment of an information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against an accused on a lesser one included therein and a simple motion made verbally in open court, or an announcement of such intention is sufficient if made before the trial begins.” Syl. f 7.
However, nothing in the statute allows the amendment of an indictment. K.S.A. 1979 Supp. 22-3201 is based largely on Rule 7 of the Federal Rules of Criminal Procedure. Under the federal rules it has long been the general rule that an indictment may not be amended.
In 1 Wright, Federal Practice and Procedure: Criminal § 127, it is stated:
“The federal courts continue to adhere to the historic rule that an indictment may not be amended. The reason is clear. An indictment is an action of the grand jury, and the prosecutor or court may not change the charge put forward by the grand jury. As was said in a leading case [Ex parte Bain, 121 U.S. 1, 10, 30 L.Ed. 849, 75 S.Ct. 781 (1887)]:
Tf it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says “no person shall be held to answer,” may be frittered away until its value is almost destroyed.’ ” p. 271.
In United States v. Beeler, 587 F.2d 340 (6th Cir. 1978), the reason for the federal policy against allowing indictments to be amended was stated as follows:
“The purposes underlying the rule against amendments and constructive amendments include notice to the defendant of the charges he will face at trial, notice to the court so that it may determine if the alleged facts are sufficient in law to support a conviction, prevention of further prosecution for the same offense, and finally, of ‘paramount importance,’ the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant’s guilt or innocence. United States v. Radetsky, 535 F.2d 556, 562 (10th Cir. 1976).” p. 342.
It is equally clear that a defendant under the federal rules may waive the right to be proceeded against by indictment and consent to be charged by information. Obviously, the purpose of allowing waiver is to expedite matters for the benefit of alleged offenders who desire expedition. 1 Wright, Federal Practice and Procedure: Criminal § 122, p. 214. The waiver of the right to an indictment to be valid must be voluntarily and intelligently made in open court. Bartlett v. United States, 354 F.2d 745 (8th Cir. 1966). See also Ching v. United States, 292 F.2d 31 (10th Cir. 1961), Fed. R. Crim. Proc., Rule 7(b), and 1 Wright, Federal Practice and Procedure: Criminal § 122, p. 217. In those cases where indictment has been waived, however, it should be noted that the prosecution has proceeded under an information.
Numerous older cases from the state courts indicate that where a new trial has been granted after a conviction of a lesser offense than that charged in the original indictment, the second trial may proceed upon the original indictment but the trial will be limited to a consideration of the lesser offense of which the defendant was originally convicted. The cases require that the jury be instructed to this effect. See Ison v. State, 35 Ala. App. 218, 45 So.2d 174 (1950); State v. Foley, 131 W. Va. 326, 47 S.E.2d 40 (1948); State v. McLane, 126 W. Va. 219, 27 S.E.2d 604 (1943); Coley v. State, 69 Fla. 568, 68 So. 655 (1915); West v. State, 55 Fla. 200, 46 So. 93 (1908).
In 24 C.J.S., Criminal Law § 1426, at p. 17, we find:
“The new trial may proceed on a new indictment; but accused may also be tried on the old indictment, even where his conviction was for a degree lower than that charged in the indictment. In the latter case, where it is held that accused cannot be retried for the higher offense, his rights may be safeguarded by an instruction to that effect, without the necessity of a new or an amended indictment . . . .”
In 24B C.J.S., Criminal Law § 1952(8), at p. 414, it is stated:
“Indictment. While it has also been held that the court may permit amendments to the indictment, in general the new trial may and even must be on the original indictment, except where it was held defective by the appellate court; and this has been held to be so even though accused was acquitted of some of the crimes, or grades or degrees thereof, charged in the original indictment.”
The purpose of an indictment, information or complaint is to advise the accused and the court of the charges alleged to have been committed and the essential facts constituting the crime or crimes charged. Regardless of what the rule might be as to the necessity of a new indictment, information or complaint in a second trial before a jury, here the case was tried to the court and all parties were fully advised, as shown by the stipulation, of the nature of the charges against appellant and that the trial would be limited to the charge of second-degree murder. In addition, the defendant submitted the matter to the trial court upon the record from the previous trial. Defendant cannot claim any surprise as to the nature of the proceedings against him and certainly no prejudice to the defendant has been shown. Under such circumstances we hold that it was not error for the case to proceed to trial on the charge of second-degree murder without a new indictment, information or complaint. While the state might very well have filed a new information charging defendant with second-degree murder, the failure to do so is not fatal where all parties were fully informed, no surprise or prejudice to defendant is shown and the trial was to the court upon a charge of second-degree murder on the existing record from the first trial. Defendant was not retried for first-degree murder and no question of double jeopardy is involved.
Appellant’s next principal point is that even if it were proper to proceed without a new indictment, information or complaint charging second-degree murder, the evidence will not support a conviction of second-degree murder. It is his position that the evidence clearly shows he was not at the scene of the crime at the time Upshaw was murdered and, therefore, if he had anything to do with the murder, it would have been as an aider or abetter, which would obviously include premeditation and support a conviction of first-degree murder. In fact, the evidence shows Carpenter was outside the State of Kansas at the time and hence it is argued he was either guilty of murder in the first degree or guilty of no murder at all. Having been acquitted of first-degree murder in the previous trial, he now contends he cannot be convicted of the crime of second-degree murder when the evidence would support first-degree murder. Under the facts and circumstances of this case, can the defendant be tried and convicted of second-degree murder upon proof of facts which would substantiate a verdict of guilty of first-degree murder? We think so.
K.S.A. 21-3401 provides:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.
“Murder in the first degree is a class A felony.”
K.S.A. 21-3402 provides:
“Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.
“Murder in the second degree is a class B felony.”
The trial court made the following findings of fact:
“1. In the early morning hours of July 2,1972, Willis Upshaw, an employee of C and C Security Agency, owned and operated by Jan Carpenter and Eben W. Carpenter, was murdered at the Lake Sherwood Estates, southwest of Topeka in Shawnee County. By his own admission, the murder was committed by Donald Brenner, another employee of C and C Security Agency.
“2. The evidence established that the murder of Upshaw was the result of a plan and conspiracy conceived by Jan and Eben W. Carpenter. The motive established for killing Upshaw was that Upshaw had been talking too much about an insurance fraud scheme which Upshaw, Brenner, the defendant, Eben W. Carpenter, and others had become involved in several months preceeding [sic] the murder. In addition, it was established that the two Carpenter brothers had taken out a large amount of life insurance on the life of Willis Upshaw and that one of the motives was to collect the proceeds of those policies on the death of the victim.
“3. The evidence established that the defendant actively participated in the planning of the murder and on no less than five occasions actually discussed specifics of various plans on how to accomplish the murder with Brenner.
“4. The evidence also established that the defendant took an active part in the implementation of the plan finally adopted by facilitating Upshaw’s presence at Sherwood Estates at the planned time of the murder and by placing two rifles to be used in the murder in a tool shed where they would be easily accessible to Brenner with little chance of being seen by others.
“5. The testimony presented at trial established beyond a reasonable doubt that the defendant, Eben W. Carpenter, could have been found guilty of murder in the first degree as a person who aided or abetted or counseled in the commission of murder by another. K.S.A. 21-3205.”
Appellant relies on numerous cases from this court involving the giving of or failure to give instructions on lesser included offenses. See State v. Seelke, 221 Kan. 672, 561 P.2d 869 (1977); State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976); State v. King, 219 Kan. 508, 548 P.2d 803 (1976); State v. Ponds & Garrett, 218 Kan. 416, 543 P.2d 967 (1975); State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976); State v. James, 216 Kan. 235, 531 P.2d 70 (1975); State v. Reed, 214 Kan. 562, 520 P.2d 1314 (1974); State v. Masqua, 210 Kan. 419, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973); State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. denied 389 U.S. 933 (1967). In several of these cases the court refused to give an instruction on second-degree murder when the defendant was charged with first-degree murder under the felony murder rule. Our holdings have been consistent that an instruction on lesser degrees of homicide is not necessary when the evidence of the underlying felony is clear and convincing. In James we held it was proper not to give an instruction on simple assault and simple battery as lesser included offenses of rape when the two events were separate and distinct. In King we held it was not error to refuse to give an instruction on second-degree murder when all the evidence showed premeditation and the elements of first-degree murder. In Seelke we held it was error to fail to give an instruction on manslaughter and involuntary manslaughter in a trial for second-degree murder when there was evidence which might support a conviction of a lesser offense. In State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976), the trial court in a first-degree murder trial gave an instruction on second-degree murder over the objection of the defendant. This court held there was no error as the evidence of the underlying felony was weak and conflicting. We do not find any of these cases to be in point or controlling on the question now before the court. There were no instructions in this case as it was a trial to the court upon a stipulated record. The propriety of the instructions in Carpenter I was previously decided and does not control the proceedings in this case. As pointed out in Carpenter I, if the court had refused to give an instruction on second-degree murder upon request of the defendant, we probably would have found no error as the evidence clearly proved and supported first-degree murder. On the other hand, if the second-degree instruction had been given over defendant’s objections, this court might very well have found reversible error.
The question before this court is not one of whether jury instructions on lesser included offenses are appropriate but rather whether, under the facts in this case in a prosecution for second-degree murder, proof of a premeditated first-degree murder will sustain a conviction.
It has long been the majority rule, and the rule in this state, that in a trial for first-degree murder where the evidence shows premeditation and, therefore, theoretically precludes any conviction of second-degree murder or other lesser degrees of homicide, a conviction of second-degree murder will not be disturbed on appeal. State v. Bigler, 138 Kan. 13, 23 P.2d 598 (1933); State v. Uhls, 121 Kan. 377, 247 Pac. 1050 (1926); State v. Brundige, 114 Kan. 849, 220 Pac. 1039 (1923); State v. Yargus, 112 Kan. 450, 211 Pac. 121 (1922). For cases from other jurisdictions following the same rule see People v. Wimbush, 45 Mich. App. 42, 205 N.W.2d 890 (1973); State v. Heald, 292 A.2d 200 (Me. 1972); State v. Smith, 1 Or. App. 153, 458 P.2d 687 (1969).
40 Am. Jur. 2d, Homicide § 533, states:
“While there is some conflict on the question, the rule supported by most of the courts is that if the evidence demands or warrants a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal, or if there is, it is not sufficient to warrant or require acquittal, or is disbelieved by the jury, the defendant is not entitled to a reversal or a new trial on the ground that the court instructed on the lower degree of homicide as to which there was no evidence, the theory being that he is not prejudiced thereby and cannot complain. Accordingly, where a defendant is convicted of murder in the second degree after an instruction has been given at his request on that degree of homicide, he cannot complain that the evidence made against him a case of murder in the first degree or nothing. An instruction to the effect that the jury may find the accused guilty of manslaughter on evidence which proves him guilty of murder has been held not to be erroneous, where the accused has been previously tried for murder in respect to the same transaction and found guilty of man slaughter. In some jurisdictions, however, the submission of a lesser degree of homicide not warranted by the evidence is erroneous where the defendant has been convicted of the lesser degree.” pp. 788-789.
The same work at Section 543, pp. 801-802 states:
“An indictment properly framed which charges murder or murder in the first degree includes a charge of the various lower degrees of murder which may be recognized in the particular jurisdiction, as well as a charge of manslaughter. And it is a well-established general rule of the common law, followed in practically all states, either by the judicial adoption of the common-law rule or by statutes which are declaratory thereof or which reinforce the rule of the common law in this respect, that the jury may, under an indictment charging murder in the common-law form, return a verdict convicting the accused of any of the lower degrees or grades of homicide included in the charge, or, in other words, the jury may acquit the defendant of the degree charged, and convict him of any of the inferior degrees, provided, as required in some jurisdictions, there is evidence to support the lower grade or degree. This is because the lower grades do not differ from murder in the cause or nature of the offense, but only as regards the circumstances, a variance as to which does not hurt the verdict. That the crime under the law and facts ought to be fixed at a higher grade or degree does not affect the application of the rule.”
For annotations on the subject, see 21 A.L.R. 603, 625; 27 A.L.R. 1097, 1100; and 102 A.L.R. 1019, 1029.
In State v. Bigler, 138 Kan. 13, the evidence was clear that the defendant was an actual participant in a murder which occurred during an attempted robbery of the victim. The jury, however, found the defendant guilty of second-degree murder. In upholding the conviction this court stated:
“The fact that the verdict was guilty of murder in the second degree, when, of course, he was guilty of murder in the first degree or not guilty of anything, presents nothing for correction on appellate review. (State v. Yargus, 112 Kan. 450, 211 Pac. 121, syl. ¶ 2; State v. Brundige, 114 Kan. 849, 220 Pac. 1039, syl. ¶ 6; State v. Uhls, 121 Kan. 377, 382, 247 Pac. 1050.)” p. 19.
In State v. Yargus the defendant was charged with committing murder in the first degree by the use of poison. The court held:
“A defendant who is convicted of an offense which is less than that charged, but which is necessarily included within it, cannot obtain a reversal on the ground that the evidence showed him to be guilty of the greater offense if any, because the error in that respect is not prejudicial, inasmuch as it benefits instead of injuring him. For this reason one who is prosecuted upon a charge of murder by means of poison and found guilty of murder in the second degree cannot upon appeal effectively complain on the ground that murder committed by the administration of poison is necessarily of the first degree, even assuming that to be the case.” 112 Kan. at syl. ¶ 2.
In the instant case, defendant was convicted in Carpenter I of second-degree murder when the evidence clearly showed guilt of first-degree murder. Upon obtaining a new trial, he now contends he cannot be tried and convicted of second-degree murder and pleads double jeopardy as to any prosecution for first-degree murder. We agree that defendant could not be tried a second time for first-degree murder and he was not. Defendant, after his conviction of second-degree murder, which worked to his advantage considering the evidence supported the charge of first-degree murder, sought a new trial claiming he had not been given a fair trial because of ineffective assistance of counsel, based upon an alleged conflict of interest. However, after obtaining such a new trial he was content to submit the matter to the court on the record from the first trial. Obviously, he does not feel that his first trial lacked anything by way of preparation or presentation or he could have insisted upon his right to a new jury trial. Instead, he hopes to rely upon evidence showing guilt of first-degree murder to defeat a conviction of second-degree murder. In Lasecki v. State, 190 Wis. 274, 208 N.W. 868 (1926), a similar argument was made when the defendant was convicted of second-degree murder on evidence of first-degree murder. In affirming the conviction, although the Court found evidence which might support second-degree murder, it was stated:
“The defendant urges that if the evidence establishes that he shot Armstrong the judgment must be reversed because the shooting occurred under such circumstances that he was guilty of first-degree murder, if guilty of any offense. Doubtless defendant would not have taken this position had he not known that he could play his game with loaded dice under the rule adopted in State v. Martin, 30 Wis. 216. His purpose is to obtain a reversal and at the same time to save the benefit of the acquittal of murder in the first degree. If defendant must be acquitted of all lesser degrees of homicide because guilty of murder in the first degree, then, although he is guilty of an offense which should be punished by imprisonment for life, the defendant must be given his freedom without undergoing punishment. If the court must administer the rules of law so as to work such an injustice in the name of justice, it presents good reason for changing the rule as to former jeopardy when the defendant asks and is granted a new trial.” p. 278.
In Yargus we said:
“The weight of judicial opinion seems to favor the conclusion we have reached, but we base it not upon authority but upon the soundness of the principle that the defendant should not be allowed to derive an advantage from an error from which she suffered no injury, but on the contrary derived a benefit.” 112 Kan at 454.
As stated in Carpenter I:
“Second-degree murder is clearly a lesser included offense under first-degree murder since all of the elements of second-degree murder are included in the elements required to establish murder in the first degree.” 215 Kan. at 579.
Under the record in this case the fact that the State went further than necessary in proving its case of second-degree murder and actually showed premeditation does not preclude the defendant’s conviction of second-degree murder. Premeditation (or its equivalent, the proof of a felony) is a necessary element in first-degree murder not required in proof of second-degree murder, but it is not incumbent upon the State to disprove premeditation when there is a malicious killing and defendant has only been charged with second-degree murder. Under the peculiar factual and procedural situation existing in this case where defendant sought and obtained a new trial for alleged ineffective assistance of counsel, the failure of the State to disprove premeditation will not invalidate defendant’s conviction for second-degree murder.
The learned trial judge, in his well-considered memorandum decision, in commenting upon the majority rule that the conviction of a lesser offense when the evidence proves a greater offense will not be upset on appeal stated:
“A number of states adopting the majority rule have, in addition, held that second degree murder is a lesser included offense under first degree murder despite the theoretical difficulties present in cases such as this. Kansas has adopted this approach: ‘Where a person is charged with murder in the second [sic, first] degree (21-3401), the crimes of murder in the second degree (21-3402), voluntary manslaughter (21-3403), and involuntary manslaughter (21-3404) are considered to be lesser degrees of the crime charged.’ State v. Seelke, 221 Kan. 672, 675 (1977). The court went on to say that the duty to instruct on the lesser degrees arises only where there is evidence to support such an instruction. Thus, although the duty to instruct or not to instruct in the lesser offense is to be determined by the evidence, the crime of second degree murder itself remains inherent within the crime of first degree murder.”
The holding herein is based upon the factual and procedural circumstances of this case in a trial to the court and the reasoning as set forth herein and previous rules and decisions on the propriety or necessity of jury instructions are not intended to be modified or affected.
All points raised by appellant have been considered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.;
Robert E. Esrey and Company d/b/a Park South Apartments appeals from a Shawnee County District Court decision which upheld an order of the defendant Floyd H. Dibbern requiring certain doors to be replaced in the Park South Apartment complex in Topeka. Mr. Dibbern was the state fire marshal at the time and the order was issued by him in that capacity. The order directed that the sliding glass doors in four of the buildings located within the complex be replaced by hinged swinging doors. The fire marshal’s determination that the existing sliding doors constituted a distinct hazard to life or property and his order of replacement were appealed to the district court pursuant to K.S.A. 1979 Supp. 31-142.
The Topeka Fire Department inspected the Park South Apartments after receiving a complaint from Sherry Chatham. Ms. Chatham’s complaint originated after she was locked in or out of her apartment several times due to the accumulation of ice in the runner at the base of the sliding glass door. This door was the only entrance to her apartment and, as a result of the blockage caused by freezing ice, Ms. Chatham was confined to her apartment on one occasion for twenty-four hours. Ms. Chatham had no telephone and finally got help by attracting the attention of a passerby.
Upon inspection, Mr. Darrell B. Dibbern, of the Topeka Fire Department, Fire Prevention Bureau, found that the sliding glass doors were the only means of ingress and egress to sixty-eight apartments located in four buildings of the Park South Apartment complex. The buildings will be referred to by their numerical addresses as 3720, 3730, 3740 and 3750. Mr. Dibbern notified appellant that since the doors created a distinct hazard to life and property and were not in compliance with K.S.A. 1979 Supp. 31-133 and regulations adopted thereunder, they were to be replaced in all sixty-eight apartments by hinged swinging doors.
On May 2, 1979, an administrative hearing was held, at the request of appellant, before Paul Markley, a hearing officer from the state fire marshal’s office, to consider the validity of the fire department request. Mr. Markley upheld the findings of the fire department and plaintiff appealed that determination to the district court. As the sufficiency of the evidence to justify the fire marshal’s order is an issue on appeal, the evidence presented before Mr. Markley and reviewed by the district court will be set forth in some detail.
Ms. Chatham testified that her door had frozen several times and several other tenants had experienced similar problems. On one occasion she obtained help from the fire department to gain entry to her apartment. On other occasions she was assisted by other tenants or by apartment maintenance people to gain entry into or escape from the apartment. She is a rather small woman and when her door would freeze she did not have sufficient strength to force the door open. She had no telephone and when frozen in she could only obtain help by attracting the attention of passersby or other tenants. As previously stated, she was confined on one occasion for nearly twenty-four hours. She furnished names and instances of others who had also experienced frozen doors.
Gary Oyler, a Topeka fireman, testified that on one occasion he assisted Ms. Chatham in gaining entrance to her apartment when her door was frozen shut.
Arlene Stramel, an employee of plaintiff for approximately seventeen years, was called as a witness by both parties. At the time of the hearing Ms. Stramel was the manager of the apartment complex and prior to becoming manager had been assistant manager. She produced records of the number of complaints that had been received about freezing doors. The apartments were constructed in 1965 and the records indicated one complaint in building 3720 in 1977, one complaint in building 3730 in 1975, two in 1977 and six in 1979. The complaints about building 3730 included one at apartment # 2, two at apartment # 9, four at apartment # 10, and one at apartment # 16. Ms. Chatham occupied apartment # 10 and one of her complaints involved a stuck door not due to freezing. Ms. Stramel acknowledged there could have been other occurrences of frozen doors but if they were not reported to the office she would have no record of them. There had never been any complaints of frozen doors in buildings 3740 and 3750. She testified there were sixty-eight apartments in the four buildings which have a sliding door as the only means of access and egress. The apartment complex had a total of two hundred thirty-four apartments but the others open into a central hallway by conventional hanging doors. The original work orders reflecting the complaints and the action taken thereon were received in evidence along with numerous photographs of the buildings and the apartment door of Ms. Chatham.
Darrell Dibbern, a Topeka fire inspector with the fire department, investigated the complaint filed with the city by Ms. Chatham. He interviewed Ms. Chatham, inspected her door in February, 1979, and observed ice and snow in the metal tracks of the door on the outside and an accumulation of thick ice on the inside of the door. He determined the apartments had only one means of access and noticed the other doors in the four buildings were identical to the one at Ms. Chatham’s apartment. He testified that under the regulations and portions of the national fire protection association life safety code adopted by the state fire marshal, the apartments were required to have at least one swinging door as a means of access and egress. He did not examine or closely inspect the doors on any of the other apartments. Based upon Ms. Chatham’s complaint and his interpretation of the life safety code and Kansas statutes, he determined “a distinct hazard to life could exist with the only means of egress being by sliding doors.” He applied that determination to all sixty-eight apartments in the four buildings. Plaintiff was directed to replace all sixty-eight sliding doors with “side-hinged swinging type” doors.
Floyd H. Dibbern, the state fire marshal, testified in his own behalf. He is a high school graduate and not trained as an engineer. Darrell Dibbern is his son. He had no personal knowledge of the problems at the Park South Apartments and merely accepted his son’s report and made a determination the sliding doors created a severe life safety hazard. He ordered the doors changed to the swinging type. His order was based upon the investigation and report of his son and upon a determination swinging doors were required by the life safety code adopted by the regulations of the fire marshal’s office. He testified he had gone to the apartment complex but only to verify that there were sliding glass doors. The doors did not meet the requirements of the code and therefore, in his opinion, constituted a distinct life safety hazard.
Next, plaintiff called Noland Paul Landry, employed by the city of Topeka as a building inspector in the building inspection department. He had been with the department nineteen years, reviewed the original plans for buildings 3720, 3730, and 3740, and identified copies of the building permits issued in 1965. The four apartment buildings, including the sliding doors, complied with the Topeka building code as it existed at the time of construction.
Plaintiff’s final witness was Donald G. Dressier, a professional consulting engineer from the greater Kansas City area. He holds a B.S. degree in civil engineering from Kansas State University, is licensed as a professional engineer in Kansas, Missouri, Delaware and Pennsylvania. He was amply qualified to testify as an expert. At the request of the plaintiff he made an inspection of apartment # 10 in building 3730. It was a detailed inspection of the sliding door problems at that apartment and was conducted from both the outside and the iriside. Mr. Dressier found that due to drainage from the east and the existing soil conditions, building 3730 had settled on the west side allowing cold air to infiltrate around the door. Interior moisture would then condense on the inside of the door and in cold weather would turn to ice and freeze the door shut. The settling of the building with the resultant interior moisture problem coupled with the extremely cold temperatures during January and February, 1979, combined to create Ms. Chatham’s problem. Uriless corrected, reoccurrences could be expected in cold weather. Mr. Dressier testified that modern day sliding doors are available which would eliminate the problem when combined'with repairs to the entranceway to eliminate the infiltration of the outside air which was causing the interior moisture to condense and freeze. On the day of his inspection in April, 1979, the interior and exterior temperatures at the door were the same, forty-two degrees, and the interior should be considerably warmer in winter. The entire western side of the building is settling but is worse in the areas of apartments 9 and 10. In addition to correcting the results of the settling problem so the doors do not become “scrunched,” he recommended the doors be replaced with “a quality well-insulated infiltration sliding glass door” of the type manufactured by Anderson or Pella. If this were done he was of the opinion the problem would be corrected and there would be no hazard to the tenants and occupants. He was further of the opinion that under some conditions a hinged swinging door would be less satisfactory and more hazardous than a quality sliding door. It was also his opinion that the installation of swinging doors would ruin the architectural integrity of the buildings. He did not inspect or examine any other doors except those at apartments 9 and 10 and did not inspect the other buildings. His inspection of the door at apartment 9 was incidental to the inspection at 10 and was only from the exterior as he was examining the immediate area of Ms. Chatham’s apartment. Apartment # 9 is next door to # 10. He did not inspect and had no knowledge whether the other buildings were affected by settling. He was specifically retained to examine the problem with apartment 10 in building 3730 and not for any other purpose. During the same winter Mr. Dressler’s own sliding door froze shut and he replaced it with a modem quality sliding door and eliminated his problem. The winter of 1978-79 was the worst winter in forty years.
The district court found the evidence to be sufficient to support the order of the fire marshal and plaintiff has appealed. The case was transferred from the Court of Appeals to this court under K.S.A. 1979 Supp. 20-3017. This court’s scope of review is the same as the district court’s when an administrative tribunal’s order is on appeal. On appeal, the court may not substitute its judgment for that of the administrative tribunal, but is restricted to considering whether as a matter of law:
(1) the tribunal acted fraudulently, arbitrarily or capriciously;
(2) the order is substantially supported by evidence, and
(3) the tribunal’s action was within the scope of its authority.
See Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, Syl. ¶ 8, 612 P.2d 610 (1980); and Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968).
Appellant raises three issues on appeal:
1. The order appealed from is not substantially supported by sufficient evidence so as to apply to all sixty-eight apartments.
2. The state fire marshal acted arbitrarily, capriciously and fraudulently.
3. The state fire marshal acted outside the scope of his authority.
We will first direct our attention to appellant’s third point on appeal. K.S.A. 31-137 provides for the enforcement of the fire safety and prevention act, K.S.A. 31-132 et seq., as amended and supplemented. K.S.A. 31-137 provides in part:
“The state fire marshal, his deputies, the chief of any organized fire department of any municipality . . . shall enforce the provisions of this act and any rules and regulations adopted pursuant thereto.”
As will be shown subsequently, the statutes specifically provide the state fire marshal shall regulate the construction and maintenance of exits from apartment buildings. Appellant’s argument is that the fire marshal acted outside his powers in entering an order which appellant contends is too broad in scope. The crux of the argument really goes to the sufficiency of the evidence and not to the authority of the fire marshal. It is clear that he was acting within the scope of his authority as mandated by the statutes and the point is without merit.
We now turn to the more difficult determination of whether the determination and order of the fire marshal are substantially supported by the evidence and whether his action was arbitrary, capricious or fraudulent. The defendant relies primarily upon a regulation (K.A.R. 22-12-1, now K.A.R. 1980 Supp. 22-3-1), which adopted by reference portions of the national fire protection association life safety code.
K.S.A. 1979 Supp. 31-133 provides in pertinent part:
“31-133. Same; rules and regulations for safeguarding life and property from fire and explosion; mandatory requirements, (a) The state fire marshal shall adopt reasonable rules and regulations, consistent with the provisions of this act, for the safeguarding of life and property from the hazards of fire and explosion. Such rules and regulations shall include but not be limited to the following:
(3) The construction, maintenance and regulation of exits and fire escapes from buildings and all other places in which people work, live or congregate from time to time for any purpose, including apartment houses, as defined by K.S.A. 1976 Supp. 31-132a, but such rules and regulations shall not apply to buildings used wholly as dwelling houses containing no more than two (2) families;
(9) Other safeguards, protective measures or means adapted to render inherently safe from the hazards of fire or the loss of life by fire any building or other place in which people work, live or congregate from time to time for any purpose, except buildings used wholly as dwelling houses containing no more than two (2) families.
(b) Any rules and regulations of the state fire marshal adopted pursuant to this section may incorporate by reference specific editions, or portions thereof, of nationally recognized fire prevention codes.
(c) The rules and regulations adopted pursuant to this section shall allow facilities in service prior to the effective date of such rules and regulations, and not in strict conformity therewith, to continue in service, so long as suck facilities are not determined by the state fire marshal to constitute a distinct hazard to life or property.” (Emphasis added.)
Pursuant to K.S.A. 31-133(b), the state fire marshal promulgated K.A.R. 22-12-1, which became effective January 1, 1973, and provided:
“Section 11-0001, a, b, c, and d of the national fire protection association life safety code number 101, 1970 edition is hereby adopted by reference.”
The portions of the life safety code adopted by the regulations require that an apartment must have at least one exit with a side-hinged swinging door. The sixty-eight apartments in question do not meet this requirement. Appellant argues there is insufficient evidence to support a conclusion that all sixty-eight doors “constitute a distinct hazard to life or property” and therefore, the grandfather clause in K.S.A. 1979 Supp. 31-133(c) protects appellant from the order directing a change in all the doors. The order and determination of the fire marshal was based solely upon the complaint of Ms. Chatham, the inspection of her apartment by Mr. Darrell Dibbern, and the requirements of the life safety code. There can be no logical argument that the apartment of Ms. Chatham does not constitute a distinct hazard to life or property. It is undisputed that she was frozen into or out of her apartment on several occasions for various periods of time, and once was confined for nearly twenty-four hours. Such a situation is an obvious hazard to life or property. Does that determination automatically justify the conclusion that all sixty-eight doors are such a hazard? We think not. There was no evidence whatsoever that there was ever a malfunction in any of the doors in buildings 3740 and 3750. There was no evidence that buildings 3720, 3740 and 3750 were subject to the drainage and soil conditions which caused the settling of building 3730. In fact, 3720 lies east and west, while the other buildings lie north and south, and it presumably is not affected by the drainage from the east. The sole incident involving building 3720 was in 1977 and apparently after corrective work was undertaken there have been no other complaints of freezing doors in that building. There was no evidence the doors in 3720,3740 and 3750 constituted a hazard to life or property other than the fact they were the same type and quality as those in 3730. To the contrary, the plaintiff’s expert was of the opinion they did not constitute a hazard and lacking such a showing, K.S.A. 1979 Supp. 31-133(c) protects plaintiff from the provisions of the life safety code when it was not a requirement at the time the buildings were constructed. The judgment of the district court as to buildings 3720, 3740 and 3750 must be reversed and the order of the fire marshal as to those buildings set aside.
However, building 3730 is another matter. Four different apartments in that building have experienced difficulties with frozen doors, two of them on more than one occasion. Mr. Dressier testified that due to soil and drainage problems, the west side of the building, where the entrances are located, had settled causing the balcony to partially give way, resulting in the of fending doors becoming “scrunched” and allowing cold air to infiltrate and cause ice formation on the interior of the doors and in the track at the bottom of the doors. Such a condition obviously must be corrected. The fire marshal found such a condition to be a hazard to life or property and based upon the requirements of the life safety code considered the only solution to be replacement of the doors with side-hinged, swinging doors.
Building 3730 complied with all existing codes and requirements at the time of its construction. Evidently, problems with the doors have developed gradually over a period of time due to the improper drainage which has caused the building to settle. Mr. Dressier indicated that to change from sliding to swinging doors would destroy or ruin the architectural integrity of the building and presumably affect the entire complex. We do not think such a drastic remedy is necessary to comply with the statutes and regulations although we do find that there was substantial competent evidence to uphold the determination that all of the doors in building 3730 should be replaced. The building constructed in 1965 is obviously subject to an ongoing need for repairs. The building complied with the necessary building codes at the time of construction and the replacement of the doors would constitute necessary repairs which have become required due to the passage of time and other factors. It would seem to be obvious that if the west side of the building is settling then it is only a matter of time until other apartments in the building experience the same difficulties encountered by Ms. Chatham. Mr. Dressier testified there are high quality sliding doors which, combined with proper repairs to the balcony, door casings, etc., would alleviate the problem of freezing and in some ways would be preferable to and safer than hinged, swinging doors. We hold that the decision of the district court affirming the order of the fire marshal that the doors in building 3730 be replaced should be affirmed subject, however, to the provision that the plaintiff shall have the option to install either new high quality sliding doors or hinged, swinging doors, so long as whichever style is selected will avoid further freezing of the doors, thereby eliminating the hazard which now exists.
The judgment of the district court is reversed in part, affirmed in part as modified, and remanded for further proceedings in accordance with the views set forth herein. | [
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The opinion of the court was delivered by
Holmes, J.:
The City of Topeka, Kansas, appeals from a judgment granted the plaintiff, James P. Nordstrom, a Topeka attorney, in an action to recover attorney fees for services rendered while representing a Topeka policeman in an action under K.S.A. 1979 Supp. 44-504. The facts are not in dispute.
On March 17, 1979, Patrick J. Stenger was injured in an automobile accident in Topeka. Stenger’s injuries arose out of and in the course of his employment as a police officer by the City of Topeka. The City of Topeka, a self-insured employer under the Workmen’s Compensation Act, made medical and compensation payments to Stenger in the amount of $2,093.49.
Stenger retained Nordstrom to represent him in pursuing a tort claim against Ronald J. Tichenor, the other driver involved in the automobile accident. Nordstrom and Stenger agreed that Nordstrom would handle the case for a 25% contingent fee. On June 5, 1979, the City of Topeka notified Nordstrom that it claimed a subrogation interest in any recovery against Tichenor.
Thereafter, Nordstrom was able to negotiate a settlement with the insurance carrier for Tichenor in the amount of $15,000.00. Two drafts were issued by the insurance company. One, in the amount of $12,906.51, was payable to Stenger and Nordstrom. The other, in the amount of $2,093.49, was payable to Stenger, Nordstrom and the City of Topeka. Nordstrom made a demand upon the City of Topeka for an attorney fee amounting to 25% of the $2,093.49 subrogation claim of the City. The City refused to pay any attorney fees and demanded the entire $2,093.49. Nordstrom then tendered the second draft into court at the time he filed this action seeking a declaratory judgment to determine the proper distribution of the proceeds of the draft.
With the foregoing facts agreed upon by the parties, defendant moved for dismissal and plaintiff moved for summary judgment. Plaintiff s motion for summary judgment was sustained by the trial court, which allowed plaintiff an attorney fee of $523.37, or 25% of the amount of workmen’s compensation benefits paid by defendant to Stenger. The balance of the draft, less $35.00 court costs, was ordered paid to the City. The City has appealed.
The sole issue presented to this court is whether an attorney representing a worker who has received workmen’s compensation benefits and who successfully recovers, by settlement or litigation, a claim against a third party tort-feasor, and thereby recovers the worker’s compensation benefits paid by the employer, is entitled to a reasonable attorney’s fee from the employer. Plaintiff contended in the trial court, as he does in this court, that under the provisions of K.S.A. 1979 Supp. 44-504(c) he is entitled to a reasonable fee for the recovery obtained on behalf of the City. Defendant, based upon its interpretation of the same statute, denies it has any liability to plaintiff.
Prior to 1955 the workmen’s compensation act contained no provisions for the payment of attorney fees by either the employee or employer in an action against a negligent third party. In 1955, the statute, G.S. 1949, 44-504, was amended to read:
“44-504. Remedy against negligent third party; employer subrogated, when; credits against future payments; limitation of actions; attorney fees. When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured workman, or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien: Provided, That whenever any judgment in any such action shall be recovered by the injured workman, his dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment shall be credited against future payments of said compensation or medical aid. Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, and if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen (18) months from the date of such injury. Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a deceased workman may have against any other party for such injury or death, and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court." (Emphasis added.)
In 1974, the legislature undertook a major revision of the workmen’s compensation act. L. 1974, chs. 203 and 204. However, 44-504 remained virtually unchanged and now reads:
“(a) When the injury or death for which compensation is payable under the workmen’s compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the workmen’s compensation act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.
(b) In the event of recovery from such other person by the injured workman or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien: Provided, That whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured workman, his dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of said compensation or medical aid. Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, and if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen (18) months from the date of such injury.
(c) Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a deceased workman may have against any other party for such injury or death, and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. The court shall fix the attorneys’ fees which shall be paid proportionately by the employer and employee in the amounts determined by the court. ” (Emphasis added.)
The City argues that the last sentence of 44-504(c) allows the attorney fees to be apportioned, to the employer and employee only in those cases where the employer brings the action under 44-504(c) and does not apply to an action brought by the employee under 44-504(h). In support of its argument the City contends that the division of the statute into paragraphs (a), (b) and (c) in 1974 evidences a clear intent that the attorney fee provisions only apply to actions under paragraph (c).
Plaintiff, on the other hand, argues that the last sentence of 44-504(c) applies to the entire statute and is applicable to actions against third party tort-feasors whether prosecuted by the employer or employee and that the division of the statute into paragraphs in 1974 was not an expression by the legislature that apportionment of fees is limited to actions under paragraph (c). He asserts it would be grossly unfair to allow apportionment of the attorney fees in actions brought by the employer to recover its payments made to the employee but force the employee to pay 100% of the attorney fees when thé employee brings the action and in doing so recovers for the employer its workmen’s compensation payments. In the instant case Stenger contracted with attorney Nordstrom for representation in collecting from the third party tort-feasor. The City had full knowledge of such represen tation as is evidenced by its putting Nordstrom on notice of a claim to a lien upon any recovery from the third party tort-feasor. Stenger and Nordstrom agreed that Nordstrom would handle the matter on a contingent fee basis of 25% of the amount recovered. Thus, upon the recovery of a settlement of $15,000.00, Nordstrom became entitled to a fee of $3,750.00. Should the City be allowed, under the statute, to take a free ride and recover its entire $2,093.49 without contributing anything to Nordstrom’s fee? We think not.
The question is one of first impression before this court, although there are literally dozens of decisions from other jurisdictions which have considered the issue. In analogous cases from other jurisdictions substantial, respectable authority for either interpretation may be found. For an extensive compilation and review of such decisions, see Annot., 74 A.L.R. 3d 854. See also 2A Larson, Workmen’s Compensation Law § 74.32. However, nearly all of the decisions from other jurisdictions are based upon the interpretation of the particular state statutes involved, none of which appear to be identical to ours, and therefore are not particularly helpful in answering the question before this court. We see nothing to be gained by an extensive recitation of the theories and rationales followed by other jurisdictions in deciding the question.
It is obvious that the statute, K.S.A. 1979 Supp. 44-504, when read in its entirety, and when considered with its predecessors, is subject to interpretation as argued by both parties. That is, the statute can logically be interpreted tó mean that the last sentence thereof applies regardless of who brings the action or it can logically be interpreted to apply only to actions by the employer.
The first rule of statutory construction is to ascertain, if possible, the intent of the legislature. Brinkmeyer v. City of Wichita, 223 Kan. 393, Syl. ¶ 2, 573 P.2d 1044 (1978). As stated in Brinkmeyer, it has long been the rule in this court that workmen’s compensation statutes are to be liberally construed in favor of the workman. When a workmen’s compensation statute is subject to more than one interpretation, it must be construed in favor of the workman if such construction is compatible with the legislative intent. As we have already indicated, the provisions of 44-504 are subject to two interpretations; one favorable to the employee and one favorable to the employer. To say that the statute forces the employee to pay all the fees incident to a recovery from a third party tort-feasor if he brings the action but the fees will be apportioned when the employer brings the action appears grossly unfair to the employee and may have a definite chilling effect upon the prosecution by the employee of his cause of action. Such an interpretation would discourage the employee from bringing his own suit as he alone would have to bear all the cost of attorney fees. If the employee delays bringing suit, the cause of action is assigned to the employer and the employer then pays a proportionate share of the fees. The employee is forced to choose between a quicker and lesser recovery and a delayed, and perhaps larger recovery. We do not believe this was the intent of the legislature and such a construction of the statute would fly in the face of our long-standing rule committing this court to a liberal construction of the act in favor of the workman. In Brinkmeyer we stated:
“Throughout our many decisions construing the workmen’s compensation act since its enactment, this court has been firmly committed to the rule of liberal construction of the act in order to award compensation to the workman where it is reasonably possible to do so, and to make the legislative intent effective and not to nullify it. Chapman v. Wilkenson Co., 222 Kan. 722, 567 P.2d 888; Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P.2d 317; Odell v. Unified School District, 206 Kan. 752, 481 P.2d 974; Piper v. Kansas Turnpike Authority, 202 Kan. 771, 451 P.2d 152; Bright v. Bragg, 175 Kan. 404, 264 P.2d 494; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P.2d 684. Justice Burch, speaking in 1920 of an early workmen’s compensation act, said:
“ . . The remedy . . . provided for in the workmen’s compensation act . . . is to be liberally interpreted and flexibly applied, to accomplish its peculiar purpose . . .’ Roper v. Hammer, 106 Kan. 374, 377, 187 Pac. 858.” p. 396.
Our research has disclosed only two cases wherein the question has been considered or discussed by this court. In the early case of Copeland v. Martin Metal Mfg. Co., 141 Kan. 725, 42 P.2d 982 (1935), this court held that the employer was entitled to receive credit for the full amount of its compensation payments undiminished by any portion of the employee’s attorney fees. This case was decided under a different type of statute long before the 1955 amendments which first provided for apportionment of attorney fees and therefore is not considered to be controlling in the application of the present statute. In U. S. Fidelity & Guaranty Co. v. Allied Mutual Cas. Co., 190 Kan. 383, 375 P.2d 619 (1962), an attempt was made to recover attorney fees from the third party tort-feasor based upon 44-504 and the court correctly pointed out that the statute did not apply. In that case we stated:
“Appellee based its claim for attorney fees on G.S. 1961 Supp., 44-504, which provides for recovery against some person other than the employer, the periods of time in which the employee and his employer can commence such an action, and concludes with the following sentence:
“ ‘The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.’ (Our emphasis.)”
“In applying the above provision to our present case, we think it can be interpreted only as placing the duty to pay attorney fees on the claimants and their employer and not upon the third party tort-feasor.” p. 384.
Neither of the foregoing cases is determinative of the question before the court'.
We hold that K.S.A. 1979 Supp. 44-504(c) which provides “[t]he court shall fix the attorneys’ fees which shall be paid proportionately by the employer and employee in the amounts determined by the court” applies to actions and claims brought by the employee under 44-504(£>), and to those brought by the employer under 44-504(c).
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The opinion of the court was delivered by
Herd, J.:
Defendants Jimmie K. Nelms and Walter Myrick were tried together and convicted by a jury of premeditated and felony murder (K.S.A. 21-3401); aggravated kidnapping (K.S.A. 21-3421) and unlawful possession of a firearm (K.S.A. 21-42Q4[1][¿]). Both defendants were sentenced to two life terms for murder and aggravated kidnapping and 6 to 20 years for unlawful possession of a firearm, to run consecutively. The convictions arose from the circumstances surrounding the death of Kansas Highway Patrolman Conroy G. O’Brien.
At approximately 6:00 a.m. on May 24, 1978, Steven Cahoon, a security guard company manager traveling the Kansas Turnpike, found Conroy G. O’Brien dead in a ditch in northern Butler County at mileage marker 94.5. O’Brien had been struck on the back of the head and shot twice through his left ear. The facts surrounding this tragic incident were later revealed at trial as follows. Shortly after daybreak on the 24th, O’Brien stopped a 1973 white over gold Mercury Marquis for speeding. Walter Myrick, 25, was the driver. Jimmie K. Nelms, 31, was the owner of the car and back seat passenger at the time the car was stopped. Stanford Swain, 21, was the front seat passenger. The three occupants had met in Tulsa, Oklahoma, the previous evening where they agreed to travel together. Nelms was having domestic problems and had decided to go to California. Myrick and Swain agreed to buy half the gasoline in exchange for a ride to Denver. With Nelms driving, the three departed Tulsa and drove west to 1-35 highway, then turned north. During the trip, each man smoked a couple of marijuana cigarettes. The three traveled northward, intending in Wichita to proceed on 1-135 to Salina and then west to Denver on 1-70.
Somewhere between Perry, Oklahoma, and Wellington, Kansas, Nelms turned the driving over to Myrick and retired to the back seat for some needed sleep. Myrick missed the 1-135 exit at Wichita and followed the turnpike toward El Dorado and Mat-field Green. At about 5:00 a.m. Myrick noticed a highway patrol car approaching from the rear with its signal light flashing. He alerted Swain and Nelms, pulled to the side of the road and stopped. Trooper Conroy O’Brien stopped his car directly behind Nelms’ vehicle. He advised Myrick he was speeding and asked him to step back to the patrol car. Myrick complied, entering the trooper’s car on the passenger side. O’Brien sat on the driver’s side to make out the ticket.
When Myrick left the car, Nelms muttered to Swain, “I am going to kill that mother fucker.” He took his gun from the glove compartment and walked back to the passenger’s side of the trooper’s car. O’Brien told Nelms to come around to the driver’s side. Nelms complied, walking in front of the trooper’s car. He walked past the driver’s door, stopped as he reached the back door, turned and brandished his handgun, surprising O’Brien. O’Brien was ordered to get out of the car and to place his hands on the top of his head. Nelms and O’Brien then walked behind the trooper’s car with Nelms directing O’Brien to proceed to the ditch. As they passed the passenger side of the car, Myrick got out and followed the two of them quite closely. At this point, Swain could see from Nelms’ car that O’Brien’s gun had been taken from him but Myrick remained unarmed. Nelms directed O’Brien to lie down in the ditch. O’Brien pleaded: “Don’t treat me this way.” Nelms struck the trooper across the back of his head with the barrel of O’Brien’s pistol which Nelms had obtained. When O’Brien fell to the ground, Nelms fatally shot him twice through the head with the same pistol.
Thereafter, Nelms and Myrick hurried back to Nelms’ automobile. Nelms explained he had to kill the trooper and got behind the wheel. Swain remained a front seat passenger and Myrick got in the back seat. The three hurriedly left the murder scene. In their haste to find a way off the turnpike, they drove past the Emporia exit. They eventually stopped at the Emporia service area where they bought $12 worth of gasoline. While at the service station, Nelms studied the map which led him to turn around and go back to the Emporia exit where they left the turnpike and proceeded west on U.S. Highway 50.
Nelms’ car was not running well. After going a few miles west on U.S. 50, Nelms turned off the highway onto a dirt road for the stated purpose of stealing a car, killing the owner, if necessary, in the process. They drove to a farmhouse and luckily no one was home. They returned to U.S. 50 and turned west to U.S. Highway 77, then north toward Herington. A few miles after turning north, the trio met highway patrolman Charles Smith. Smith was instantly suspicious and made a U-turn and followed defendant’s vehicle. The defendants observed Smith’s action and turned off the highway onto a dirt road. At this juncture, Myrick threw Trooper O’Brien’s gun out of the car window. Ironically, the country road turned out to be a dead end. With Trooper Smith rapidly approaching, Nelms drove his car first through a metal gate, then a wire gate, and out into a pasture, where he spun around and started back to the road. At this point Swain jumped from the car and ran to a nearby creek where he hid until captured. Nelms’ car and the patrol car stopped after a head-on collision at the gate and a gun battle ensued. Smith saw both Nelms and Myrick brandish firearms and saw one shot fired from Nelms’ side of the car. He got behind the dashboard and heard a few more shots, some of which penetrated his windshield. Smith returned fire through the windshield. He didn’t see or hear any shots from Myrick’s side of the car but saw Myrick point the gun at him and heard it click a few times. The trooper then moved out of the car and crouched behind the protection of his open door and continued to do battle, now with his riot gun. Myrick left Nelms’ car and ran across the pasture. Nelms remained but had now moved to the trunk of the car where, it was later learned, he went to replenish his supply of ammunition. In the meantime, Smith continued to fire his riot gun and had radioed for help. Nelms was shot in the eye by one of the shotgun pellets. Smith yelled at him and told him to get away from the car, believing he might be surrounded by the two, with Myrick behind him in the field and Nelms in front of him. Nelms complied by joining Myrick, who was hiding by a bridge. Additional troopers arrived and Nelms and Myrick were found and arrested by 10:00 a.m. They were given Miranda warnings, placed under arrest and held in separate cars while the law enforcement people, now numbering 200 to 300, looked for Swain who was hiding in the bushes. He was captured at 10:55 a.m.
Salina Police Chief John Woody was assigned the task of interviewing Myrick. Myrick was uncommunicative until he saw Swain had been apprehended, whereupon he asked Chief Woody to have Swain brought to the car and stated, “We will tell you what happened.” After Swain was brought to the car, Myrick said, “Let’s tell them that’s how it really was, that Chico did it,” referring to Nelms. Both Swain and Myrick began to talk, often at the same time, with Woody sitting between them in the rear seat of the patrol car. The story which unravelled was essentially the same one later related at trial by Swain. Myrick and Swain agreed on the facts surrounding Conroy O’Brien’s death. Swain had been given a Miranda warning prior to joining Myrick.
Nelms, who had been wounded in the gun battle, was taken to St. John’s Hospital in Salina and then to Wesley Medical Center in Wichita after brief emergency treatment at Herington Hospital. He was accompanied by Police Lt. Gary Hindman and two other officers. Nelms claimed at trial he had been subjected to police brutality at the hands of these officers in the form of hitting and slapping. The officers denied the accusations.
Myrick and Swain were separately transported to the Herington jail where Myrick was again interviewed by Chief Woody and a K.B.I. agent, Jesse Gragg. During the interview, Myrick admitted the .38 RG40 snub-nosed revolver was his gun and that he had hidden it. At an in camera hearing, Myrick contended the statement was inadmissible, as it was made after he had requested an attorney. The trial court admitted it into evidence.
After reaching the Herington jail, Swain was again interviewed — this time by two K.B.I. agents, Gary Davis and Ray Macy. Later that afternoon, Swain’s statement was taken before a court reporter. Swain and Myrick were then transported to the Butler County jail at El Dorado where Nelms joined them a few days later after being released from a Wichita hospital where he had undergone treatment for his wounds. The court then appointed attorneys for each of them. David All represented Swain, Doyle Eugene White, Jr. represented Myrick and Wallace F. Davis represented Nelms.
From the moment Trooper O’Brien’s death became known, intense news coverage of the shootout, capture and subsequent trial flooded the state. At the same time, all three suspects were charged with premeditated murder, felony murder, aggravated kidnapping and conspiracy. Later the conspiracy charge was dismissed and the charges of unlawful possession of a firearm were added. The preliminary hearings were held on June 21, 1978. The trial court made the following order entitled “Rules for June 21, 1978.”
“In order to insure the orderly and decorous conduct of the court’s business and to protect the rights of all parties concerned, the court has ordered that the following rules be placed in effect: 1) All persons desiring access to the Courtroom are subject to inspection by metal detectors. Packages and other closed items will not be permitted in the Courtroom. 2) Members of the public attending Court proceedings should be in their places before Court convenes - late arrivals will not be seated until the next recess. 3) Persons leaving in the middle of proceedings will not be re-admitted until the next recess. Lingering in halls adjacent to the Courtrooms will not be permitted.”
An identical order was issued for the trial which began August 21, 1978. That order also banned cameras and recording equipment.
At the preliminary hearings, sheriff’s deputies and police of ficers guarded the door leading to the courtroom and a deputy armed with a rifle stood guard outside the judicial building.
On June 29, 1978, a motion was filed to consolidaté all of the cases for trial. Nelms moved for a change of venue based on his own affidavit, and all three defendants moved for severance on the grounds of antagonistic defenses. The court ordered the cases consolidated and overruled the other motions. Several days before trial, Swain entered a plea of guilty to aiding a felon (K.S.A. 21-3812) and an aggravated weapons charge (K.S.A. 21-4204[l][b]) in exchange for dismissal of the other charges. He received a sentence of 6-20 years, weapons violation; 1-5 years, aiding a felon. The consolidated cases against Nelms and Myrick proceeded to trial on August 21, 1978. Nelms renewed his motions for a change of venue and severance immediately prior to trial. The basis for the renewal motion for a change of venue was the appearance of two newspaper articles published on August 16 and 17, 1978, which reported the disposition of Swain’s case stating “the State has validated the testimony of their star witness . . . .” The articles reported that Norman Manley, assistant Butler County attorney stated: “Based on the evidence that we have, Swain pleaded guilty to what we believe he was guilty of.” He also stated “that Swain had not seen one of the suspects for two years until last May, and that he knew the other one only slightly . . . T don’t think he had anything to do with it.’ ” Nelms maintained the newspaper account was so prejudicial to him he couldn’t get a fair trial in Butler County where the newspaper was circulated. The court again denied both the motion for change of venue and for severance.
At the third pretrial conference, defense counsel filed motions in limine seeking an order excluding evidence of the Herington shootout. The motion was denied on the grounds the defendants were charged with unlawful possession of firearms, weapons one could reasonably conclude were in defendants’ possession while in Butler County.
The consolidated trial commenced on August 21, 1978, as scheduled with a preliminary motion from Nelms’ attorney objecting to the heavily guarded areas in the courtroom and around the courthouse. Myrick’s attorney joined in the motion. The court denied the motion with the following statement:
“You are all aware of the situation just as much as I am. I intend to caution prospective jurors that they should not be influenced by uniforms and that they are to make their decision from what is introduced in evidence in the case and, for the record, the Court feels that it would be remiss if it did anything else. Going back to how the defendants were arrested and what occurred at that time and the conversations with the sheriff, I felt that some sort of security was necessary for all parties that are going to be in the courtroom, not only the defendants, but everybody else and that is why I am checking the prospective jurors is for their safety and no one elses and, of course, the fact that I just want to keep guns out of the courtroom. I think that I have the inherent right to take whatever measures to see that they are kept out, and no matter who goes in there, I have advised the sheriff that I didn’t want guns in the courtroom, and I assume that he is following my instructions. If I see something a little different, why I will certainly let him know, but it is for your safety, too, gentlemen. If a gun goes off in there, we are all subject.”
The court gave the following limiting admonition to the jury panel:
“Certain efforts of security have been made and you have undoubtedly seen a large number of oiflcers, but I don’t want you to be concerned about the number of law enforcement oiflcers around the courtroom at this time . . . The case involves Conroy G. O’Brien who was a member of the Kansas Highway Patrol and many officers, I am sure, made the investigation and the mere fact that there are officers around here and you have gone through — I don’t know what they call it — a check for — with a metal detector, that shouldn’t concern you. . . . Now, one other thing that I do want to caution you about, this case has received the attention of the news media certainly more than the average case. I feel sure that all of you have either read some if not all of the newspaper items and also heard it reported on the radio and TV. These defendants have a right and should be tried by a jury and, of course, not by a newspaper or radio station or TV station, and they should be tried in this courtroom and not somewhere else. If you are selected as a juror your judgment must determine from what you hear from the witness stand in this courtroom and from what is admitted as evidence and not from what you may have heard about this case some place else and outside of the courtroom.”
As voir dire began, Nelms was in the courtroom wearing a suit and a white shirt and Myrick wore a brown jump suit used by prisoners in the Butler County jail. Myrick sat in an obscure corner of the courtroom throughout the trial without shoes for two days. He was later provided bathroom sandals. No objection was made to these matters.
The courtroom was hot and noisy due to the use of fans. The members of the jury panel became tired and short-tempered as a result of the heat. Many were sleepy. In spite of the impediments, the jury was passed for cause at the end of the second day of voir dire. Nelms challenged only four jurors for cause. The challenges were successful on three. Myrick asserted no challenges for cause. The court excused six jurors for reasons unrelated to publicity and two were released for reasons related to publicity. There were no other disqualifications for cause. The defendants reasserted their objections to the panel, which were overruled.
The conflicts in the defenses of Nelms and Myrick began in the opening statements and continued during the trial. Throughout the trial, Nelms’ attorney referred to defendant Myrick by his nickname, “Iron Head.” Myrick’s attorney retaliated by calling Nelms “Blanche” and “Black Jesus,” two of Nelms’ many nicknames. Nelms claimed Myrick and Swain conspired to blame him while talking to Chief Woody at Herington shortly after capture. He also contended he had been asleep in the back seat of the car, had awakened at the sound of a shot and found Myrick and Swain standing over the body of the slain trooper. Myrick did not testify, making his defense primarily dependent upon cross-examination and Swain’s version of the events of May 24, 1978. The testimony of Police Chief Woody about the conversations of Myrick and Swain immediately after capture and an interview with Myrick at the Herington jail could have developed into a possible confrontation issue but the difficulty was resolved when Nelms waived his right to confrontation with Myrick.
The jury returned a verdict against both defendants on August 30, 1978, and, after the trial court overruled a motion for a new trial filed September 11, 1978 by Myrick, this appeal was filed. One year later, on August 30, 1979, Myrick filed another motion for a new trial based on newly discovered evidence, ineffective counsel, harassment by the deputy sheriff, appointed counsel’s conflict of interest, improper clothing and misconduct of the jury. He requested an evidentiary hearing. The trial court denied the motion for a new trial and the request for the evidentiary hearing.
The appellants have raised several issues for review, both in concert and individually. Both defendants allege the trial court erred in instructing the jury as follows: “There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.”
In Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979), the United States Supreme Court held that failure to give the second sentence of this instruction shifted the burden of proof to the defendant and was therefore improper. This issue was extensively reviewed by the Kansas Court of Appeals in State v. Acheson, 3 Kan. App. 2d 705, 712, 601 P.2d 375, rev. denied 227 Kan. 927 (1979), and that discussion will not be repeated in this case. The rationale of the Court of Appeals was adopted in State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022 (1980), where we held “[T]he two-sentence instruction given creates ‘a permissive presumption and does not shift the burden of proof to the defendant’ . . . .” We find no reason to change the rule. This issue is therefore without merit.
Defendants contend the trial court erred in consolidating their trials and in denying their motions to sever. K.S.A. 1979 Supp. 22-3202(3) provides:
“Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Nelms and Myrick were charged with offenses which arose out of the same action or transaction. The specific rules regarding joinder of defendants were recently stated in State v. McQueen & Hardyway, 224 Kan. 420, 423, 582 P.2d 251 (1978):
“ ‘Two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.’ ”
See also State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978); State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977); State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255 (1975); State v. Wheeler, 215 Kan. 94, 523 P.2d 722 (1974). Unquestionably, the facts and circumstances of this case meet the requirements set out above. The trial court did not abuse its discretion in ordering the defendants to be tried together.
The question of severance presents a more difficult question. Separate trials should be granted under K.S.A. 22-3204 “when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant.” State v. McQueen & Hardyway, 224 Kan. at 423. We held in State v. Cameron & Bentley, 216 Kan. at 649:
“ ‘The usual grounds for severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.’ ”
The most compelling ground for severance is that of antagonistic defenses. Counsel for both defendants made every effort to show the defendants had antagonistic defenses, even to the extent of acting belligerent toward each other and referring to the defendants by various derogatory street names and alluding to the danger of racial classification by the jury. They also argued a classic case of antagonistic defenses is presented when each defendant blames the other for the offenses charged. The arguments do not fit the instant case. Both defendants were charged with the same offenses, arising out of the same transaction, and both were convicted. Nelms accused Myrick of killing Trooper O’Brien and Myrick relied on the testimony of Swain which was inculpatory to both defendants. Proof of who was the triggerman was immaterial. Myrick and Nelms were together in the commission of the crime and both were properly charged as principals. Their defenses placed both defendants at the scene; both possessed weapons; both fled from the scene in Nelms’ car with Nelms driving and both participated in the gun battle at Herington. There was not sufficient proof of antagonistic defenses. The fact the defendants did not like or respect each other and the fact they are both black, being tried to a white jury, did not create a showing of prejudice to warrant severance of their trials. We have repeatedly held that the granting of separate trials pursuant to K.S.A. 22-3204 lies within the sound discretion of the trial court. In State v. Sully, 219 Kan. 222, 224, 547 P.2d 344 (1976), this court stated:
“ ‘Generally, an order for a separate trial of a defendant jointly charged with another must be based upon some ground sufficient to establish actual prejudice so as to require separate trials’ (State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P.2d 1255). Although a single trial may be desirable from the standpoint of economical and efficient criminal procedure, the right of a defendant to a fair trial must be the overriding consideration.”
Did the trial court abuse its discretion in denying the motion for severance of Nelms’ and Myrick’s trials? Admittedly, Myrick had a more difficult task of defending himself being tried with Nelms, the triggerman according to Swain. But Swain’s testimony was also inculpatory to Myrick, placing him by the side of Nelms at the execution, making no move to prevent the killing. Swain also named Myrick as the person who disposed of O’Brien’s ticket book and gun. A separate trial would not have changed that evidence. We find the trial court did not abuse its discretion in denying the motion to sever the trials.
Defendant Nelms alleges the trial court erred in denying his motion for a change of venue. The murder of Trooper O’Brien evoked a feeling of outrage all over the State of Kansas. The press, radio and TV responded in kind. The act was shocking and was resented by people everywhere. Those facts alone, however, do not entitle a defendant to a change of venue. The law with respect to change of venue was recently set forth in State v. May, 227 Kan. 393, 394-395, 607 P.2d 72 (1980):
“ ‘A change of venue in a criminal case lies within the sound discretion of the trial court. [Citations omitted.] The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. [Citations omitted.] Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.’
“ ‘Furthermore, prejudice must be established “not as a matter of speculation but as a demonstrable reality.” ’ ”
See State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Gander, 220 Kan. 88, 551 P.2d 797 (1976); State v. Randol, 212 Kan. 461, 513 P.2d 248 (1973); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972); State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360 (1971).
The news media releases were factual and contained no derogatory personal references to the defendants, leaving the conclusion which might be drawn from the facts to the listener, viewer or reader. The reporting was generally objective, and there is no evidence of an attempt to influence the outcome of the trial. See State v. Sanders, 223 Kan. 273, 279, 574 P.2d 559 (1977). Because of the type of crime and the statewide publicity, it is doubtful if there are any counties in Kansas where the news of the crime had not reached.
Defendant draws his own conclusions about the jury being “pre-conditioned” by publicity but fails to present evidence of that alleged bias. It is not the conclusions of a defendant which prove prejudice. Prejudice can be shown only by specific facts and circumstances. State v. Lamb, 209 Kan. at 465; State v. Welch, 121 Kan. 369, 372, 247 Pac. 1053 (1926). Finally, we note Nelms’ experience in voir dire supports the court’s denial of a change of venue. A jury panel was passed for cause after two days of voir dire. From a panel of 135, twelve served on the panel, two served as alternates, 51 were peremptorily challenged and eleven were excused for cause. Nelms exercised only four challenges for cause and was successful in three of his challenges. Six were excused for reasons unrelated to publicity. There was no difficulty selecting a fair and impartial jury, an important consideration in weighing a claim of prejudice. See State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. denied 385 U.S. 827 (1966); United States v. Daddano, 432 F.2d 1119 (7th Cir. 1970), cert. denied 002 U.S. 905 (1971). The appellant has failed to sustain his burden of proof that such prejudice existed against him in Butler County in August 1978 that he was prevented from obtaining a fair trial. The issue is without merit.
Defendants allege the trial court erred in ordering too much security in and around the courtroom and the presence of the armed guards and surveillance equipment resulted in prejudice to both men.
This issue was first raised at a pretrial conference as set out fully in the facts. Defendants made no inquiry concerning the effect of security on the potential jury during voir dire. The basic principle involved is an accused’s right to the presumption of innocence until guilt is proved beyond a reasonable doubt; however, the accused’s rights must be balanced with the duty of the trial judge to protect the lives of the trial participants and to protect the institution of the judicial process. It is clear the judiciary has the inherent power to use the means necessary to protect and preserve dignity, order and decorum in a criminal trial.
In the case at hand, the trial court had been advised by the defendants that feelings were running high in Butler County against them. In addition, the sheriff had advised the court the defendants might be in danger. Even though the trial judge might doubt the authenticity of the information, he could not ignore it. He was responsible for the lives of all persons present in the courtroom and had the duty to do what he deemed necessary under the circumstances to properly afford the needed protection, balancing the need for heavy security against the defendants’ right to a fair trial. With that in mind, all guns were barred from the courtroom and all who entered were required to submit to inspection with a metal detector. From this distance, it would be easy to find security was overdone, but placing ourselves in the position of the trial judge at that time and place, we find it a proper exercise of the court’s power to take the security measures necessary to protect the parties and the judicial process. The balancing of the competing interests lies within the discretion of the trial judge, for it is he who is best equipped to decide which security measures should be adopted. United States v. Samuel, 433 F.2d 663 (4th Cir. 1970), cert. denied 401 U.S. 946 (1971), see also 431 F.2d 610 (4th Cir. 1970); Gregory v. United States, 365 F.2d 203 (8th Cir. 1966); Guffey v. United States, 310 F.2d 753 (10th Cir. 1962). No demonstrable prejudice to appellants was shown. The issue is without merit.
Defendant Nelms argues the trial court erred in admitting into evidence an outstanding Missouri warrant issued against him for a felony for which he had not been convicted.
The State introduced the testimony of Chad Simmons who had identified Nelms from a photographic lineup as one accused of robbing a jewelry store in Springfield, Missouri, on April 20, 1978. Simmons also identified the derringer pistol found at the scene of Nelms’ capture in Herington as the weapon used in the Missouri robbery. Detective John E. Smith of Springfield, Missouri, testified that pursuant to Simmons’ identification of Nelms, a criminal warrant for Nelms’ arrest was issued May 16, 1978. Evidence was also admitted showing Myrick was wanted by law enforcement officials in connection with a felony bench warrant and failure to appear on a felony theft charge in Oklahoma under his alias, Tommy Spear. Myrick is not directly challenging the introduction of that evidence in his brief on appeal. The State maintains the evidence is admissible under K.S.A. 60-455 to show motive and intent for the murder. Nelms argues the evidence is inadmissible to show motive or intent without proof he was aware of the outstanding warrant or without a conviction on the charges contained in the warrant.
The rules regarding the admission of evidence of prior crimes or civil wrongs were stated in State v. Johnson, 222 Kan. 465, Syl. ¶ 2, 565 P.2d 993 (1977):
“In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact - i.e. that it is substantially in issue, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.”
See State v. Treadwell, 223 Kan. 577, 581, 575 P.2d 550 (1978); State v. Faulkner, 220 Kan. 153, Syl. ¶ 1, 551 P.2d 1247 (1976).
Conviction is not a prerequisite to introduction of a prior offense under K.S.A. 60-455. State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977); State v. Powell, 220 Kan. 168, Syl. ¶ 1, 551 P.2d 902 (1976).
As to Nelms’ claim that he had to have been aware of the outstanding warrant for his arrest, we find the circumstances of this case do not require such knowledge. It is maintained with considerable credibility that the motive for the senseless slaying of Conroy O’Brien was the defendants’ fear they would be identified and returned to Oklahoma or Missouri, as the case may be, for violation of the law. Myrick knew he was violating his parole; Nelms was undoubtedly concerned about his participation in the Missouri robbery approximately a month earlier. Whether Nelms had actual knowledge of the existence of an outstanding warrant is irrelevant. Simmons had positively identified Nelms from a photographic lineup as the man who robbed the jewelry store in Springfield, Missouri. He confirmed that initial identification while testifying in this case. Nelms raised no objections to the testimonies of Simmons and Smith regarding the robbery. This uncontroverted testimony and identification, if believed by a jury, is strong evidence that Nelms committed the robbery. Nelms’ knowledge of his participation in the crime far outweighed his necessity of knowing of the existence of a warrant. He could not risk a check by a law enforcement officer.
The trial court properly instructed the jury at the time of admission of the evidence and again in the general instructions that the evidence of the prior offense could be considered solely and exclusively to determine the motive for the killing of O’Brien. We find the trial court properly balanced the probative value of
evidence introduced under K.S.A. 60-455 against its possible prejudice to the accused and there was no error in admitting the evidence. See State v. Marquez, 222 Kan. 441, 445, 565 P.2d 245 (1977).
Defendant Myrick contends the trial court erred in overruling his motion for a directed verdict of acquittal. The rules for consideration of a motion for judgment of acquittal were recently set forth in State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980):
“A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. [Citation omitted.] When the sufficiency of evidence is questioned on appeal a similar standard is used. The appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]”
When Myrick went to the patrol car he gave the trooper a false name. He followed Nelms and O’Brien as they proceeded to the ditch' and stood idly by, within a few feet of O’Brien, while Nelms first struck and then shot the trooper. The two walked calmly back to the car where Swain waited. In their flight, Myrick disposed of O’Brien’s ticket book and later threw the trooper’s service revolver out the car window while they were being chased by Trooper Smith. A significant occurrence in the chain of events was his attempted participation in the gun battle with Trooper Smith. The evidence is uncontroverted that Myrick aimed a gun at Smith from the passenger’s side of the car and pulled the trigger a number of times. The gun either misfired or was empty; it merely “clicked.” Thereafter, Myrick and Swain ran from the scene and were later captured. The remaining evidence against Myrick is his statement to Chief Woody following his capture when he admitted one of the guns used in the gun battle was his.
Viewing this evidence in the light most favorable to the prosecution, we find a rational factfinder could have found defendant Myrick guilty beyond a reasonable doubt. The trial court properly overruled the motion for judgment of acquittal. The issue is without merit.
Defendant Myrick contends the trial court erred in restricting his cross-examination of Swain. During the cross-examination of Swain, Myrick’s attorney asked Swain to testify to the statements made by Myrick immediately following their capture. An objection was sustained on the grounds the statement was hearsay.
The statement in question is hearsay because Myrick was not available for cross-examination due to the failure to waive his Fifth Amendment privilege by taking the witness stand. State v. King, 221 Kan. 69, Syl. ¶ 1, 557 P.2d 1262 (1976).
Myrick baldly asserts the statements should be admitted pursuant to K.S.A. 60-403. That assertion appears in his brief without discussion and is apparently abandoned in favor of an argument that the statements should have been admitted pursuant to K.S.A. 60-460(d)(2) which provides:
“Contemporaneous statements and statements admissible on ground of necessity generally. A statement . . . which the judge finds was made while the declarant was under the stress of a nervous excitement caused by such perception . . . .”
The statement Myrick was trying to elicit from Swain was allegedly made an hour after his arrest and three hours after the murder, at a time when Myrick was desperately attempting to defend himself and when he had every incentive to falsify his statements. It does not meet the test of contemporaneous statements, which are “statements . . . made so closely connected with the time and place of the crime as to be a part of the res gestae.” State v. Jones, 204 Kan. 719, 729, 466 P.2d 283 (1970). See also State v. King, 221 Kan. at 73. We hold the trial court properly exercised its discretion in restricting Myrick’s cross-examination of Swain. This issue is without merit.
Myrick filed a motion for a new trial pursuant to K.S.A. 22-3501 on September 11, 1978, and within 10 days after the verdict. The motion was denied on September 19,1978. He then filed a timely notice of appeal December 1, 1978. On August 30, 1979, Myrick filed his second motion for a new trial based on newly discovered evidence. He alleges that Stanford Swain’s shoes, worn at the time of Trooper O’Brien’s murder, have now been found and are available as evidence to show that Nelms was lying when he testified his shoes and those of Swain were replicas of each other. Nelms’ defense is that the tracks next to the slain trooper were those of Swain and Myrick and he awoke to the sound of gunfire and surmised one of the men shot O’Brien. Myrick alleges if the shoes had been available to show Nelms was lying, Swain’s testimony exculpating Myrick would have been corroborated. Myrick also asserts various trial errors as a part of his second motion for a new trial: (1) ineffective counsel; (2) his appearance at trial in prison garb; (3) harassment by sheriff’s deputies; and (4) prejudice by the jury’s failure to hear Nelms’ confession from the stand. The only issue properly before this court is the matter of newly discovered evidence; the remaining issues are untimely and cannot be raised by a motion for a new trial due to the ten day limitation. K.S.A. 22-3501. Matters allegedly in violation of either the United States Constitution or the Kansas Constitution may, of course, be raised in a separate proceeding pursuant to K.S.A. 60-1507.
The rules regarding motions brought pursuant to K.S.A. 22-3501 for newly discovered evidence were recently stated in State v. Bishop, 223 Kan. 539, 543, 574 P.2d 1386 (1978):
“ ‘The rules for granting of a new trial for newly discovered evidence have often been stated. The granting of a new trial for newly discovered evidence is in the trial court’s discretion. [Citation omitted.] A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. [Citation omitted.] The credibility of the evidence offered in support of the motion is for the trial court’s consideration. [Citation omitted.] The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. [Citation omitted.] The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.’ ”
See also State v. Coe, 223 Kan. 153, 169, 574 P.2d 929 (1977); State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977); Jackson v. State, 1 Kan. App. 2d 744, 746, 573 P.2d 637 (1977), rev. denied 225 Kan. 844 (1978).
The evidence is undisputed that the shoes found were those worn by Swain at the time of Trooper O’Brien’s murder and that they were not available at trial. They therefore meet the threshold test of newly discovered evidence. The next question is whether Myrick was prejudiced by the unavailability of this evidence. Swain’s shoes are actually quite different from those belonging to Nelms. The evidence shows Nelms was lying regarding that point and discredits his testimony. Can we then say that the jury would have brought in a different verdict for Myrick had they known this? We think not. The jury had already rejected Nelms’ testimony, evidenced by the fact that they convicted him. We do not find the presence of the shoes would have so corroborated Swain’s testimony that a different result for Myriek would ensue at a retrial. The issue is without merit.
The judgment of the trial court is affirmed. | [
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WHEREAS, heretofore a proceeding was conducted by the Kansas Board for Discipline of Attorneys to inquire into the complaint of alleged professional misconduct of Dann L. Goode; and
WHEREAS, following a full hearing as to such complaint, the Board of Discipline found that Dann L. Goode, formerly of Eureka, Kansas, while serving as special administrator of the Estate of Gertie E. Brooks, deceased, obtained an order in 1977 from the judge handling probate matters authorizing the payment of “the bills, debts, fees and expenses of administration”; at the time of obtaining such order no petition for authority to make such payments was on file and no petition was presented to the court; subsequently a petition was filed although it did not specify the amount or nature of the fees to be paid; the court was not advised or consulted as to the amount or nature of the proposed “fees” to be paid; the respondent withdrew from the funds of the estate the sum of $2,500 and departed for Arizona; shortly thereafter the order allowing fees was set aside by the court and respondent was ordered to return the $2,500; the respondent had actual knowledge of the latter order, has failed to return the $2,500 to the estate and acknowledges he has spent the same, all contrary to DR 1-102(A)(5)(6) and DR 7-101(A)(2), 225 Kan. xciii and civ; and
WHEREAS, the Board of Discipline made a written report thereof which has been filed with this court wherein findings of fact and certain conclusions were made and a recommendation made to this court that the respondent, Dann L. Goode, be disciplined by public censure; and
WHEREAS, such recommendation is advisory only and not binding upon the court; and
WHEREAS, respondent was duly notified of the findings and conclusions of the Board of Discipline and filed his answer and defenses thereto by and through his counsel of record, John E. Wilkinson; and
WHEREAS, on the 9th day of May, 1980, the matter came on for hearing before the Court, the State of Kansas appearing by Roger Walter, disciplinary counsel, and respondent waiving argument by his counsel, and the Court, after consideration of the report and being fully advised in the premises, finds that the respondent Dann L. Goode should be disciplined by the imposition of indefinite suspension.
IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that Dann L. Goode be, and he is hereby disciplined by indefinite suspension, effective immediately, from the practice of law and until the further order of the Court and that he pay the costs of the proceeding.
IT IS FURTHER ORDERED THAT this Order of Suspension be published in the official Kansas Reports.
BY ORDER OF THE COURT, dated this 28th day of May, 1980. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal in a workmen’s compensation case by the employer, Erman Corporation, Inc., and its insurance carrier, Continental National American Insurance Group (appellants), from a district court decision apportioning an award of 100% permanent partial disability, 75% to the appellant employer and 25% to the Kansas Workmen’s Compensation Fund (the Fund). The Court of Appeals reversed the district court and ordered the case remanded for further proceedings. Razo v. Erman Corp., 4 Kan. App. 2d 473, 608 P.2d 1025 (1980). We granted review on a petition filed by the Fund.
The award to the original claimant, Alfredo Alejandre Razo, is not disputed and the only issue on appeal is the allocation between the appellants and the Fund of the responsibility for payment of the award. In 1970, Mr. Razo, while employed at the Erman Corporation as a burner, sustained an injury to his left knee and back. He underwent surgery on the knee and returned to his original job as a burner approximately three months thereafter. The duties of a burner require heavy manual labor, including the repetitious lifting of objects weighing from 100 to 150 pounds. Mr. Razo received temporary total disability payments while he was off work in 1970 but no permanent disability award. Mr. Razo continued his employment with Erman Corporation and on October 28, 1975, while lifting one of the heavy objects, suffered an injury to his back. In the fall of 1976 he was able to return to work at Erman Corporation as a security guard at a desk job requiring no manual exertion. There is some indication from the record that the position was created for Mr. Razo so he could resume some limited degree of gainful employment.
K.S.A. 1975 Supp. 44-567(a)(2) provided:
“(a) An employer operating within the provisions of the workmen’s compensation act who knowingly employs or knowingly retains in his employment a handicapped employee, shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
(2) Subject to the provisions of the workmen’s compensation act, whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director finds that the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the director shall determine in a manner which is equitable and reasonable and based upon medical evidence the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workmen’s compensation fund.”
The workmen’s compensation examiner entered an award for Mr. Razo of permanent total disability and apportioned the responsibility for payment 75% to appellants and 25% to the Fund. The director modified the examiner’s award to 100% permanent partial disability based upon K.S.A. 1975 Supp. 44-510c(a)(2), and affirmed the apportionment of the award as found by the examiner. Upon review, the district court affirmed and adopted the findings and orders of the director. Erman Corporation and its insurance carrier have appealed the apportionment determination. The Court of Appeals, after making its own interpretation of the medical testimony, found the apportionment which must be “based upon medical evidence,” as required by the statute, “to be erroneous for the reason that it is not within the ranges established by the doctors’ testimony.” 4 Kan. App. 2d at 476. The decision of the trial court was reversed and the case ordered remanded for further proceedings. Upon review we disagree with the Court of Appeals and affirm the trial court’s decision.
The medical evidence disclosed by the record consisted of the depositions of Harry B. Overesch, M.D., Edward J. Prostic, M.D., and Alexander Lichtor, M.D. All were orthopedic surgeons. None was the treating physician and their contact with Mr. Razo was solely for the purpose of examination. Mr. Razo’s treating physicians for both injuries were C. L. Francisco, M.D., orthopedic physician, and W. David Francisco, M.D., an orthopedic surgeon. Mr. Razo was also seen by Rae Jacobs, M.D., an orthopedic physician at the University of Kansas Medical Center, in consultation with the Francisco brothers following the second injury. There is nothing in the record to indicate why the testimony of these doctors was not sought.
This court and the Court of Appeals have dealt with the issue of whether the apportionment of a workmen’s compensation award is supported by the evidence in several cases. In Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 44-45, 588 P.2d 482 (1979), the Court of Appeals set out the elements of the statute as follows:
“(1) [T]he apportionment determination is to be made in an equitable and reasonable manner; (2) the apportionment determination is to be based on medical evidence; (3) the determination to be made is the amount of resulting disability and proportion of the cost of the award attributable to the preexisting physical impairment.”
It is the well-settled rule in this jurisdiction that when an appellate court examines a record on appeal to determine whether there is substantial competent evidence to support the district court’s findings, the record must be reviewed in the light most favorable to the party prevailing below. Blevins v. Buildex, Inc., 219 Kan. 485, 548 P.2d 765 (1976). In Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975), this court stated:
“While testimony such as that disclosed in this record can reasonably be the subject of opposite interpretations and even support opposing conclusions, the test is whether the record contains any substantial competent evidence which on any theory of credence justifies the trial court’s findings. It is not the function of this court to judge the credibility of witnesses or to determine what weight should be given their testimony. (Stanley v. A & A Iron Works, supra, [211 Kan. 510, 506 P.2d 1120].)” p. 196.
As is disclosed by the opinion of the Court of Appeals, the medical testimony of the three doctors is subject to varying interpretations. However, there are certain things that all three doctors did agree upon, including (1) Mr. Razo suffered some permanent disability from the 1970 injury; (2) Mr. Razo suffered a disabling injury in 1975 from the heavy lifting required by his job, and (3) the resulting disability following the 1975 injury was contributed to by the disability resulting from the 1970 injury.
Dr. Lichtor and Dr. Prostic both agreed that Razo was totally disabled from performing manual or physical labor of the type he had been doing prior to the 1975 injury. The Court of Appeals appears to discount the testimony of Dr. Lichtor because of his inability “to express an apportionment opinion with medical certainty.” 4 Kan. App. 2d at 475. The testimony of Dr. Lichtor, which appears to be the basis of the Court of Appeals conclusion, came in answer to a question referring to pain which might be attributable to the first injury arid was not a response to any question asking the doctor to apportion on a percentage basis the degree of the disability attributable to each injury. The specific question and answer read:
“Q. [by Ms. Fabian]. There is descriptions, both in the history and complaint, physical examination, as to pain in the knee, in the chest, left chest, neck, left upper extremity, all of which I presume relate to the old condition?
“A. [by Dr. Lichtor], I wouldn’t be able to say with certainty, having not seen him before. I don’t think it [the pain in the knee, etc.] is, in this particular case, because I think the second injury was really overwhelming to him. I have no history of the first accident causing him pain in the chest or upper extremity. Therefore, I really couldn’t say with certainty, reasonable medical certainty.” (Emphasis added.)
While Dr. Lichtor was never asked, and did not attempt, to apportion the present disability between the two injuries on a percentage basis, he recognized the fact that Mr. Razo had worked nearly five years in his job as a burner between the time of the first and the second injury; that the second injury was the cause of his present inability to do manual labor and the doctor was of the opinion that the second injury was the overwhelming or primary cause of disability. We do not agree with the Court of Appeals determination that Dr. Lichtor’s “nonspecific references to overwhelming or primary attribution of claimant’s second injury disability to the second accident cannot be medical evidence of the quality required by K.S.A. 1975 Supp. 44-567(o)(2).” 4 Kan. App. 2d at 475. We know of no rule of law which holds that unless the degree of disability is expressed in a percentage fash ion, the doctor’s findings and opinion do not qualify as medical evidence under the statute.
Dr. Prostic, while obviously confused when various counsel attempted to elicit specific percentages of disability attributable to each injury, was definitely of the opinion that the greater amount of the disability was due to the second injury. In his testimony, he stated:
“I think that a man who felt capable of lifting an object weighing over a hundred pounds, and apparently was able to do it on a repetitive basis, did not have a great amount of disability from his spine. And that now he is no longer able to do that and now he does have a great amount of disability from his spine. So, I would say that the preponderant damage was done through the 1975 accident, on at least a functional basis.” (Emphasis added.)
Again, when asked his opinion of the cause of the disability of Mr. Razo, Dr. Prostic answered:
“My opinion is that the difficulty with the man’s back and neck and left arm were from the accident that he described in 1975.”
The director in commenting upon Dr. Prostic’s testimony and the confusing percentages stated:
“The doctor’s remarks with regard to apportionment of 80% to the 1975 injury and 20% to the pre-existing condition were directed at his comments regarding the 25% back disability, however, his later statement that the greatest amount of the damage was caused by the 1975 accident seems to bear out this relationship. The doctor felt that anyone who was able to work on a continuing basis lifting over 100 pounds apparently did not have a great amount of disability in the spine and therefore the 1975 injury must surely have contributed the greatest amount of the injury.”
Both doctors agreed Mr. Razo was totally disabled from performing manual or physical labor and that the “overwhelming” or “preponderant” extent of the disability was caused by the second injury.
Dr. Overesch examined Mr. Razo on two occasions and was of the opinion he had 5 to 10 percent permanent partial disability of the body as a whole. He was further of the opinion that 2Yz percent of the 5 to 10 percent disability was caused by the second injury and as much as 75% of the existing disability was caused by the first injury. As stated by the director in his order:
“Dr. Harry B. Overesch testified that he felt that the claimant had sustained a five to ten percent permanent disability which the Director finds hard to reconcile with his findings of emotional and physical problems. His apportionment of disability was on the basis of one-fourth to the 1975 injury and 75% to the pre-existing condition.”
We are therefore directly faced with the problem of whether an apportionment of disability in a workmen’s compensation claim can be upheld when that apportionment is not based upon specific percentages of disability established by medical evidence. We think it can. While the statute requires the apportionment to be based upon “medical evidence” it does not preclude consideration of such evidence presented in a general or non-specific manner nor does it preclude other relevant evidence bearing upon the issue.
In the instant case Mr. Razo testified extensively about his condition and ability to do manual or physical labor following each injury. Following the first injury he was able to return to work within three months of his knee surgery; he returned to his old job as a burner; he was capable of performing his duties as a burner; he regularly lifted objects weighing between 100 and 150 pounds; he not only worked a regular 8-hour day but overtime whenever he could get it; he suffered a little pain once in a while but not like that following the second injury; he felt he handled his job “real good”; and following the second injury he was unable to do any manual labor. Such testimony from Mr. Razo, while not medical evidence, certainly supports the conclusions and opinions of Drs. Lichtor and Prostic and should not be ignored. Upon the general question of medical evidence in workmen’s compensation cases, see 3 Larson, Workmen’s Compensation Law § 79.50 et seq.
We will not attempt to analyze further, or speculate upon, the percentage figures testified to by Drs. Prostic and Overesch. Suffice it to say the minimal disability found by Dr. Overesch and the allocation thereof between the first and second injuries were expressed in definite percentages. On the other hand Dr. Prostic was definite in his conclusion and opinions as to the preponderant cause of damage, but his attempts to express his views on a percentage basis were subject to conflicting interpretations as evidenced by the orders of the examiner and director, the opinion of the Court of Appeals and the briefs and arguments of the parties. As stated by the director in his order:
“On the basis of the medical testimony herein, it appears to the Director that the apportionment of compensation by the examiner is appropriate and based on medical evidence which tends to indicate that the greatest amount of the difficulty was caused by the 1975 injury.”
Having determined that the testimony of the doctors adequately constitutes medical evidence justifying apportionment of the award, the only remaining question is whether such apportionment was done in an equitable and reasonable manner. It is obvious that the testimony of Dr. Overesch that 75% of Mr. Razo’s disability was due to the first injury is diametrically opposed to that of Drs. Lichtor and Prostic, who were of the opinion that the overwhelming, primary and preponderant cause of the disability was the second injury. As pointed out in Day and Zimmerman, Inc. v. George, 218 Kan. 189, the testimony in the instant case could support opposite conclusions; however, “the test is whether the record contains any substantial competent evidence which on any theory of credence justifies the trial court’s findings.” p. 196.
Does the medical evidence support an apportionment of 25% to the first injury and 75% to the second injury? We think so. It is conceded by all three doctors that the first injury contributed to the disability. Therefore the evidence would not support an allocation of 100% to the second injury. It requires no dictionary definition of the meaning of such words as overwhelming, principal or predominant to demonstrate that in the context used by Drs. Lichtor and Prostic far more than 50% of the disability was attributable to the second injury. Thus, it would appear that considerably more than 50% and something less than 100% of Mr. Razo’s disability was attributable to the second injury. While it certainly would have been preferable to have specific testimony on a percentage basis that was not subject to interpretation and conjecture, we cannot say, in view of the general findings and opinions of a majority of the doctors, that the allocation of 25% to the first injury and 75% to the second injury was not done in an equitable and reasonable manner.
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The opinion of the court was delivered by
Davis, J.:
This is a premises liability action. Plaintiff, while a social guest in the home of the defendants, fell down a flight of stairs, severely injuring herself. She appeals from a summary judgment entered in favor of the defendants. Summary judgment was based upon the undisputed facts and the court’s conclusion that defendants did not breach the duty to refrain from wilfully, wantonly, or recklessly injuring plaintiff.
The question presented is whether this court should change Kansas law regarding the duty owed by an occupier of land to a social guest licensee by adopting a standard of reasonable care under all the circumstances. Under present Kansas law, the duty owed to an entrant upon property is dependent upon the status of the entrant. A majority of this court believes that a partial change in our premises liability law is warranted as more reflective of modern social mores and as a more reasonable method of fault determination in our society.
Before addressing plaintiff’s question, we must deal with defendants’ contention that the issue of change in Kansas law was not properly preserved because it was not presented to the trial court. There is no dispute that the issue was raised before the trial court during oral argument, but the parties disagree about whether the question was sufficiently raised so as to preserve it for appeal. See, e.g., Schmeck v. City of Shawnee, 232 Kan. 11, 35, 651 P.2d 585 (1982). In Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 822 P.2d 617 (1991), we declined to consider an appellant’s claim that res ipsa loquitur supported her negligence claim when she raised it only at oral argument on appellee’s motion to dismiss. Res ipsa loquitur was not included as a theory in the pretrial order and no instructions were requested in Enloto. 249 Kan. at 737-38. Similarly, in this case the plaintiff raised her claim only upon oral argument to the trial court. She did not allege her position in her petition, nor did she argue it in her written reply to defendants’ motion for summary judgment.
However, this case differs from Enloto in that the plaintiff in this case seeks a determination that present Kansas law should be changed. This is clear from the argument plaintiff presented in opposition to defendants’ motion for summary judgment:
“MR. LITTRELL [Plaintiff’s counsel]: There are a number of policy issues that are issues that we cannot address in the District Court level. But in times past the doctrines of contributory negligence have been overturned by the court, the guest statutes have been repealed by the legislature. We think that we’ve got an equally unfair situation that exists here in premises liability laws as they exist in the State of Kansas and that it’s time that the court — higher court needs to consider changing and adopting the Restatement of Torts, which is a much more realistic view of the way the world works and especially insurance law, and what one guards against and who is able to pay the best. . . .
“MR. PIGG [Defendant’s counsel]: . . . Plaintiff also argues that the law — premises liability law of Kansas should be changed. That’s been argued several times in the not too distant past and has always been rejected. There’s always been some dissent. Justice Prager [is] gone, he was generally the strongest dissent proponent of eliminating traditional premises liability laws, and the probability that that law will continue as it presently is is strong. . . .
“THE COURT: Well, even if there was a home tour, there was no activity that involved the defendant Mrs. Hansen. The plaintiff was the one that was involved in the home tour and her injury was not caused by an activity brought about by defendant Mrs. Hansen. Mrs. Jones’ testimony on page 20 of her deposition says ‘So Mrs. Plansen said there were paintings in the other room? Yes. What did you do then? I said “May I look at them?” and she said yes.’ That doesn’t sound like an invitation to me, but rather a response to a request to take this home tour. ... It may be ordinary negligence, it may not be. It’s certainly unfortunate, but the discovery record in this case in no way suggests total indifference to the consequences and reckless disregard for the rights of others or a realization of the imminence of danger. You’ll have an opportunity to argue the policy decisions to the higher court, Mr. Littrell.”
Typically, a party may not raise an issue on appeal that was not presented to the trial court. We have, however, recognized an exception when the issue raised is a question of law that may be decided on established facts. See Board of Sedgwick County Comm’rs v. Kiser Living Trust, 250 Kan. 84, Syl. ¶ 8, 825 P.2d 130 (1992). The issue argued before the trial court in this case fits within that exception because it is a question of law that may be decided on established facts. Moreover, the plaintiff did argue this issue before the trial court, but that court was duty bound to follow existing Kansas law. The defendants were given a full and fair opportunity to brief and argue the issue before this court. We conclude that the issue was considered by the trial court sufficiently to preserve the issue for appeal.
The facts in this case are not in dispute. Plaintiff was invited to play bridge in the defendants’ home. When plaintiff had the dummy hand, she began looking at defendants’ art work. Mrs. Hansen told her that there were more paintings in another room. That room was adjacent to the one in which bridge was being played, and it was dimly lit. Plaintiff testified she had to be within a foot of the paintings to see them. She did not ask the defendants where the light switch was located. There were two table lamps, one floor lamp, and eight ceiling floodlights available in the room. Only the floor lamp was lit. It was the first time plaintiff had been in the defendants’ home. As plaintiff walked sideways around the room looking at the paintings, she fell down a flight of stairs and was severely injured.
The stairwell was blocked off on two sides with a 33-inch-high bookcase which defendants placed there to prevent people from just walking into the stairwell. There were three paintings hung on the wall above the stairwell. The paintings had hung at that location since 1977, and no one other than the plaintiff has been injured on the stairway.
KANSAS LAW
Under Kansas law, the common-law classifications of trespassers, licensees, and invitees are used to determine the duty owed by an occupier of land to the entrants on the land. The duty owed is dependent upon the status of the entrant. This classification system has deep roots in Anglo-American jurisprudence as well as in Kansas law. In Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 (1978), this court summarized the duty of care owed to the classes of injured parties coming upon property:
“Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Rly. Co., [219 Kan. 661, 549 P.2d 561 (1976)]. See also PIK 2d [Civil] 12.20 and 12.21.)
“A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he [or she] is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him [or her]. (Graham, v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750 [1964]; Weil v. Smith, 205 Kan. 339, 469 P.2d 428 [1970]. See also PIK 2d [Civil] 12.10 and 12.11.)
"Under the law in this jurisdiction a social guest has the status of a licensee and his [or her] host owes him [or her] only the duty to refrain from wilfully, intentionally, or recklessly injuring him [or her]. (Ralls o. Caliendo, 198 Kan. 84, Syl. ¶ 1, 422 P.2d 862 [1967]; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945 [1970].)
“An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee’s safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. (Weil v. Smith [205 Kan. 339], Syl. ¶ 3; Graham v. Loper Electric Co., [192 Kan. at 563], See also PIK 2d [Civil] 12.01 and 12.02.)”
Plaintiff was a social guest in defendants’ home. Based on the law existing at the- time of plaintiff’s injury, defendants owed plaintiff only a duty to refrain from wilfully, intentionally, wantonly, or recklessly injuring her. Under existing Kansas law, the trial court properly granted defendants’ motion for summary judgment based upon its finding that the “discovery record ... in no way suggests total indifference to the consequences and reckless disregard for the rights of others.”
Despite several invitations since Gerchberg, the majority of this court has elected to maintain the common-law classification of tort plaintiffs as trespassers, licensees, and invitees. Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986); Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978). This case is the first time in seven years that we have been asked to reevaluate whether our premises liability law should continue to base the occupier’s duty of care upon the status of the entrant. Advocates for change argue that a standard of reasonable care under all the circumstances is a more realistic standard in modern society; one that is easily understood and applied because it is used in almost all other tort actions. They argue that a reason may have existed in feudal times and even beyond for the protection of vested property interests, but that modern times demand a recognition that requiring all to exercise reasonable care for the safety of others is the more humane approach. Finally, they argue that the present common-law classifications are rigid and mechanical in application and overly protective of property interests at the expense of human safety.
However, both before and after our decision in Bowers v. Ottenad, several jurisdictions elected to modify the duty owed by occupiers of land to persons coming on the property. A majority of jurisdictions still retain the common-law classifications and duties arising from those classifications. Some of those that have changed abolished altogether the classifications and adopted negligence standards calling for the occupier of the lands to exercise reasonable care for the safety of persons coming on their property. Other jurisdictions have elected to retain the classification of trespasser with concomitant duties, but have abandoned the distinction between invitees and licensees. These jurisdictions require an occupier of land to exercise reasonable care under the circumstances for any person entering upon the premises with the express or implied permission of the occupier of the property. For a comprehensive discussion and analysis of those jurisdictions retaining, modifying, and abandoning the common-law classifications, see Annot., 22 A.L.R.4th 295.
Those jurisdictions that reject altogether the common-law status classifications and require an occupier of land to exercise reasonable care under all the circumstances accept the principle that the foreseeability of the injury rather than the injured party’s status is the controlling factor in determining liability. See 22 A.L.R.4th at 303-07. Those jurisdictions that have adopted an intermediate position by abolishing the common-law distinctions between the duties owed to licensees and invitees, while retaining the common-law rules regarding trespassers, generally agree that the foreseeability of the injury ought to be the foundation of liability. See 22 A.L.R.4th at 307-10. We believe that this intermediate position is sound.
The majority of jurisdictions considering this issue have retained the common-law classifications, reasoning that the interest in judicial certainty advanced by the maintenance of well-established and predictable allocations of liability under the common law is best for society. See 22 A.L.R.4th at 310-14. Some courts rejecting change have reasoned that replacement of a stable and established system of loss allocation results in the establishment of a system devoid of standards for liability. It also has been suggested that the harshness of the common-law rules has been ameliorated by the judicial grafting of exceptions and that the creation of subclassifications ameliorated the distinctions between active and passive negligence.
We note that the common-law status distinctions between licensees and invitees have not been adopted by the United States Supreme Court in admiralty law. Kermarec v. Compagnie Generale, 358 U.S. 625, 636, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959). Moreover, England, by passage of the Occupiers’ Liability Act of 1957, 5 & 6 Eliz. II, c. 31, abrogated the distinction between licensees and invitees, imposing upon occupiers of land a common duty of care towards all visitors except trespassers.
Fifteen years ago, in Gerchberg v. Loney, 223 Kan. 446, this court refused to adopt the standard of reasonable care under all the circumstances for licensees. Not unlike other jurisdictions that have rejected change, we said that such a standard
“would have to be applied by the jury to the specific facts of each case. Can a lay jury be expected to consider the proper relative effect of natural and artificial conditions on the premises which are or may be dangerous, the degree of danger inherent in such conditions, the extent of the burden which should be placed on the possessor of the premises to alleviate the danger, the nature, use, and location of the condition or force involved, the foreseeability of the presence of tire plaintiff on the premises, the obviousness of such dangerous condition or the plaintiff’s actual knowledge of the condition or force which resulted in injury? It would appear these considerations should be imparted to the jury if it is to be placed in a position to decide whether reasonable care was exercised by the possessor of the premises. Otherwise the jury will have a free hand to impose or withhold liability.” 223 Kan. at 450.
Based upon the same reasoning, we again rejected change in Britt v. Allen County Community Jr. College, 230 Kan. 502. Quoting at length from Hawkins, Premises Liability After Repudiation of the Status Categories: Allocation of Judge and Jury Functions, Utah L. Rev. 15 (1981), the majority in Britt reasoned that it seemed apparent from 80 cases surveyed in that article that courts would still find it necessary to fix the limits of premises liability even after they had repudiated the status categories of entrants on land. 230 Kan. at 507.
However, even the majority in Britt notes that Hawkins concludes: “ In a majority of the cases surveyed the outcome would probably be the same as if the status rules had been applied.’ Utah L. Rev. at 56.” 230 Kan. at 507. The majority opinion further quotes Professor Hawldns in his conclusions resulting from the survey of 80 cases involving a change from those jurisdictions abolishing classification:
“ T. The preceding discussion reveals that there has not been wholesale abandonment of premises liability cases to jury caprice. Of eighty cases surveyed in jurisdictions that have abolished the status categories, thirty were withheld from juries by directed verdicts or other summary disposition.
“ ‘2. The techniques of case-by-case determination most often used to withhold cases from juries after repudiation of the status categories were: (1) that the defendant owes the plaintiff no duty of reasonable care or that the duty does not extend to the particular risk; and (2) that there was insufficient evidence of negligence. These techniques are well developed in general negligence practice. Occasional resort to the murky dialectic of “proximate cause” is regrettable but no more of a problem in premises liability cases than it is in negligence cases generally.
“ ‘3. Those cases that have been withheld from juries after repudiation of the status categories cannot be explained simply by reference to the type of entrant, the type of landowner or .possessor or the type of premises on which the injury occurred. If there is a feature that tends to explain these cases, it would have to be stated very generally in terms of the risk situation. Compared with the fifty cases that reached juries, the thirty cases withheld from them involved proportionately higher frequencies of third-party hazards, natural condition hazards, common and obvious conditions, plaintiff’s risky conduct, or bizarre events and proportionately lower frequencies of hidden or latent conditions, and hazards created immediately by defendant’s active operations. Since these differences are only relative, it is probably necessary to take into account the court’s assessment of further considerations such as the magnitude of the risk, the gravity of harm, the burden of prevention and the significance of the plaintiff’s contributory conduct in the particular circumstances of each case. If that is so, the disposition of the cases appears to be consistent with the handling of negligence cases generally, and the incidence of jury control is consistent with the reform logic that the nature of the entrant’s conduct should be considered in evaluating the risk situation, and not just the status of the entrant.’ Utah L. Rev. at 53-56.” Britt, 230 Kan. at 506-07.
Professor Hawkins’ conclusion is that our judicial system uses those techniques that are well developed in general negligence practice in handling and applying a standard of “reasonable care under the circumstances.” As noted by Justice Prager:
“The point of Professor Hawkins is not that there is no justification for the abolition of the status classifications. His point is that the abolition of the classifications has not resulted in uncontrolled findings of liability on the part of property owners, because, in applying the reasonable man standard, the court has applied the usual protections and safeguards customarily applied in other types of negligence cases.” Britt, 230 Kan. at 511 (Prager, J., dissenting).
In Britt, Justice Prager highlights one of the main criticisms of basing liability on the status of the entrant rather than upon the assessment of the duty of due care of the occupier of the premises. He states:
“The manifest injustice of the distinction between invitees and licensees is well illustrated by the present case. If the plaintiff, Ella May Britt, had been on the premises attending a lecture sponsored by the junior college on another evening and had been injured as the result of the negligence of its employee, she could have recovered for those personal injuries. Her trouble is that she went to the auditorium on the wrong night. Although she may have been injured in the same way by the negligence of an employee of the junior college, the majority have held that she is completely without remedy because she did not have the status of an invitee, since the program was not being sponsored by the junior college. The inherent injustice of the invitee-licensee differentiation becomes quite obvious in this case.” Britt, 230 Kan. at 511 (Prager, J., dissenting).
This criticism is similar to the following quote from Rowland v. Christian, 69 Cal. 2d 108, 118, 70 Cal. Rptr. 97, 443 P.2d 561 (1968), the first case abolishing common-law classifications:
“A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.” (Emphasis added.)
Our most recent case dealing with this question highlights another criticism leveled by courts rejecting or partially rejecting the common-law status classification. Adoption of a true negligence standard eliminates the complex, confusing, and unpredictable state of law created by courts’ attempts to avoid the harshness resulting from rigid application of the traditional rule by increasing the number of classifications. See 22 A.L.R.4th at 299. In Bowers v. Ottenad, 240 Kan. 208, plaintiff, a social guest at a dinner party hosted by one of the defendants, was severely burned when the host prepared a flaming Irish coffee. A bottle of alcohol used in preparation for the Irish coffee ignited and fire burst forth in the form of a “fireball.” Justice Holmes wrote the majority opinion and traced the development of the doctrine of “active” negligence in the Kansas law of premises liability. He noted in this case that “appellant’s injuries were not the result of any defective or dangerous property conditions existing at the Ottenad residence. Rather, the injuries were the result of the activity of appellant and appellees mixing the flaming drinks.” 240 Kan. at 213. In arriving at the conclusion that the “active” negligence doctrine was the law of Kansas based upon a historical analysis, Justice Holmes noted:
“An active negligence exception to the premises liability doctrine, as more fully explained in the opinion, is recognized as the law in Kansas and when a licensee, whose presence is known or should be known, is injured or damaged by activity conducted upon the property by the occupier of the property, the duty owed to such person is one of reasonable care under the circumstances. When the injury or damage results from the condition of the premises as opposed to the activity thereon, the duty of the occupier to the licensee is only to refrain from willfully or wantonly injuring the licensee.” 240 Kan. 208, Syl. ¶ 4.
Justice Holmes concludes:
“We recognize that there will be instances when it will be difficult to determine whether the alleged negligence falls within the area of an activity carried on by the occupier of the property or is due to the condition of the premises. However, the fact that some cases may he difficult for determination is no justification for refusing to recognize-a proper nde of law. Our prior eases, including Britt v. Allen County Community Jr. College, 230 Kan. 502; and Gerchberg v. Loney, 223 Kan. 446, are overruled to the extent that they are inconsistent with the views expressed in this opinion.” (Emphasis added.) 240 Kan. 222-23.
The same may now be said in this case: “[T]he fact that some cases may be difficult for determination is no justification for refusing to recognize a proper rule of law.” 240 Kan. at 222-23. That rule does away with the artificial classifications and distinctions arising therefrom between licensee and invitees, classifications that we have recognized no longer fit contemporary society. Adoption of this rule places the focus where it should be rather than upon allowing the duty in a particular case to be determined by the status of the person who enters upon property. We invest judges and juries with the ultimate authority to resolve disputes in our society. We trust the system, and over the years that system has proven admirable in resolving complex problems in tort cases entrusted to its care. Both judges and juries are familiar with and able to apply ordináry negligence standards. Studies suggest that abolition of the distinctions between the duty owed to an invitee and that owed to a licensee has not altered greatly the results reached, has not left the juries without direction or standards by which to judge the action of the occupier of lands, and has resulted in outcomes that would probably be the same as if the status rules had been applied. We believe that the occupier of land owes a duty of reasonable care under the circumstances to all entrants on the property who are present with the occupiers consent.
We hold that in Kansas, the duty owed by an occupier of land to licensees shall no longer be dependent upon the status of the entrant on the land; the common-law classification and duty arising from the classification of licensees shall no longer be applied. The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that arp to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.
At the same time, the effect of the common-law classification of a tort plaintiff as a trespasser is to remain unchanged. A trespasser is defined under Kansas law as one who enters the premises of another without any right, lawful authority, or an express or implied invitation of license. A possessor of the premises upon which a trespasser intrudes owes a trespasser a duty to refrain from wilfully, wantonly, or recklessly injuring him or her. See PIK Civ. 2d 12.20 and 12.21 and comments therein. We have determined that the status of a trespasser retains significance in our contemporary society.
In applying the duty of reasonable care under all the circumstances to licensees as well as invitees, we are mindful that Kansas has recognized that there are limits to “reasonable care.” For example, in Agnew v. Dillons, Inc., 16 Kan. App. 2d 298, 300, 822 P.2d 1049 (1991), the Court of Appeals determined that a business proprietor had a duty to use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. However, the Court of Appeals noted that a proprietor or operator of a trade or business is not an absolute insurer of the safety of the customers. Agnew determined “that a business proprietor, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter.” 16 Kan. App. 2d at 304. Agnew concluded that “[a] requirement that a business proprietor continually expend effort, during a winter storm, to remove frozen precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden beyond that of ordinary care.” 16 Kan. App. 2d 298, Syl. ¶ 3.
We believe that the Agnew rationale and those cases cited in support of the Agnew rationale are supported by sound public policy. Because we have adopted a standard of reasonable care under all circumstances with respect to all persons who are on property with the occupier’s consent, we believe that the Agnew case and reasoning therein applies with equal force and will help define the duty of “reasonable care” in future premises liability cases involving licensees.
Perhaps the rationale of our decision may be best expressed through the words of Justice Cardozo:
“I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. . . . There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. ... If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.” Cardozo, The Nature of the Judicial Process, pp. 150-52 (1921).
In the words of Justice Prager:
“A cardinal principle of tort law today is that all persons should be required to use ordinary care under the circumstances to prevent others from being injured as the result of their conduct. Although it is true that some exceptions have been made to this general principle, no such exception should be made unless clearly supported by some sound public policy.” Gerchberg v. Loney, 223 Kan. at 456 (Prager, J., dissenting).
Having adopted a new rule by adopting a standard of reasonable care under all the circumstances for licensees and invitees in premises liability cases, we conclude that this new rule is to be applied prospectively from the date of this decision. Prior to this decision, all citizens were on notice of premises liability law in the State of Kansas. We deem it, therefore, fair to apply this new rule prospectively, with the exception of the parties to this action.
Upon remand, it remains an open question whether the facts of this particular case would warrant a summary judgment under the new rule adopted by this court. Defendants note in their brief before the trial court: “It is questionable whether plaintiff’s evidence is sufficient to present a question of negligence of the defendants.” The trial court in its decision noted: “It may be ordinary negligence, it may not be.” Because of the law in existence at the time this matter was argued on motion for summary judgment, the only question was whether the defendants’ actions were wanton. The parties did not present or argue whether the defendants’ actions under all the circumstances were negligent. It remains for determination by the trial court whether, under the new rule adopted by this court, the defendants are entitled to summary judgment.
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The opinion of the court was delivered by
Allegrucci, J.:
Morton Thiokol, Inc., (Morton Thiokol) appeals from an order of the Board of Tax Appeals (BOTA). The Kansas Department of Revenue (Revenue) assessed additional corporate income tax of $82,607 plus interest of $49,732 against Morton Thiokol for fiscal years ending June 30, 1981, through June 30, 1983. The additional tax resulted principally from (1) use of the domestic combination method of apportioning income and expenses for the multijurisdictional corporation and (2) the treatment of foreign dividends as apportionable business income. The assessment was upheld by the Kansas Director of Taxation (Di rector), and BOTA affirmed the Director’s order. The case was transferred from the Court of Appeals on this court’s motion, pursuant to K.S.A. 20-3018(c).
Morton Thiokol is a Delaware corporation, and it stipulated that it is unitary with all its domestic and foreign subsidiary corporations. The Multistate Tax Commission Corporate Income Tax Audit Procedure Guideline Manual, February 1985, defines a unitary business as follows:
“A business is considered to be a unitary business, whether it conducts its operations through one corporation or through several corporations, if and to the extent that its various components ‘contribute to or are dependent upon’ each other. [Citation omitted.] An indicator of such interrelationships is a ‘flow of value’ between the components.”
In considering a multistate corporation, this court defined a unitary business as follows:
“A multi-state business is a unitaiy business for income tax purposes when the operations conducted in one state benefit and are benefited by the operations conducted in another state or states. If its various parts are interdependent and of mutual benefit so as to form one integral business rather than several business entities, it is unitaiy.” Crawford Manufacturing Co. v. State Comm., of Revenue and Taxation, 180 Kan. 352, Syl. ¶ 1, 304 P.2d 504 (1956).
Morton Thiokol has subsidiaries incorporated both in the United States (domestic) and elsewhere (foreign). Morton Thiok-ol’s multiple corporate entities, both domestic and foreign, are parts of a single unitary enterprise. Thus, Morton Thiokol is a multijurisdictional and unitary corporation. Because it does business in Kansas, it is subject to Kansas corporate income tax.
Kansas treats the entire business of a unitary business together, and the various corporate parts of the unitary business file a combined tax return in the state. Kansas taxes an apportioned share of the entire business of a multijurisdictional unitaiy enterprise. That apportioned share in theory bears some relation to the value earned in the state. In other words, apportionment assigns to Kansas its share of the corporation’s tax base. The formulary apportionment, of necessity, is abstract and somewhat arbitrary. There is no contention in this case, however, that some method of combined filing and apportionment should not be used. Revenue used the domestic combination method to calculate Mor ton Thiokol’s Kansas tax liability, and the corporation advocates use of the worldwide combination method. Therein lies the root of the problem in this case.
In its order, BOTA quoted the following explanation of the two methods:
“ ‘Under [the domestic combination method], a portion of the combined taxable income of those corporations which are incorporated in the U.S. and which are part of a unitary business enterprise doing business in Kansas is included even though in some instances they actually operate in foreign countries. Dividends expatriated to domestic corporations from their unitary foreign organized subsidiaries are also required to be included in the Kansas tax base.
‘Once the tax base has been determined, a three-factor formula based on property, sales, and payroll is utilized to apportion to the state that business income which is attributable to the business activity of the business enterprise within the state. However, before the income generated by a mul-tijurisdictional business enterprise may be taxed under the apportionment provisions, the business is required to be unitary.
‘A unitary business principle operating through a worldwide combination policy differs from the Kansas domestic combination policy. Under the worldwide combination policy, the total income of both the domestic companies and foreign unitary subsidiaries is apportioned using worldwide payroll, sales, and property factors in the denominator of the apportionment ratio. Under the domestic combination policy, only the federal taxable income of the domestic companies which includes only the dividend income from the unitary foreign subsidiaries is apportioned using the factors of the domestic companies within the apportionment formula.’ (St. Ex. I, p. Inc-9 to Inc-11, Final Report and Recommendations, Kansas Tax Review Commission, June 1985).”
Kansas taxable income (Kansas tax base) is determined by reference to federal taxable income. K.S.A. 79-32,138(a).
In the case of Morton Thiokol, it appears that the income figure remains the same regardless of method, but the figure which is divided into it is greater with the worldwide combination method than with the domestic combination method; i. e., the numerator of the ratio remains the same but the denominator increases with the worldwide combination method. Thus, the resulting apportionment is less when the worldwide combination method is used than when the domestic combination method is used. The bottom line is that the taxes assessed are greater when the latter method is used.
The issues raised by Morton Thiokol on appeal are presented in the following way: Morton Thiokol argues that it has been denied due process by Revenue’s changing tax rules and policies without issuing regulations. It argues that Revenue’s treatment of foreign dividends is improper under Kraft Foods v. Iowa Dept. of Rev., 505 U.S. 71, 120 L. Ed. 2d 59, 112 S. Ct. 2365 (1992). It argues that the domestic combination method is contrary to K.S.A. 79-32,141 and K.A.R. 92-12-77. And it argues that it has been denied equal protection by Revenue’s differential treatment of similarly situated taxpayers.
Revenue responds as follows: Morton Thiokol must use the domestic combination method. Morton Thiokol must apportion its foreign dividend income; i.e., the foreign dividend income must be included in Morton Thiokol’s taxable income. Morton Thiokol’s due process, fundamental fairness, or estoppel claim does not preclude the use of the domestic combination method or apportionment of foreign dividends.
Before we consider the merits of Morton Thiokol’s argument, we need to state our scope of review. K.S.A. 74-2426(c) provides that BOTA’s order is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 77-621(a)(l) provides that Morton Thiokol bears the burden of proving the invalidity of the agency action. K.S.A. 77-621(c) provides that the court may grant relief only when it has made certain determinations, including that the agency erroneously interpreted or applied the law, that the agency made determinations of fact not supported by substantial evidence, that the agency engaged in an unlawful procedure or failed to follow prescribed procedure, or that the agency acted unreasonably, arbitrarily, or capriciously.
We first consider if Morton Thiokol was denied due process by Revenue’s changing tax rules and policies without issuing regulations. Morton Thiokol complains that Revenue has failed to issue regulations relating to the Uniform Division of Income for Tax Purposes Act, K.S.A. 79-3271 et seq. (UDITPA). According to Revenue,
“U.D.I.T.P.A. apportions and allocates income. U.D.I.T.P.A. does not define the income base that is to be apportioned and allocated. ‘[T]he uniform act assumes that the existing state legislation has defined the base of the tax and that the only remaining problem is the amount of the base that should be assigned to the particular taxing jurisdiction.’ ” (Emphasis added.)
Morton Thiokol argues that the absence of regulations permits Revenue to change its requirements capriciously, fail to notify taxpayers of changes, and administer tax laws on a case-by-case basis. The effect Morton Thiokol complains of is being audited three times, for tax years 1973-76, 1977-80, and 1981-83, with Revenue requiring it to compute its tax in three different ways.
In this regard, the pertinent portions of BOTA’s order state:
“The Appellant argued that the inclusion of Eaton’s [Eaton Laboratories, Inc., a subsidiary corporation of Morton Thiokol] income and the foreign dividend gross-up was a change in policy, and that fundamental fairness dictates that this Board should order the Department to issue regulations before using this method. The [Ajppellant’s argument that this is a change of policy stems from a settlement agreement reached between the Department and the Appellant for the years 1977 through 1980. As part of the agreement, the Department considered the foreign dividend gross-up issue a litigation risk and settled the issue without assessing the foreign dividend gross-up. However, the Board finds that this settlement agreement did not necessarily constitute a policy of tire Department, therefore the assessment of the foreign dividend gross-up for the years 1981 through 1983 did not reflect a change of policy. The [A]ppellant should have known that this issue could raise its head again if the [A]ppellant did not later include the foreign dividend gross-up in its income apportioned to Kansas.
“In addition, with regard to the fact that the income from Eaton was apparently not required by the Department to be included in the Appellant’s income during the previous audit years of 1977 through 1980, the Department hints that this was a mistake on their part. Consequently, the Board is left to assume that if the Department had caught it, they would have also required the inclusion of Eaton’s apportioned income for those years. However, the Board finds that the question of whether or not this was a mistake by the Department is irrelevant.”
BOTA’s order is silent on the subject of changes between requirements for the tax years 1973-76 and 1977-80, nor does Morton Thiokol mention this silence in its brief. In its petition for reconsideration of BOTA’s order, Morton Thiokol made the same assertions with regard to the tax years 1973-76 as it makes in its brief, but did not mention that the order is silent on the subject or request that BOTA make findings and draw conclusions. We can only assume that Morton Thiokol does not have a complaint about the substance of the change between 1973-76 and 1977- 80, i.e., the change from separate return filing to combined filing, but it complains merely of the fact of change. Complaining that there was change merely serves to lengthen Morton Thiokol’s list of due process transgressions, even though Morton Thiokol does not object to the result of the change. We, therefore, discount the change between tax years 1973-76 and 1977-80. Moreover, the record before us is quite sketchy on this change.
Morton Thiokol asserts that for tax years 1977-80, Revenue required it to use a domestic combination method but did not include in the tax base income from its Section 936 Puerto Rican subsidiary, Eaton, and did not include dividends from foreign subsidiaries. It asserts that for tax years 1981-83, Revenue required it to include its Section 936 subsidiary income and dividends from foreign subsidiaries.
Revenue’s generalized response seems to be that properly prepared returns for Morton Thiokol for tax years 1977-80 should have included the Eaton income and foreign dividends. With regard to the Eaton income, Revenue seems to be saying that it did not propose adjustments because it was unaware of Eaton’s existence and is still unsure whether Eaton existed for the entire period. If it had known of Eaton, the adjustment would have been proposed for all years of Eaton’s existence. With regard to foreign dividends, Revenue takes the position that it advised Morton Thiokol of the adjustment needed for proper accounting for foreign dividends and then negotiated a cash settlement of the taxpayer’s tax liability for years 1977-80. Revenue states: “Nothing in the negotiated settlement of the 1977-1980 audit was agreed to prospectively apply to the 1981-1983 tax years.” Revenue relies on the testimony of Robert J. Muszanski, the manager of domestic tax compliance with a former affiliate of Morton Thi-okol:
“Q. . . .1 simply asked was the agreement for the prior audit period by its terms agreed to apply to future periods? Was there any agreement discussing future periods?
“A. No.”
To keep this issue in perspective, it is important to bear in mind that Morton Thiokol is complaining about change without regulations being issued. The changes it complains of between tax years 1977-80 and 1981-83 are treatment of Eaton’s income and foreign dividends. The change from separate return filing to combined filing was made from tax years 1973-76 and 1977-80.
Morton Thiokol contends that its witness did not agree with Revenue’s position that audit settlements are not binding on future years. Of course, Revenue’s “non-binding” position is that its willingness to write off the foreign dividends for tax years 1977-80 does not mean that Morton Thiokol may exclude foreign dividends for subsequent tax years. What Muszahski said was that he doubted that Revenue would have approved separate return filing rather than combined filing by Morton Thiokol in 1981 because Revenue had “established [its] position on previous audits.”
Revenue asserts that “Eaton did not exist as an active corporation until 1977 or 1978.” Muszanski testified that he did not know what year Eaton was created but that he believed that 1977 or 1978 was its first year. He also testified that the legislation authorizing creation of a Section 936 corporation, such as Eaton, was the Tax Reform Act of 1976. Revenue asserts that the 1976 calendar year was the first year that Eaton, if it existed, could have computed its income under the revenue code as a Section 936 corporation. Morton Thiokol’s 1976 tax year was its fiscal year, which ended on June 30, 1976.
Revenue raises the possibility that it was not aware of Eaton’s existence at the time of the 1977-80 audit. Revenue implies that it was up to Morton Thiokol to alert Revenue to the existence of Eaton and to request a ruling on tax treatment for it. Morton Thiokol states that the dividend gross-up was at issue when it settled its liability for the 1977-80 tax years, but that Eaton income was not mentioned. •
BOTA stated in its order that with regard to Eaton income, Revenue “hints that this was a mistake” on its part. Morton Thiokol takes issue with BOTA’s statement on the ground that it is not supported by testimony. There is no rule that factual findings need to be supported by testimony or even by direct evidence, and reasonable inferences are permissible. In this instance, BOTA’s statement does not rise even to the level of a finding. It seems to be an observation as to Revenue’s theory, and BOTA says that it is immaterial because Morton Thiokol cited no controlling legal authority for the proposition that changes in the circumstances were improper. We agree.
Morton Thiokol relies principally on CBS v. Comptroller, 319 Md. 687, 575 A.2d 324 (1990). The television network challenged the state comptroller’s apportionment of advertising income to the State of Maryland for tax purposes. CBS contended that the comptroller’s use of an audience-share factor constituted a substantial deviation from the income source rule specified in an administrative regulation. CBS contended that in that circumstance and on the record before the' court, the agency was required to promulgate a new rule in order to adopt the policy change. The Court of Appeals of Maryland agreed.
The court took pains to establish that its decision in CBS was not in conflict with Consumer Protection v. Consumer Pub., 304 Md. 731, 501 A.2d 48 (1985). In Consumer Protection, faced with the issue whether an agency is required to proceed by rulemaking as opposed to adjudication, the Maryland court decided that on the record before the court, it was appropriate for the agency to proceed by adjudication. 304 Md. at 755-56. In Consumer Protection, the agency had not changed existing law or materially modified standards, 304 Md. at 756; in CBS the agency had changed a policy which was represented in a rule, 319 Md. at 697-98.
Morton Thiokol contends that CBS is “virtually on all fours with the present case.” Morton Thiokol quotes the court’s conclusion that “when a policy of general application, embodied in or represented by a rule, is changed to a different policy of general application, the change must be accomplished by rulemaking.” 319 Md. at 696.
Morton Thiokol, however, is unable to show that any one of the changes it complains of constitutes change of “policy of general application, embodied in or represented by a rule.” Its argument in this regard is that such a showing is impossible because Revenue has never promulgated pertinent rules and Revenue should not be rewarded for its failure. Morton Thiokol cites Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 472 N.E.2d 259 (1984), in which the Supreme Judicial Court of Massachusetts decided that the Commissioner of Revenue could not implement the worldwide combination method of determining a corporation’s taxable income allocated to Massachusetts without first adopting appropriate regulations. The court also concluded that the commissioner lacked statutory authority to “use the unitary business’ approach in the circumstances of this case.” 393 Mass. at 492.
Revenue argues that Polaroid is like CBS in that regulations were required because the commissioner’s use of the worldwide combination method substantially deviated from an existing rule. Revenue argues that the written rule in the Massachusetts case was embodied in the Massachusetts tax statutes and that the worldwide combination method would have been inconsistent with the statutory definition of income. Revenue quotes the following:
“A more fundamental attack on the unitary system is that the commissioner’s calculations require the inclusion of income of non-United States subsidiaries which is not includible in Federal gross income, the statutory starting point in calculating a corporation’s taxable net income. See G.L. c. 63, § 30(5)(a). Although it is not necessarily inappropriate to determine an excise by considering items that are not income in a tax sense (Commissioner of Revenue v. Massachusetts Mut. Life Ins. Co., 384 Mass. 607, 613 [1981]), a statutory pattern that determines taxable income by starting with Federal gross income casts doubt on the propriety of the adoption of a worldwide unitary approach in determining taxable net income.” 393 Mass. at 498 n.10.
Morton Thiokol cites Commissioner of Revenue v. New England Power Co., 411 Mass. 418, 582 N.E.2d 543 (1991), for the proposition that unpublished audit guidelines could not be applied to the taxpayer. The Supreme Judicial Court stated in a footnote that “the unpublished audit guidelines had not been properly adopted as policy by the department and therefore could not fairly be applied to NEP in this case.” 411 Mass. at 424 n.4. This declaration, however, appears to be unnecessary to the outcome of tire case, and it does not appear that “adopted as policy” necessarily involves promulgation of a regulation. The final sentence of the footnote states: “We express no opinion, however, as to whether the commissioner possesses the statutory authority to adopt such a regulation.” 411 Mass. at 424 n.4.
Morton Thiokol also cites J.R. Simplot Co. v. Tax Com’n, 120 Idaho 849, 820 P.2d 1206 (1991), for the proposition that change may not be effected without promulgation of regulations. Morton Thiokol states that the major import of this case is that the ground for reversing an assessment was that the commission “had issued no rules or regulations interpreting the statutes prior to issuing the assessment.” Morton Thiokol overstates the significance of the absence of regulations. The Idaho court stated that one of the four traditional rationales for judicial deference to agency expertise is missing where the agency has failed to use its expertise to formulate regulations or, in this case, instructions on the corporate tax returns. 120 Idaho at 865. The holding of the case is that “foreign source income may not be included in the preapportionment tax base of a corporation unless that income is also federal taxable income under the provisions of I.C. § 63-3022.” 120 Idaho at 866. The holding was influenced, perhaps heavily, by the absence of regulations, but the basis for the holding was interpretation of the statute, Idaho Code § 63-3022 (1989).
Revenue takes the position that none of the four cases cited by Morton Thiokol involved circumstances similar to those in the present case. We agree that the four cases are distinguishable from the present case. Revenue relies on Pioneer Container Corp. v. Beshears, 235 Kan. 745, 684 P.2d 396 (1984), in distinguishing CBS, Polaroid, New England Power, and Simplot from the present case. It states that they are “off point because the domestic combination method in Kansas is a ‘natural interpretation’ of the statutes and is ‘wholly consistent’ with them. Pioneer, 235 Kan. at 756.” Thus, according to Revenue, a formally adopted regulation is not required in Kansas for use of the domestic combination method.
In CBS, the Maryland court referred to Securities Comm’n v. Chenery Corp., 332 U.S. 194, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947), as the seminal decision in the area of rulemaking. Here is what the Maryland court said about Chenery.
“[T]he Supreme Court observed that ‘[t]he function of filling in the interstices of the [Holding Company] Act should be performed, as much as possible, through [the] quasi-legislative promulgation of rules to be applied in the future.’ [Securities Comm’n v. Chenery Corp., 332 U.S.] at 202, 67 S. Ct. at 1580, 91 L. Ed. at 2002. But the Court declined to adopt ‘any rigid requirement to that effect’ because to do so ‘would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise.’ Id. at 202, 67 S. Ct. at 1580, 91 L. Ed. at 2002. It made plain that in certain situations ‘the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency . . . .’
Id. at 203, 67 S. Ct. at 1580, 91 L. Ed. at 2002 [. . . citations omitted.] See also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S. Ct. 1757, 1771, 40 L. Ed. 2d 134, 154 (1974).” 319 Md. at 692-93.
In the present case, BOTA found that there was no change in Revenue’s treatment of foreign dividends between tax years 1977-80 and 1981-83. As a matter of fact, there was a change in that Revenue negotiated a settlement which did not include foreign dividends for years 1977-80 and then required Morton Thiokol to include foreign dividends in years 1981-83. BOTA reasoned, though, that Revenue’s relinquishing the point for purposes of settling Morton Thiokol’s tax liability for 1977-80 did not mean that Revenue’s policy for those years allowed foreign dividends to be excluded. Nor, according to BOTA, has Morton Thiokol established, as a matter of law, that Revenue is required to issue a regulation in order to change a policy — a true statement, but rather broad. We concur in the conclusion reached by BOTA that neither the use of the domestic combination method nor the treatment of the dividends from the foreign subsidiary constituted a change of policy. We find no merit in appellant’s assertion that it was denied due process in the assessment of additional corporate income tax by Revenue.
Next, Morton Thiokol challenges Revenue’s treatment of foreign dividends. In Kraft Foods v. Iowa Dept. of Rev., 505 U.S. 71, 120 L. Ed. 2d 59, 112 S. Ct. 2365 (1992), the United States Supreme Court held that Iowa’s treatment of the corporation’s dividends received from foreign subsidiaries violated the foreign commerce clause of the federal Constitution. The Iowa statute, like the federal business income tax scheme, allowed a deduction for dividends received from domestic subsidiaries but not for dividends received from foreign subsidiaries. The Iowa statute, unlike the federal scheme, did not allow a credit for taxes paid to a foreign country.
In Kraft, the Iowa Supreme Court rejected Kraft’s claim that the disparate treatment of domestic and foreign subsidiary dividends was unconstitutional, at least in part, because Kraft had not demonstrated that Iowa businesses enjoyed an advantage over foreign commerce due to tire statute. The United States Supreme Court, however, decided that the Iowa statute facially discriminated against foreign commerce. Justices Blackmun and Rehnquist dissented on the grounds that the statute did not facially discriminate and the record contained insufficient evidence of discrimination.
Morton Thiokol’s claim is that Kansas’ treatment of foreign dividends, including Section 78 “gross-up,” is improper under the reason and rule of Kraft. The Iowa and Kansas tax schemes differ, and there is no mention of Section 78 “gross-up” in Kraft. Morton Thiokol’s argument, therefore, relies heavily on analogy and extrapolation.
The foreign tax credit which made the difference between the federal and Iowa business tax schemes is available to domestic corporations under 26 U.S.C. § 901 (1988). Domestic corporations may elect either a deduction for taxes paid to foreign jurisdictions or the foreign tax credit. 12 Mertens, Law of Federal Income Taxation § 45D.03, p. 37 (1993). “[T]he credit is likely to be beneficial as it provides a dollar for dollar reduction in tax.” 12 Mertens, § 45D.03, p. 37.
Domestic corporations which elect to take the credit for taxes deemed paid include taxes deemed paid in their gross income. Domestic corporations are deemed to have paid the taxes related to the income they receive from foreign subsidiaries which are paid by the foreign subsidiaries to foreign jurisdictions. 12 Mer-tens, § 45D.01, p. 2. “When taxes are deemed paid by a domestic corporation, . . . the corporation electing the foreign tax credit is required to include in its gross income the amount of its deemed paid taxes as a dividend under Section 78.” (Emphasis added.) 12 Mertens, § 45D.14, p. 132. 26 U.S.C. § 78 (1988) states in pertinent part:
“If a domestic corporation chooses to have .the benefits of [the foreign tax credit] for any taxable year, an amount equal to the taxes deemed to be paid by such corporation . . . for such taxable year shall be treated ... as a dividend received by such domestic corporation from the foreign corporation.”
A foreign corporation, even if wholly owned by a domestic corporation, is a separate entity and not directly subject to the taxing power of the United States. 12 Mertens, § 45E.05, p. 21. Domestic corporations, however, are taxed on their worldwide income. 12 Mertens, § 45E.01, p. 1. The “normal tax rules regarding stock ownership” are applied so that the domestic corporation which owns stock in a foreign subsidiary is not taxed on “the results of the foreign corporation’s operations,” but when the domestic corporation receives a dividend from a foreign subsidiary, “United States tax arises.” 12 Mertens, § 45E.01, pp. 1-2. The theory of the tax credit is that it affords some protection from the double taxation to which dividends, in theory at least, otherwise would be subject. 12 Mertens, § 45E.01, p. 2.
According to the parties, Iowa does not permit combined filing for unitary business enterprises. The parties cite Kraft, 120 L. Ed. 2d at 64 n.9, which states: “Iowa is not a State that taxes an apportioned share of the entire income of a unitary business, without regard for formal corporate lines.” Thus, according to Morton Thiokol, the application of the reason and rule of Kraft to Kansas’ combined filing requires a close reading of footnote 23. It states:
“If one were to compare the aggregate tax imposed by Iowa on a unitary business which included a subsidiary doing business throughout the United States (including Iowa) with the aggregate tax imposed by Iowa on a unitary business which included a foreign subsidiary doing business abroad, it would be difficult to say that Iowa discriminates against the business with the foreign subsidiary. Iowa would tax an apportioned share of the domestic subsidiary’s entire earnings, but would tax only the amount of the foreign subsidiary’s earnings paid as a dividend to the parent.
“In considering claims of discriminatory taxation under the Commerce Clause, however, it is necessary to compare the taxpayers who are ‘most similarly situated.’ Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 71, 10 L. Ed. 2d 202, 83 S. Ct. 1201 (1963). A corporation with a subsidiary doing business in Iowa is not situated similarly to a corporation with a subsidiary doing business abroad. In the former case, the Iowa operations of the subsidiary provide an independent basis for taxation not present in the case of the foreign subsidiary. A more appropriate comparison is between corporations whose subsidiaries do not do business in Iowa.” 505 U.S. at 80 n.23.
The conclusion drawn by Morton Thiokol from footnote 23 is that under Kansas’ taxing scheme, there would be violative discrimination between the treatment of a domestic subsidiary which is less than 50% owned by the parent (Y) and a foreign subsidiary (Z). It appears that the hypothetical comparison also requires that neither Y nor Z did business in Kansas so that neither would be required to file a separate return in Kansas. Neither would be included in the domestic combination method. Y would not be included, according to Morton Thiokol, because the parent’s ownership percentage is too small; Z would not be included because it is foreign. According to Morton Thiokol, “little or no tax” would be paid by the parent on dividends from Y, but dividends from Z would be taxed in full. This conclusion seems to be derived from that part of the Kansas taxing scheme which, like the federal scheme, allows a deduction for dividends from domestic subsidiaries but not for dividends from foreign subsidiaries. Thus, tire argument continues, discrimination against foreign commerce would result.
Morton Thiokol does not claim to have any domestic subsidiaries which, like the hypothetical Y, do not do business in Kansas and are less than 50% owned by Morton Thiokol. Revenue points out that Morton Thiokol relie.s on hypothetical examples rather than building its case on its own factual circumstances. Morton Thiokol also postulates several other instances in which a domestic subsidiary would not be included in a combined filing. None, however, is applicable to Morton Thiokol in the present case.
The holding of Kraft is that the Iowa statute’s treating dividends received from foreign subsidiaries less favorably than dividends received from domestic subsidiaries is unconstitutional discrimination against foreign commerce. One of the arguments considered and rejected by the Court was that any discrimination against foreign commerce by Iowa can be justified because in the grand scheme, “the benefit to domestic subsidiaries might happen to be offset by other taxes imposed not by Iowa, but by other States and by the Federal Government.” 505 U.S. at 81. It was in the context of this argument that the Court inserted footnote 23. The footnote follows this sentence in the text of the opinion: “But whatever the tax burdens imposed by the Federal Government or by other States, the fact remains that Iowa imposes a burden on foreign subsidiaries that it does not impose on domestic subsidiaries.” 505 U.S. at 80.
The text contains the strong, unqualified statement that Iowa burdens foreign subsidiaries more than domestic ones. The footnote contains a qualification which would have diluted the strength and clouded the clarity of the text without materially altering the i'easoning. Without it, however, the statement would not have been unequivocally accurate. The footnote states that the burden will not always be unequal. The first paragraph sketches circumstances in which there would be no inequality; the second paragraph explains why the discriminatory circumstances are the ones on which the Court based its ruling.
Morton Thiokol interprets footnote 23 to mean that if any hypothetical circumstances can be devised which will result in differential treatment, the taxing scheme is unconstitutional. We find that interpretation is too broad. If that is what the Supreme Court meant, it easily could have said so. It did not say so. What we understand the Supreme Court to say was that the appropriate measure of discrimination is comparison of similar circumstances, and the circumstances chosen to illustrate the Supreme Court’s point seem ordinary rather than extraordinary and likely rather than unlikely. The comparison it suggested as appropriate in Kraft is “between corporations whose subsidiaries do not do business in Iowa.” 505 U.S. at 80 n.23. That measure reveaIs discrimination, while an ináppropriate or less appropriate comparison does not.
We interpret the significance of footnote 23 for the present case to be in identifying the appropriate comparison. Morton Thiokol, of course, advocates that a domestic subsidiary which does not do business in Kansas and is not included in combined filing should be compared with a foreign subsidiary which does not do business in Kansas and is not included in combined filing. The Supreme Court compared a parent corporation with a domestic subsidiary which does not do business in Iowa to a parent corporation with a foreign subsidiary which does not do business in Iowa. In this comparison, Iowa discriminated against the parent corporation with the foreign subsidiary because Iowa allowed a deduction for the dividends received by the parent with the domestic subsidiary, but not for the dividends received by the parent with the foreign subsidiary. Because the- domestic subsidiary did no business in Iowa, there was no independent basis for taxing it and thereby balancing the burdens. In Morton Thiokol’s comparison, where neither of the non-combined subsidiaries did business in Kansas and therefore would not file returns in Kansas, there would be no independent basis for taxing either of the subsidiaries.
Revenue correctly points out that Kraft “does not address the taxation of foreign dividends by domestic combination states.” Clearly, Kraft does not hold that the taxation of foreign dividends by a combination method is facially unconstitutional. Revenue contends that the aggregate tax imposed by Kansas on a unitary business with a domestic subsidiary would not be less burdensome than that imposed by Kansas on a unitary business with a foreign subsidiary because the income of the domestic subsidiary would be combined, apportioned, and taxed while only the dividend of the foreign subsidiary would be taxed. Allowing a deduction for the domestic dividend avoids double taxation. It is the use of the domestic combination method which distinguishes the Kansas and Iowa tax schemes.
Morton Thiokol also argues that Kansas’ treatment of Section 78 “gross-up” is improper under Kraft. Morton Thiokol explains that the term “Section 78 gross-up’ ” results from the foreign dividend’s being increased (“grossed up”) by the amount of the deemed paid taxes. Its argument with regard to the “gross-up” is identical to its argument on foreign dividends in general.
The hypothesized examples bear little, if any, resemblance to the actual circumstances of the taxpayer in the present case. In a combined filing state, such as Kansas, the hypothetical parent’s tax base includes the combined federal taxable income of its combined domestic subsidiaries as well as dividends from foreign subsidiaries. We conclude there is no showing that this method is discriminatory under the holding in Kraft; therefore, it is not violative of the federal Constitution’s Commerce Clause (Art. I, § 8, cl. 3).
It should be noted that Kraft was not considered by BOTA in reaching its decision in the present case. BOTA’s order was issued on February 17, 1992, and Morton Thiokol’s petition for reconsideration was denied on March 16, 1992. Kraft was decided June 18, 1992.
We next consider if the domestic combination method is contrary to K.S.A. 79-32,141 and K.A.R. 92-12-77. K.S.A. 79-32,141 provides:
“The director may allocate gross income, deductions, credits, or allowances between two or more organizations, trades or businesses (whether or not incorporated, or organized in the United States of affiliated) owned or controlled directly or indirectly by the same interests, if the director determines such allocation is necessary to prevent evasion of taxes or to clearly reflect income of the organizations, trades or businesses.”
In its order, BOTA stated:
“The Board also agrees with the Director of Taxation, that K.S.A. 79,32,141 authorizes the Department to utilize the combined report method when two or more corporations are conducting a unitary business. The appellant argues that the Director also must make some type of showing that the combined report method is necessary to clearly reflect income of the business, and that in this case no showing was made. However, the Board finds that this is an erroneous interpretation of the statute, and that pursuant to the statute this method can be required by the Director if the Director determines that it is necessary.”
With regard to the middle sentence of the quoted portion of the BOTA order, Morton Thiokol denies arguing that the Director was required to malee a determination that the combined reporting method was necessary to clearly reflect the income of the business. Morton Thiokol asserts that it argued, instead, that the Director was required to malee a determination that it was necessary to include Eaton’s Section 936 subsidiary income and the foreign dividend Section 78 gross-up in its taxable income. Morton Thiokol, of course, contends that the requisite determination was not made.
Morton Thiokol contends that the worldwide combination method rather than the domestic combination method should be used to compute its Kansas tax liability for tax years 1981-83. It argues that the worldwide combination is the only “fair method of apportionment” “because otherwise Kansas will be taxing more than 100% of the income arising from the operations of the Taxpayer from its domestic U.S. corporations.” We find no support in the record for this statement.
Morton Thiokol also takes the position that K.A.R. 92-12-77 authorizes the use of the worldwide combination method. The regulation states:
“If a particular trade or business is carried on by a taxpayer and one (1) or more affiliated corporations, nothing in K.S.A. 79-3271 et seq., and 79-4301, article IV or in these regulations shall preclude the use of a combined income method of reporting whereby the entire business income of such trade or business is apportioned in accordance with K.S.A. 79-3279 to 79-3287 and 79-4301, article IV.9 to IV. 17.”
In order to explain the difference between the domestic combination method and the worldwide combination method, BOTA quoted from the June 1985 Final Report and Recommendations of the Kansas Tax Review Commission. The quoted paragraphs are set out in our initial discussion of BOTA’s order.
Based on the' following excerpt from the Report, BOTA concluded that the legislature intended that the domestic combination method be used:
“ ‘The Kansas domestic combination policy has been sanctioned by the Kansas Legislative committees on numerous occasions. The 1983 Special Committee on Assessment and Taxation examined the Department of Revenue’s utilization of domestic combination. This Committee also considered the possible implementation of a worldwide combination policy, but declined to make recommendations for statutory change. It also noted that Governor John Carlin has taken a position against a worldwide combination policy.’ ”
BOTA also relied on the Report to supply its rationale:
“ ‘The Commission is mindful that the problems attendant in any method devised to tax the income of multijurisdictional corporations are some of the most complex of any faced by the state in the administration of the various tax laws. The unitary system of taxation whereby combined reporting of income is required of a unitary business enterprise appears to be a necessary policy for the state to ensure full accountability for 100 percent of the income of the enterprise. Absent such a policy it would be possible for a multiple-entity business enterprise to shift income from state to state by means of manipulative accounting. On the other side, the Commission recognizes that the Kansas domestic combination policy is perceived by many to contain inherent inequities. Although transition to a worldwide combination policy may eliminate some of these perceived inequities, the Commission is unable to make such a recommendation in light of the.competition among states to foster economic development and the perception of such a form of taxation in the business community. The current system of taxing multijurisdictional corporations, while not perfect, is appropriate for the time being. Therefore, the Commission makes the following recommendation.
‘Recommendation
‘The state should continue a unitary system of taxing income of multi-jurisdictional corporations through its present domestic combination policy. The Commission does not believe it is desirable to adopt a worldwide combination method of taxation.’ ”
Revenue contends that the various states use a variety of apportionment methods and that the domestic combination method is nothing more or less than one of many acceptable methods for apportioning income. Revenue asserts that Oklahoma prohibits combined filing; Missouri limits combined filing to corporations which do at least half of their business in the state (Williams Companies v. Director of Revenue, 799 S.W.2d 602 [Mo. 1990], cert. denied 501 U.S. 1260 [1991]); Colorado has approved use of the worldwide combination method only in certain circumstances (Hewlett-Packard Co. v. Dept. of Revenue, 749 P.2d 400 [Colo. 1988]); and the California Supreme Court, reviewing a series of United States Supreme Court decisions involving state taxation of multinational corporations, noted that assessments will be disturbed only when the corporate taxpayer has shown by clear and cogent evidence that the income attributed to the state is out of all proportion to the business transacted in the state (Barclays Bank Internat., Ltd. v. Franchise Tax Bd., 2 Cal. 4th 708, 720, 8 Cal. Rptr. 2d 31, 829 P.2d 279 [1992]). In Pioneer Container Corp. v. Beshears, 235 Kan. 745, 756, 684 P.2d 396 (1984), this court quoted Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 77 L. Ed. 2d 545, 103 S. Ct. 2933 (1983), for the same proposition which was set out in the California opinion. This court stated that in Container Corp. the high court had “approved, in general, the three-factor income allocation formula set forth in UDITPA.” 235 Kan. at 756.
K.A.R. 92-12-77 provides that nothing in UDITPA or the mul-tistate tax compact article on division of income or Kansas regulations “shall preclude the use of a combined income method of reporting.” As Revenue points out, UDITPA “apportions and allocates income,” but it “does not define the income base that is to be apportioned and allocated.” The preapportionment tax base is defined by K.S.A. 79-32,138(a) using federal taxable income, and K.S.A. 79-32,138(d) provides that the preapportionment tax base is apportioned and allocated using UDITPA. We concur in the conclusion reached by BOTA. We find no merit in appellant’s argument and conclude that the use of the domestic combination method is not contrary to K.S.A. 79-32,141 and K.A.R. 92-12-77.
Finally, Morton Thiokol argues that it was denied equal protection by Revenue’s differential treatment of similarly situated taxpayers. The- hearing in this action was held on November 20, 1991, and BOTA’s order was issued on February 17, 1992. Eleven days later the director for corporate tax for Caterpillar Inc. wrote to Muszanski “a follow-up to recent discussions you have had with members of our tax department.” When Morton Thiokol petitioned BOTA- for reconsideration of its order, it attached a copy of the letter from Caterpillar, asserted that Caterpillar and Morton Thiokol are similarly situated corporations, and posed some rhetorical questions about equal protection.
In its brief, Morton Thiokol asserts that its petition for reconsideration “requested that the Board have an evidentiary hearing and that the Taxpayer was attaching this letter in the nature of newly discovered evidence and requesting the Board for oral argument on reconsideration of its Order, and having an eviden-tiary hearing to clarify the record.” K.S.A. 1992 Supp. 77-529 is the statutory authority for filing a petition for reconsideration with BOTA. It indicates that “the specific grounds upon which relief is requested” should be stated by the aggrieved party. K.A.R. 94-2-ll(c) provides, in pertinent part:
“If the motion for rehearing is for the purpose of submitting new or additional evidence that was not available at the time of the hearing or at the time all evidence was submitted for the board’s review, the nature and import of such evidence shall be briefly stated. Evidence that was available or that could have reasonably been made available at the time of the hearing or at the time all evidence was submitted for the board’s review that was not submitted at that time will not be allowed except for good cause showii and at the discretion of the board.”
On March 16, 1992, BOTA denied the petition for reconsideration. In pertinent part, the order states:
“The Board finds, upon review of the Appellant’s Motion for Rehearing, that no new or additional evidence is offered that would persuade the Board that the original order should be modified or that a rehearing should be granted. The Board, therefore, concludes that the Order as originally issued should be, and is hereby, sustained.”
After Morton Thiokol had taken an appeal from the order of BOTA and the record was being or had been certified for the appeal, Revenue filed a motion requesting that the Caterpillar letter be removed from the record on appeal on the ground that it was unoffered and unadmitted. The motion was granted by BOTA on September 28, 1992. The issue has been preserved for determination in this appeal.
Morton Thiokol did not, in its petition for reconsideration, present the letter as newly discovered evidence or offer reasons why the letter was not obtained earlier. Morton Thiokol did not request that the proceeding be reopened or that there be an evidentiary hearing specifically with regal'd to Caterpillar. Morton Thiokol, however, did state that there are other similarly situated corporations and that it “believes some of these other taxpayers will come forward, if the Board reopens the evidentiary hearing.” We conclude that BOTA did not commit error in granting Revenue’s motion to remove the letter from the record on appeal. Our conclusion is based upon the fact that the letter 'was not admitted into evidence and, in addition, appellant failed to comply with the provisions of K.A.R. 94-2-11(c). Absent the letter, there is no evidentiary basis for Morton Thiokol’s equal protection argument.
The order of BOTA affirming the Kansas Department of Revenue’s assessment of additional corporate income tax against the taxpayer, Morton Thiokol, Inc., is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal from an order of the Graham District Court changing custody of a four-year-old boy from mother to father. The case comes before us following the granting of a petition for review of the decision of the Court of Appeals. See Hill v. Hill, 5 Kan. App. 2d 1, 611 P.2d 158 (1980).
The parties, Grover and Linda Hill, were married in 1974. They have one child, Brian, born September 18, 1975; the trial court’s order changing his custody is the target in this appeal.
On October 30, 1978, Linda moved out of the home she and Grover had shared in Morland, Kansas. She took Brian with her, and ostensibly went to live with an aunt in Farmington, New Mexico. Grover filed a petition for divorce in November, 1978; in it, he alleged that Linda was a proper person to have the custody of Brian. Linda waived service of summons and entered her voluntary appearance in the case. The parties entered into a property settlement agreement, by which they provided for custody of the child to be in Linda, subject to reasonable visitation, and they agreed upon support payments. A default divorce decree was entered on March 5, 1979; it incorporated and approved the agreement of the parties. Grover filed a motion to change custody on July 5,1979, four months after the divorce was granted; Linda responded with a motion to change or modify visitation rights. An evidentiary hearing was held on August 9, 1979, and both motions were heard by the trial court.
These facts were developed at that hearing. Grover had remained in Morland; he was living in the home which the parties acquired during the marriage; and he was still working for the same employer for whom he had worked in the oil fields near Morland for several years. Linda, however, was not living with her aunt in Farmington. About two weeks after she arrived in New Mexico, she moved in with Larry Holden in Aztec, New Mexico, and she has been living with him ever since. They live in a two-bedroom trailer house; Brian lives with them. Larry’s 52-year-old brother, Tommy, also lives there, although he is away quite often for four or five days at a time. He and Brian share a bedroom.
About two months after the divorce was granted, Linda brought Brian to Kansas to stay with Grover while she accompanied Larry to California, where he was going at his employer’s request. Upon their return from California, Linda came to Kansas to get her son, but he was visiting relatives in Garden City. She returned to New Mexico without him, and shortly thereafter she was advised that Grover was going to file a motion to change custody. The evidence indicates that most of the parties’ relatives live in Kansas; that both parties love Brian; that both desire his custody; and that both give him good physical care.
The trial judge, in announcing his decision, said:
“On the one hand we have a father who owns a house and evidently a fairly stable job who has provided a stable environment for the child who wants the child. We have a mother who certainly has a mother’s love for the child and wants the child. It would be a lot easier if I heard testimony that one of them did not want the child or did not have a proper place to care for it. I can only . . . determine what I think is the best . . . for it at this time.
“I certainly do not approve of the mother living with — a single woman living with two single men in a two bedroom trailer house. I suppose that there is absolutely not any way for me to not be somewhat prejudiced by that type of morality. ... I don’t condone people living together that are single, and I assume in most states it’s against the law. . . .
“I’ve heard absolutely no testimony from anybody indicating that either parent does not take care of this child properly, that it’s clean, it’s well fed, it gets its bath. The only thing I can do at this point, and 1 want you to all know that I have continuing jurisdiction over these matters and if a change of circumstances arises again, I’ll hear it again, I assume, if you can’t agree upon something. But my only feeling at this time is that the child would be in a better and more stable environment with the father. I will change the custody to the father at this time subject to the reasonable visitation by the mother. . . .
“Again, there is absolutely no way that I can . . . make both of these parents happy. And when you leave it up to me, the only thing I can do is what I think is right for the welfare and the benefit of this child. And after hearing the testimony, it’s my feeling that the child would be better off with its father at this time.”
The court’s order was set forth in a journal entry filed August 24, 1979. That order included the following finding:
“3. That each party resides at the respective residence occupied by each party at the time of the divorce, on March 5, 1979.”
The journal entry then proceeded to include the court’s order changing custody. Linda appealed.
The Court of Appeals reversed, holding that the trial court’s order of March 5, 1979, was res judicata as to all matters which had been or which could have been litigated on that date. The Court of Appeals said:
“As may be seen, there is no finding of a change of circumstances since the original custody order — in fact, finding No. 3 is to the effect that there has been no change. A reading of the trial court’s oral remarks at the close of the hearing reinforces the conclusion that the order was based on a simple ‘best interests’ finding, and not on a ‘change of circumstances’ finding. The deciding factors seemed to be the mother’s living style, which the trial court couldn’t ‘condone,’ and the more commodious living quarters available in the father’s house. Neither of those elements had changed since about two months before the divorce.
“Kansas law in this area appears clear to us. ‘The trial court has continuing jurisdiction over custody of minor children in a divorce action and may, on proper motion and notice, change or modify any prior order of custody when a material change in circumstances is shown.’Hardenburger v. Hardenburger, 216 Kan. 322, Syl. ¶ 1, 532 P.2d 1106 (1975) (Emphasis added). In applying that rule, it is well settled that a decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. Simmons v. Simmons, 223 Kan. 639, 642, 576 P.2d 589 (1978); Lewis v. Lewis, 217 Kan. 366, 368, 537 P.2d 204 (1975). It is immaterial that the original custody order is based on the parties’ settlement agreement and not on evidence presented at a contested hearing. In Hardman v. Hardman, 203 Kan. 825, 827, 457 P.2d 86 (1969), the court stated:
“ ‘The general rule is that the court’s judgment is conclusive and final as to matters and facts which were actually litigated and determined. Not only is everything adjudicated between the parties which the parties chose to litigate, but everything incidental thereto, and which properly could have been litigated with due diligence. ’ (Emphasis added.)
“Hardman also was an uncontested divorce in which no evidence on the fitness of either party was introduced. Yet on a subsequent motion to change custody the court held that the issue of custody had been adjudicated and was res judicata as to events occurring prior to the uncontested divorce, that a finding of parental fitness was inherent in the trial court’s original custody order, and that evidence of predivorce occurrences was inadmissible. 203 Kan. at 827-8. The court summarized:
“ ‘This is a change of custody case. Inquiry is always permitted on the issue of custody when the circumstances have changed. However, the facts and circumstances embraced in the issue on which the prior order of custody rested are res judicata. (See Wear v. Wear, 130 Kan. 205, 285 Pac. 606.)
“ ‘The doctrine of res judicata applies to an order awarding custody of a minor in that a court cannot reexamine the facts formerly adjudicated and make a different order thereon. There must be a substantial change of circumstances, presenting a new case, before the court may make a substantial change in the custody order.’ ” 5 Kan. App. 2d at 2-3.
Grover Hill testified that he was not aware that Linda was living with Larry Holden until “around the time of the divorce.” He said that he had suspicions earlier, but he denied knowledge up until that time. The trial court was not advised of the living arrangements of either party, nor was it called upon to weigh evidence and determine which parent would provide the best environment for the child and with which parent the child would receive the best care, when the default divorce was granted.
This brings us to the principal questions in this appeal: Does the doctrine of res judicata apply as strictly and with as much force in child custody proceedings as it does in other civil actions? Where a default decree is entered, and the parties are not both before the court, and where relevant and probative facts then existing are unknown to the court, may the court at a later time take those facts into consideration in determining custody? In short, and under the circumstances outlined above, does the doctrine of res judicata give way to the best interest of the child?
We have not previously considered this conflict, but find that a number of the courts of our sister states have determined the issue. In Washington, statutory law permits modification of child custody orders by a court “upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree . . . .” Wash. Rev. Code § 26.09.260. The Washington Court of Appeals in McDaniel v. McDaniel, 14 Wash. App. 194, 539 P.2d 699 (1975), quoted from an earlier Washington Supreme Court case, In re Rankin, 76 Wash. 2d 533, 536, 458 P.2d 176 (1969), where that court explained the rationale for the “unknown facts” rule as follows:
“Where a custody decree is entered upon default, the court has had no opportunity to observe the two contending parents upon the witness stand or to examine the evidence concerning their fitness and concerning the welfare of the child. It must accept the allegations of the petitioner or, at best, the uncross-examined testimony of the petitioner. Therefore, in such a case, the rule that a change of circumstances must be shown before a change of custody can be ordered does not have its usual efficacy.” 14 Wash. App. at 197.
In an earlier case, Wendland v. Wendland, 29 Wis. 2d 145, 138 N.W.2d 185 (1965), the Supreme Court of Wisconsin said:
“We have suggested that ‘the doctrine of res judicata is not to be applied to custody matters with the same strictness as to others.’ We also have said that ‘[i]t is logical that the interest of the child and of the public in the child’s welfare should not be concluded by the failure of the parents to bring relevant and important facts to the attention of the court.’ In Miller v. Miller [15 Wis. 2d 583, 587, 113 N.W.2d 403 (1962)], we further said:
“ ‘When the question concerns the custody of the children of divorced parents, the trial judge must not be foreclosed from inquiring into matters antedating the preceding judgment. The doctrine of res judicata is not a complete barrier in custody matters if circumstances exist which prompt the trial judge, in his discretion to go behind the previous determination.’
“If there are facts (bearing substantially on the question of custody) existing but not disclosed to the court at the time of its original order, the court, in its discretion, should be free to receive evidence on those facts and to consider the evidence in its review of the custody order. Naturally, at the upcoming hearing the trial court will be primarily concerned with the way in which the present custody order has worked out and with the then existing fitness of the parties to have custody and what custody order is then in the best interests of the children. But in resolving the custody question, the trial court should be free to consider evidence bearing on this question that may reach back before the time of its prior order.” 29 Wis. 2d at 157-158.
The Supreme Court of Idaho reached a similar result in Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963). It said:
“Judgments affecting the custody, support and education of children, like other judgments, are conclusive upon the parties and privies, and the doctrine of res judicata is applicable thereto. 27B C.J.S. Divorce § 317 (8) b; 17A Am. Jur., Divorce & Separation, § 838; Annotation 9 A.L.R.2d § 623, et seq.
“However, the foregoing general rule is not to be applied strictly in all determinations affecting the welfare of children of divorced parents. The jurisdiction of the court continues after divorce for the protection of the welfare of such children. I.C. § 32-705. Where facts, affecting their welfare, existing at the time of the divorce or order awarding custody, are not called to the attention of the court, and particularly in default cases where the issues affecting custody have not been fully tried, the court upon a proper application may consider all facts and circumstances, including those existing prior to and at the time of the judgment or decree, in making a subsequent determination of custody.” 86 Idaho at 113-114.
Our statute, K.S.A. 1979 Supp. 60-1610(b) provides: “In all cases involving the custody of any minor children, the court shall consider the best interests of such children to be paramount.” Further, we note that where the parties have entered into a separation agreement and that agreement has been approved by the trial court and made a part of the decree, the agreement may be modified in the future only as to the custody, support or education of the minor children. K.S.A. 1979 Supp. 60-1610(e).
Child custody is indeed one of the most difficult areas faced by a trial court, let alone an appellate court. A court cannot be as precise in this area as it can when dealing with tort or contract. A judgment in a tort or contract case or in most any civil case becomes final; it is over, done, completed, finished. Not so when it comes to child custody, support, and education; orders in those areas may be reopened, changed, or modified as the children grow and their needs change, the economy changes, the parents move, remarry, change jobs, change their way of life, succeed, and fail.
The rule requiring a material change in circumstances is judicially imposed. Its purpose is to prevent the relitigation of issues already presented to and determined by a trial court. The purpose of the rule is meritorious; nevertheless, it should not prevent a trial court from hearing evidence which it has not previously heard and considered, and which bears upon the principal issue: the best interests of the child. When the judicial rule prevents a trial court from considering relevant evidence which it has not heard, and from basing its decision at least in part upon that evidence, the rule conflicts with the best interest guideline established by legislative and decisional law.
We hold that, where a custody decree is entered in a default proceeding, and the facts are not substantially developed and presented to the court, the trial court may later, in its discretion, admit and consider evidence as to facts existing at the time of the earlier order, and upon the full presentation of the facts the court may enter any order which could have been made at the initial hearing whether a “change in circumstances” has since occurred or not. Our statements to the contrary in Hardman v. Hardman, 203 Kan. 825, 457 P.2d 86 (1969) and in the other cases cited in the Court of Appeals decision, 5 Kan. App. 2d 1, are overruled.
In the case before us, the trial judge opted, over objection, to admit evidence of the facts as they existed at the time of the original decree. He was not previously aware of those facts. At the conclusion of the hearing he considered all of the evidence, including that disclosing the lifestyles of the parents, the suitability of their dwellings, and the stability of their homes. He found both parents fit, both willing and anxious for custody; and he found that the child’s best interests would be served by awarding custody to the father.
We find no error. The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Thomas Weigel was convicted by a jury of aggravated robbery, kidnapping and the theft of a car. He appeals and raises many points to be considered by this court.
The above charges arose from a robbery of the Nekoma State Bank in Rush County, Kansas. Defendant Weigel and four accomplices participated in the robbery, which occurred on January 5, 1979, at 4:00 p.m. A white over red car was stolen from the Rush County Livestock Auction to be used in the robbery. The robbers proceeded to the bank wearing ski masks, yellow surgical gloves and jackets. One of the accomplices was armed with a handgun. The defendant was armed with a sawed-off shotgun. Three of the bank employees were forced into the vault. Over $2,500.00 was taken from the bank premises, plus a woman’s pocketbook. The robbers closed the vault door and turned the handle thinking the vault was locked. They failed to turn the dial on the door, and those inside the vault were able to open the door. The sheriff’s office was notified and the highway patrol was alerted within thirty minutes after the robbery occurred.
Within thirty minutes after the robbers left the bank they abandoned the stolen car arid switched to Gary Weigel’s car. It became stuck in a snow drift north of LaCrosse, Kansas. A member of the highway patrol came upon the car and its five occupants. The guns and the money from the bank had been hidden previously in a snow drift by the side of the road. The vehicle and the five occupants were searched and released. The occupants checked into a motel at Hays, Kansas. The money was later retrieved from the snow drift by the defendant and two of his fellow participants.
After word of the bank robbery was received by the officers all five of those who participated were rounded up and arrested. The actual arrests occurred both on the day of the robbery and the day following. All except the defendant entered pleas of guilty to the charges. Lonnie Hill, who participated in the robbery, turned State’s evidence and testified against the defendant. According to Hill’s testimony the defendant planned the robbery and was the leader. The defendant was the one who owned and was armed with the sawed-off shotgun. Money taken from the bank included some marked money which was taken from the defendant when he was arrested. A lady’s brown purse, owned by one of the bank employees, was found in or around the abandoned stolen car. The sheriff located ski masks, yellow surgical gloves, and jackets worn during the robbery. These were found in an area surrounding the abandoned stolen car. Some of the stolen money in money sacks was located above ceiling tile in a motel room rented by one or more of the robbers. There can be little doubt as to the sufficiency of the evidence to convict the defendant and no claim of insufficiency is made. The foregoing evidence and other evidence to be mentioned later will bear upon the issues to be decided in this appeal.
The first issue on appeal concerns the admissibility of the marked money taken from the defendant at the time of his arrest. The defendant’s attack on admitting the money in evidence is based upon his claim that the issuance of the arrest warrant was not based upon probable cause. He argues that if the arrest was not legal any evidence obtained as a result of the arrest was also illegal and should not have been admitted in evidence at the trial. He cites Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), and Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964).
The warrant was issued upon a sworn complaint with a two- and one-half page single-spaced statement sworn to by a special agent of the Kansas Bureau of Investigation attached. The statement summarized the facts known and made known to the officer during interviews with various witnesses, including two of the suspects and fellow officers.
The United States Supreme Court has stated that the substance of any definition of probable cause is the reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 175, 93 L.Ed. 1879, 69 S.Ct. 1302, reh. denied 338 U.S. 839, 94 L.Ed. 513, 70 S.Ct. 31 (1949). Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. State v. Evans, 219 Kan. 515, 521, 548 P.2d 772 (1976); State v. Barnes, 220 Kan. 25, 28, 551 P.2d 815 (1976). Probable cause exists if the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972); State v. Morin, 217 Kan. 646, 648, 538 P.2d 684 (1975). We have read the affidavit upon which the warrant was issued and find the allegations therein sufficient to justify issuance of the warrant upon probable cause.
Although the defendant in his brief challenges the veracity of the affidavit, he failed at the trial court level to follow the proper procedure as outlined in Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978), to obtain a hearing thereon. He failed to allege that the matter contained in the affidavit was a known falsehood or made in reckless disregard for the truth. The statements challenged must be those of the affiant’s and not of the affiant’s informants. The challenger must offer proof or proffer evidence as to what statements are known falsehoods and name the witnesses who will testify under oath that the matters are lies. Because of these obvious failures defendant is precluded from going behind the statements in the affidavit at this late date.
Defendant next attacks the hair sample evidence. Hairs taken from defendant matched hairs taken from one of the ski masks. In this case the State obtained an order of the court directing that hair samples be cut from defendant’s head. There was no violation of Fourth Amendment rights against unreasonable search and seizure. The order of the trial court had the same effect as a lawful search warrant and under the procedure outlined in this opinion the use of the hair samples was lawful. State v. Buckner, 223 Kan. 138, 140, 574 P.2d 918 (1977); State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 (1977).
Defendant’s next point concerns his request that the court give an instruction on aiding a felon. Defendant had maintained throughout his trial that his actions, after he awoke from a drunken stupor and drove his companions away from the bank, were for the purpose of helping one of the female robbers get out of the state. He argues that this was his theory of defense and as such the court should have instructed thereon. We cannot agree. Aiding a felon is a separate criminal offense proscribed by K.S.A. 21-3812. It is not error to refuse an instruction thereon when the accused has not been charged with said crime and it is not a lesser included offense of the crimes of which he has been charged. Defendant was not charged with the crime of aiding a felon. The crime was not a lesser included offense of any of the crimes of which he was charged. See K.S.A. 21-3107. Therefore, the point is without merit.
Defendant next argues the evidence is insufficient to sustain a conviction of kidnapping. K.S.A. 21-3420 in pertinent part provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) [Not applicable.]
“(b) To facilitate flight or the commission of any crime;”
The actions of defendant in forcing the bank employees into a bank vault and attempting to lock the vault door were for the purpose of permitting the defendant and others to flee the scene and did constitute the crime of kidnapping. The facts were sufficient to bring this case within the guidelines of State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). See also State v. Nelson, 223 Kan. 572, 575 P.2d 547 (1978). The employees were confined. A confinement was not inherent in the nature of the crime and its purpose was to substantially lessen the risk of early detection. The point is without merit.
The defendant next objects to the testimony of Joann Phillips who was permitted to identify the defendant by his height, general appearance, piercing blue eyes and the sound of his voice. Objection is made to the sufficiency of the foundation for the testimony, and because the witness was not qualified as an expert in voice identification. As a foundation for this testimony, the prosecutor elicited from the witness the amount of time she was with the robber (10 to 15 minutes), the fact they were directly facing each other at a close distance, the care with which she noted the tone of his voice and voice inflections when he spoke to her in the bank, his height and build, and the fact she had listened carefully to defendant’s voice as he spoke in the courtroom. A witness need not be an expert in voice identification to testify as to the identity of the defendant by means of tone and voice inflections. It is the general rule that testimony by a witness that he or she recognized the accused by his voice is admissible in evidence, provided only the witness has some basis for comparison of the accused’s voice with the voice which he or she identifies as the accused’s. It is not necessary for the witness to qualify as an expert. The completeness of the identification goes to the weight of the evidence and not its admissibility. Mere hesitancy or uncertainty on the part of a witness in identifying an accused by voice recognition affects only the weight and not the admissibility of the testimony. State v. Nixon, 111 Kan. 601, Syl. ¶ 4, 207 Pac. 854 (1922); State v. Visco, 183 Kan. 562, 567, 331 P.2d 318 (1958); 70 A.L.R.2d 995; 29 Am. Jur. 2d, Evidence § 368.
Defendant objects to an additional instruction requested by the jury and given by the court after the case had been submitted to the jury for its consideration. The jury asked for a definition of the word “permanent” as used in “permanently deprived.” The trial court gave the following definition taken from K.S.A. 1979 Supp. 21-3110(6):
“To ‘deprive permanently’ means to:
“(a) Take from the owner the possession, use or benefit of his or her property, without an intent to restore the same; or
“(b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
“(c) Sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.”
If after the jury has retired for deliberation it desires further information as to the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response as the court finds to be required under the circumstances. K.S.A. 1979 Supp. 60-248(e); Tos v. Handle, 209 Kan. 139, 142, 495 P.2d 896 (1972); State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976).
Defendant simply argues that no instruction should be given to the jury after submission of the case. He does not quarrel with the statutory definition given. The authority to give such an instruction is provided by statute and is in direct contradiction to defendant’s argument. The point is without merit.
Defendant claims it was error for the court to permit one of the accomplices, Lonnie Hill, to give rebuttal testimony. Hill was called to testify that the story recited by the defendant while a witness in his own behalf was not true. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice. State v. Shultz, 225 Kan. 135, 138, 587 P.2d 901 (1978); State v. Lovelace, 227 Kan. 348, Syl. ¶ 7, 607 P.2d 49 (1980). This was proper rebuttal testimony.
The defendant complains that the State failed to conduct a preliminary hearing on the charges within ten days as provided by K.S.A. 1979 Supp. 22-2902. We note that under the statute either party on motion shall be granted a 15 day continuance. The hearing was originally set for the 11th day following defendant’s arrest and an attorney had been appointed previously for him. Prior to the hearing another attorney advised the court he was going to represent defendant. The latter attorney later withdrew because of a conflict. The date for preliminary hearing, originally set for January 19, was postponed on motion until January 29 because of this confusion. The defendant had been arrested on January 6, 1979, and the hearing was held on January 29, 23 days after his arrest. The defendant made no objection to this delay on January 29. He was bound over, entered a plea of not guilty, and was later convicted by a jury.
The time limitations in K.S.A. 1979 Supp. 22-2902 are directory, and inconsequential delay beyond the time specified for holding the preliminary hearing will not justify a dismissal. State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 (1975). Sufficiency of the preliminary hearing including its timeliness may be challenged only by motion to dismiss under K.S.A. 22-3208. State v. Smith, 215 Kan. 34, 37, 38, 523 P.2d 691 (1974). A motion under K.S.A. 22-3208 to dismiss or to grant appropriate relief must be filed no later than 20 days after arraignment. Failure to raise a question as to the sufficiency of the preliminary hearing by such a motion constitutes a waiver and precludes review on appeal. K.S.A. 22-3208(3). State v. Smith, 215 Kan. at 37.
The defendant next urges a mistrial based upon alleged misconduct of a juror and of the prosecuting attorney. He alleges they conversed during a recess in the trial. This charge was called to the attention of the court, a hearing was held, and the juror admitted saying “good morning” to the attorney. No conversation was remembered by either of these parties. They assured the court that nothing was said concerning the pending case. Defendant came forward with no evidence to sustain his charges. The point is without substance. See State v. Coburn, 220 Kan. 743, 747, 556 P.2d 376 (1976), and State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976).
The final point raised by defendant concerns the length of consecutive sentences which he contends is constitutionally impermissible as cruel and unusual punishment. He was sentenced to a term of 15 years to life for aggravated robbery, 15 years to life for kidnapping, and 3 to 10 years for theft. All sentences were made to run consecutively for an aggregated minimum term of 33 years. K.S.A. 1979 Supp. 22-3717 provides:
“(2) The Kansas adult authority shall hold a parole hearing for any inmate who achieves eligibility for a parole hearing in accordance with this subsection (2).
“(A) The following inmates shall be eligible for parole by the Kansas adult authority after fifteen (15) calendar years of confinement: (i) Any inmate sentenced to imprisonment for conviction of a class A felony, including sentences pursuant to K.S.A. 1979 Supp. 21-4618 [mandatory sentence for crime involving use of firearm]; (ii) any inmate who receives consecutive sentences that total to twenty-nine (29) years or more for the aggregated minimum term; . .
The defendant’s contention, that he is not subject to parole and must serve out the entire 33 year aggregate minimum term, is in error as indicated by the terms of the above statute. Defendant may achieve eligibility for parole after fifteen calendar years of confinement.
Defendant attempts to justify his claim of cruel and unusual punishment on the ground his accomplices, who pled guilty, received lighter sentences which were made to run concurrently. At sentencing there was evidence in the presentence report which indicated that defendant had at least two prior felony convictions. The evidence indicated that defendant was the leader, planned the bank robbery, and was armed with a sawed-off shotgun during the bank robbery and kidnapping. His role in the actual commission of the crimes justified more severe punishment.
Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. However, after applying the factors bearing on the question, which this court outlined in State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978), we cannot say the aggregate minimum sentences in this case shocks our collective conscience or offends our fundamental notion of human dignity. Comparing the sentences received by defendant with sentences meted out in other states for these same crimes the defendant’s sentences are not disproportionate. See Annot., Cruel Punishment — Length of Sentence 33 A.L.R.3d § 5, p. 359.
At this point we note the recent case of Rummel v. Estelle, 445 U.S. 263, 63 L.Ed.2d 382, 100 S.Ct. 1133 (1980). Rummel was sentenced to life imprisonment upon conviction of a felony which involved obtaining $120.75 by false pretenses. Defendant had previously been convicted of two felonies, one for defrauding another of $80.00 by use of a credit card and the second for forging a check in the amount of $28.36. The United States Supreme Court in a 5-4 decision held that the life sentence imposed upon the defendant pursuant to the Texas recidivist statute did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments, notwithstanding defendant’s claim that life imprisonment was “grossly disproportionate” to the three property-related felonies that formed the basis for his sentence. The thrust of that decision appears to indicate a retreat by the high court from Weems v. United States, 217 U.S. 349, 54 L.Ed. 793, 30 S.Ct. 544 (1910), and its progeny. In Rummel the majority opinion states:
“[0]ne could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative. . . .” 445 U.S. at 274.
In light of the foregoing pronouncement this court has reexamined its position taken in State v. Freeman, 223 Kan. 362, and believes Freeman should not be changed. We are not inclined to give up our judicial prerogative of examining disproportionate sentences to determine which sentences may be impermissibly disproportionate to the crimes for which they are inflicted.
We now hold that under Section 9 of the Kansas Bill of Rights the prohibition against the infliction of cruel or unusual punishment relates to more than inherent cruelty in the method of punishment. Some of the criteria which are to be considered in determining what is cruel or unusual punishment as to the length of a sentence include excessiveness, disproportionality, lack of necessity, unacceptability to society, and arbitrariness of infliction. None of these criteria are present in the present case and the sentences imposed in this case are approved.
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The opinion of the court was delivered by
McFarland, J.:
This case involves determination of a question of law certified to this court by the United States Court of Appeals for the Tenth Circuit under the authority of the Uniform Certification of Questions of Law Act (K.S.A. 1979 Supp. 60-3201 et seq.).
Certified Question of Law
Whether the Governmental Ethics Commission, the majority of which is appointed by legislators, constitutes a usurpation of executive power by the legislative branch of government and thereby violates the doctrine of separation of powers as the same is recognized as a part of the Kansas State Constitution?
Before determining the question some background information is needed. In the fall of 1978 a complaint was filed with the Governmental Ethics Commission alleging Doris E. Parcell had violated the Campaign Finance Act (K.S.A. 1979 Supp. 25-4101 et seq.) by failing to prepare and file reports with the secretary of state relative to her expenditures in a Wyandotte County election to secure the defeat of Associate District Judge Francis J. Donnelly and to support Bill Robinson, Jr., as a write-in candidate. The Commission commenced its investigation of the complaint. Ms. Parcell then filed a multifaceted action in the United States District Court for the District of Kansas, challenging the constitutionality of various provisions of the Campaign Finance Act, including the composition of the Governmental Ethics Commission.
The case was heard by the Honorable Earl E. O’Connor, who upheld each of the various challenged statutes and entered judgment for the defendants. The trial judge’s opinion is reported in Parcell v. State of Kan., 468 F. Supp. 1274 (D. Kan. 1979). Ms. Parcell appealed the decision to the United States Court of Appeals for the Tenth Circuit. The previously stated question, involving interpretation of Kansas law, has been certified to this court with resolution of the federal issues by the circuit court being held in abeyance until the certified question is determined.
The composition of the Governmental Ethics Commission is fixed by K.S.A. 1979 Supp. 25-4119a. The action herein was commenced in February of 1979. The 1979 Kansas legislature amended the statute effective July 1, 1979. The federal district court decided the case in April, 1979. The 1979 amendments altered the statute in a number of respects which are primarily “housekeeping” in nature and none of the amendments affect the question of law certified herein. Under such circumstances only the present statute needs to be cited. Additionally, should defendants prevail on the appeal, the Commission, operating under the present statute, will proceed with its investigation. The present statute provides, in relevant part:
K.S.A. 1979 Supp. 25-4119a:
“(a) . . . The governmental ethics commission shall consist of eleven (11) members of whom five (5) shall be appointed by the governor, two (2) by the president of the senate, two (2) by the speaker of the house of representatives, one (1) by the minority leader of the house of representatives and one (1) by the minority leader of the senate. Not more than three (3) of the members appointed by the governor shall be affiliated with the same political party. . . .
“(b) . . . One of the members appointed by the governor shall be designated by the governor to be chairperson of the commission. A majority vote of six (6) members of the commission shall be required for any action of the commission.”
The contentions of the parties are summarized by the certifying court as follows:
“The plaintiff s argument is that the Commission in its present form in and of itself violates the principle of separation of powers because although there is a majority appointed by members of the legislature, it functions in a predominantly executive manner. Plaintiff argues that this constitutes usurpation of executive power by the legislative department of government and thereby violates the Kansas Constitution. ...
“The defendants contend that the Act here in question is constitutional under Kansas law for the reason that a perfect separation of powers is not required by the Constitution or laws of Kansas, and that neither in form nor in substance does the Act constitute a usurpation by the legislature, which is the accepted test enunciated in State, ex rel., v. Bennett, 219 Kan. 285, 287, 547 P.2d 786 (1976).”
In a well-reasoned opinion the trial judge concluded the statute does not violate the principle of separation of powers. Parcell v. State of Kan., 468 F. Supp. at 1276-1280. We agree.
The trial judge correctly concluded: (1) Neither the United States Constitution nor the Kansas Constitution expressly provides for separation of powers; (2) states are not required to abide by the doctrine of separation of powers; and (3) Kansas decisions have adopted the separation of powers doctrine. Authority for these well-established general principles of law is set forth in the trial court’s opinion and needs not be repeated herein.
The leading Kansas case concerned with the application of the separation of powers doctrine is State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976), which held at 290-291:
“When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. [Citations omitted.]
“The problem, of course, is to determine whether or not a usurpation of powers has taken place. That term has not heretofore been clearly defined. It has been suggested that to have a usurpation one department of the government must be subjected directly or indirectly to the coercive influence of the other. [Citations omitted.] It seems to us that to have a usurpation of powers there must be a significant interference by one department with the operations of another department. In determining whether or not an unconstitutional usurpation of powers exists, there are a number of factors properly to be considered. First is the essential nature of the power being exercised. Is the power exclusively executive or legislative or is it a blend of the two? A second factor is the degree of control by the legislative department in the exercise of power. Is there a coercive influence or a mere cooperative venture? A third consideration of importance is the nature of the objective sought to be attained by the legislature. Is the intent of the legislature to cooperate with the executive by furnishing some special expertise of one or more of its members or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature? A fourth consideration could be the practical result of the blending of powers as shown by actual experience over a period of time where such evidence is available. We do not wish to imply that these are the only factors which should be considered but it seems to us that they have special significance in determining whether a usurpation of powers has been demonstrated.”
Obviously, to determine whether there has been a usurpation we must first carefully examine what the Governmental Ethics Commission is and what it does. The Commission is empowered to adopt rules and regulations for the administration of the Campaign Finance Act (K.S.A. 1979 Supp. 25-4119a). The Commission prescribes the forms upon which reports of campaign expenditures are to be made (K.S.A. 1979 Supp. 25-4111), although the completed reports are to be filed with the secretary of state. The Commission reviews the reports of elected state officials. The Commission may issue advisory opinions on questions concerning the application of the act (K.S.A. 1979 Supp. 25-4120). The Commission investigates complaints of alleged violations of the Campaign Finance Act and conducts hearings thereon. If the Commission concludes a violation of the act has occurred, a copy of the report is to be sent to the appropriate county or district attorney as well as to the attorney general (K.S.A. 1979 Supp. 25-4125). If the person the Commission has found to have violated the act wins the election, then a copy of the report goes to the head of that branch of government — supreme court, governor, or legislature (K.S.A. 1979 Supp. 25-4127). Notably absent is any means for the Commission to enforce compliance with the act or penalize violators thereof. It only investigates and reports to those who have authority to penalize or enforce.
Clearly, the Commission exercises powers traditionally ascribed to the legislative and the executive branches, but, as stated in State, ex rel., v. Bennett, 219 Kan. 285, unless one branch is usurping the power of another and coercively influencing the other there is no violation of the doctrine of separation of powers.
In Parcell v. State of Kan. at 1279, the trial court analyzed this second factor from Bennett as follows:
“Second, we must determine the degree of control by the legislative departments in the exercise of power. In Bennett, supra, 219 Kan. at 290, 547 P.2d 786, the Kansas court stated the question as, ‘Is there a coercive influence or a mere cooperative venture?’ Under the appointment plan, four designated legislators individually appoint a total of six members of the Commission. The governor appoints the remaining five members. Unlike the Federal Election Commission in Buckley [Buckley v. Valeo, 424 U.S. 1, 46 L.Ed.2d 659, 96 S.Ct. 612 (1976)], the appointments do not appear to be subject to confirmation by the legislature. The vote of six of the members is necessary to conduct business. K.S.A. 25~4119a. We are convinced that the legislature’s control of the Commission is not coercive.
“The defendants further stress that at least two and as many as four of the legislative appointments would be of the same political party as the governor, assuming party lines were followed. The governor may appoint no more than three members from the same party. K.S.A. 25-4119a(a). Again assuming conformity with party lines, at least five and no more than seven of the members would be of the same party as the executive. This indicates again the intent of the legislature to establish a balanced commission.”
We agree. Clearly, this is a cooperative venture rather than the usurpation of power by the legislative branch from the executive branch. Additionally, we note the chairperson is an appointee of the governor, which is another effort to balance the Commission.
The Commission investigates members of both the legislative and executive branches of government. As correctly noted by the trial court at page 1279:
“The third factor is the nature of the objectives sought to be attained by the legislature. In Bennett, supra, at 290, 547 P.2d at 792, the Kansas court states the relevant question as, ‘Is the intent of the legislature to cooperate with the executive by furnishing some special expertise of one or more of its members or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?’ Defendants contend the goal of the KCFA is to increase the public trust in our elected officials. The Commission reviews the campaign finances of elected state officials from all branches of government. To insure fair consideration, the legislature divided the power of appointment between the legislative and executive departments. Clearly this division gives the Commission needed independence should it be called upon to investigate those officials who appointed some of its members. In no instance does a single official, whether governor or a legislator, appoint a majority of the Commission.”
The trial court further concluded that the practical result of the blending of the powers (the fourth factor in Benneti) was not a violation of the separation of powers doctrine. We agree.
We conclude that the Governmental Ethics Commission, the majority of which is appointed by legislators, does not constitute a usurpation of executive, power by the legislative branch of government and does not violate the doctrine of separation of powers as the same is recognized as a part of the Kansas Constitution.
It is so Ordered. | [
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The opinion of the court was delivered by
Herd, J.:
Texaco, Inc. et al. brought a declaratory judgment action against Wendell B. and Mildred V. Fox seeking a judgment declaring its oil and gas lease to be in full force and effect and enjoining the defendants from interfering with Texaco’s right of ingress and egress to the leased acreage. The petition also sought equitable relief as the court deemed proper. The case was tried to the court which quieted defendant’s title to certain mineral interests and cancelled Texaco’s oil and gas lease for improper payment and for nonpayment of royalties to Fox, for failure to reasonably develop the leasehold estate and for failure to obtain production in commercial quantities. Texaco appeals.
Briefly stated, the pertinent facts are as follows. On July 15, 1946, Alonzo Orla Ivers, Celia Ivers and Adda Ivers Post executed a warranty deed to Wendell B. Fox conveying the following described real estate in Meade County, Kansas, to-wit:
“The Northeast Quarter (NE4) of Section Thirty-two (32), and the Southwest Quarter (SW4) of Section Thirty-three (33), Township Thirty-three (33) South, Range Twenty-nine (29) West of the 6th P.M.”
The deed contained the following reservation:
“Except that there is hereby reserved to the grantors, their heirs and assigns all of the oil and gas royalty in and under said real property for a term of twenty (20) years from date of this conveyance, unless oil and/or gas is produced from said property in commercial quantities during said twenty-year term, and in such event the oil and/or gas royalty reservation shall continue as long as oil/or gas is produced in commercial quantities . . . .”
On August 21, 1951, Adda Ivers Post, Alonzo Orla Ivers and Celia Ivers, Henry Blair Cooper, as trustee for Benjamin N. Kneeland, under the last will and testament of Mary Laurinda Kneeland, deceased, Benjamin K. Kneeland and Gladys Knee-land, as lessors, granted Texaco an oil and gas lease on the described real estate “for a term ending August 21, 1956, and as long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of them is produced.” The lease also contained the following provision:
“Notwithstanding anything in this lease contained to the contrary, it is expressly agreed that if lessee shall commence drilling operations at any time while this lease is in force, this lease shall remain in force and its terms shall continue so long as such operations are prosecuted and, if production results therefrom, then as long as production continues.”
On December 20, 1951, Adda Ivers Post conveyed to Wendell B. Fox an undivided l/12th of the landowner’s share of the oil, gas and other minerals produced and saved from said lands, to continue for 20 years from July 15,1946, and as long thereafter as hydrocarbons are produced in “commercial quantities.” On January 7, 1952, Alonzo Orla Ivers and Celia Ivers made an identical conveyance.
The defendants ratified the oil and gas lease on January 10, 1952, by separate instrument stating they “did ratify, approve, confirm, and adopt” Texaco’s oil and gas lease and acknowledged the same to be in full force and effect according to the terms and provisions of the lease.
Texaco commenced drilling an oil well within the primary term of the lease and completed Fox #1 well as an oil producer on September 28, 1956. Fox #2 well was completed on December 21,1956. Fox #3 well was completed on December 27, 1957; and Fox #4 well on August 28,1959. All four wells were oil producers and are located on the Northeast Quarter (NE4) of Section Thirty-two (32). Wells #1, #3 and #4 were shut-in on June 3, 1964, May 20,1971, and June 10, 1968, respectively. None of the shut-in wells have been plugged as they are prospects for secondary recovery. Fox #2 well has produced oil since its completion and is still producing.
During the latter part of 1976 and early 1977, Texaco resolved to test additional geological formations on wells #3 and #4. It contacted Fox, advising him of its desire to rework the wells. Fox refused to permit Texaco to re-enter the land, padlocked the gate and advised Texaco he considered the lease on the west 80 acres terminated. Except for an exchange of correspondence in 1968 in which Fox asked to be considered a bidder if the lease were ever abandoned and a later comment by Fox on low production under the lease, Texaco had no notice from Fox he considered the lease terminated.
Fox and his wife own l/6th of l/8th royalty in and under the real estate in this suit. They made no inquiry about the lack of production on Section 33 nor did they ask Texaco about the history of its operating expenses on the lease or claim the lease was not producing in paying quantities prior to commencement of this action.
Texaco filed suit February 24, 1978. Additional owners of the mineral reservation (designated “royalty reservation” in the deed) joined Texaco as plaintiffs. The case was tried to the court on December 5 and 6, 1978. The trial court held for the defendants, terminating both the lease and the mineral reservation, and found the lease was not producing in commercial quantities and that Texaco had failed to reasonably develop the property subject to the oil and gas lease. After denial of post-trial motions this appeal followed.
Let us first determine whether there is any significance to the use of the term “commercial quantities” in the “thereafter” clause of the mineral reservation as distinguished from the usual term “paying quantities.” Neither term is used in the oil and gas lease; however, we have held that the habendum clause of a lease is dependent upon continuing production of oil or gas. In Kelwood Farms, Inc. v. Ritchie, 1 Kan. App. 2d 472, 476, 571 P.2d 338 (1977), the court considered a lease containing language similar to that in the present lease and stated:
“Although neither phrase [produced in commercial quantities or produced in paying quantities] is found in the oil and gas lease, we have no hesitancy in adding that all rights under that instrument terminate when production in paying quantities ceases.”
See also Brack v. McDowell, 182 Kan. 368, Syl. ¶ 2, 320 P.2d 1056 (1958); Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959).
The “thereafter” clause has the same meaning when used to create a separate estate or interest in oil and gas as when it is used in the habendum clause of an oil and gas lease. 1A Summers, Oil and Gas § 136 (rev. ed. 1954). See Kelwood Farms, Inc. v. Ritchie, 1 Kan. App. 2d 472; Wilson v. Holm, 164 Kan. 229, 188 P.2d 899 (1948). Having determined the habendum clause of an oil and gas lease and of a mineral reservation have the same meaning, we must determine whether the term “commercial quantity” is synonymous with the term “paying quantity.” We accept the definition of commercial quantity from Williams and Meyers, Manual of Oil and Gas Terms (1957), which states at 37:
“A quantity of oil, gas or other minerals sufficient for production in paying quantities.”
We hold the terms are synonymous.
The next issue is whether Texaco’s lease was producing in paying quantities, thereby perpetuating the lease and mineral reservation.
Before determining whether the lease was producing in paying quantities, we must deal with appellant’s contention regarding the accounting period. The trial court used Texaco’s annual accounting statements for a thirteen-year period and made a separate finding as to production for each year of the period. The court also added depreciation of equipment as a proper item of expense to determine the profitability of the well. Texaco argues the accounting period is too long and whatever the length, production in paying quantities should be determined from a cumulative review of the period, rather than a year by year comparison of profit and loss. Texaco also argues depreciation of equipment is not to be included. Although there is a general business custom of using fixed annual accounting periods for purposes of determining profit and for tax purposes, there is no reason production of oil and gas in paying quantities should be determined in that manner. We find the trial court erred in viewing each year individually rather than cumulatively. Regarding the thirteen-year period: it is generally accepted that profitability on an oil and gas lease should be determined over a relatively long period of time in order to expose the operation to the leveling influences of time. The arbitrary use of a short period of time while a well is down for a workover is obviously untenable. On the other hand, the use of an unreasonably long period would entail using past glories during flush production to determine a lease’s present condition, which would give a distorted result not reflective of the current status of the lease. The better rule precludes the use of a rigid fixed term for determination of profitability and uses a reasonable time, depending upon the circumstances of each case, taking into consideration sufficient time to reflect the current production status of the lease and thus to “provide the information which a prudent operator would take into account in whether to continue or to abandon the operation.” See 2 Kuntz, Oil and Gas § 26.7(u) (1964); Annot., 43 A.L.R.3d 60-62. We find the thirteen-year accounting period was an unreasonably long period of time. That finding is, however, irrelevant in light of our determination of the depreciation issue. In Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, Syl. ¶ 3, 553 P.2d 885 (1976), this court defined “paying quantities” as follows:
“It is generally accepted that the phrase ‘in paying quantities’ in the ‘thereafter’ provision (extension clause) of an oil and gas lease’s habendum clause means production of quantities of oil or gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs, or equipping costs, are never recovered, and even though the undertaking as a whole may thus result in a loss to the lessee.”
The court in Reese applied an “objective test” to determine production in paying quantities and we refer the reader to Reese Enterprises, Inc. v. Lawson, 220 Kan. at 313-315 for the court’s discussion of that test.
In this case, the key to determining whether the lease was producing in paying quantities is whether depreciation of equipment is a proper item of expense in determining the profitability of the well. The equipment in this case is the original equipment.
Our attention is directed to a recent decision of the Oklahoma Supreme Court in Stewart v. Amerada Hess Corp., 604 P.2d 854 (Okla. 1979), which held depreciation of equipment used in lifting operations should be included in determining whether there is production in “paying quantities.” The court expressed its reasoning as follows:
“The rationale for this rule is that while depreciation of the original investment in the drilling of a well may not be stricto sensu an out-of-pocket lifting expense, production-related equipment does have value that is being reduced through its continued operation.” p. 857.
We reject this rationale and find this question was directly answered in Reese where we stated all direct costs encountered are taken into account and the initial cost of drilling and equipping the well is not a part of those operating expenses. Our review of the profit and loss statements show that cumulatively viewing the entire thirteen-year period, if depreciation on equipment is not taken into account, the lease is producing in paying quantities and has been producing in paying quantities from its inception. Therefore, although the use of the thirteen-year accounting period was unreasonably long, the error is of no consequence, as any combination of years will show production in paying quantities.
Appellees have abandoned their allegation regarding breach of implied covenant to reasonably develop the lease and the issue is, therefore, not before this court.
Finally, appellees contend the royalties were either erroneously paid or improperly paid, constituting a breach of contract for which forfeiture of the lease is a proper remedy. This issue was neither plead nor proven. We therefore reject as erroneous that portion of the trial court’s finding which terminates the lease because of the improper payment and nonpayment of royalties.
The judgment of the trial court is reversed and the lease and mineral reservation are held to be in full force and effect. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a consolidated appeal of two cases arising from the recall of Thomas County Commissioner William J. Randall, plaintiff-appellant herein. The defendant-appellee is Rosalie Seemann, Thomas County Election Officer.
On December 17, 1979, the first set of recall petitions was filed with defendant. Two days later defendant determined the recall petitions were sufficient, formally advised plaintiff of her determination, and tentatively set the recall election for March 4, 1980. On January 3, 1980, plaintiff filed case number 80-C-l (subsequently appeal number 80-52018-A), challenging the scheduled recall election on various grounds. On January 11, 1980, while said action was pending, defendant, acting upon advice of the county attorney, redetermined the sufficiency of the recall petitions and found they were insufficient as they did not conform to the statutory requirements. In her answer to plaintiff’s petition, defendant, in essence, admitted the insufficiency of the recall petitions. On January 30, 1980, the trial court dismissed plaintiff’s action as moot. On March 10,1980, plaintiff’s motion to alter or amend the January 30 order to reflect a determination on the merits and to enjoin the March 4, 1980, recall election was denied.
Meanwhile, on January 21, 1980, a second set of recall petitions was filed with the defendant. On the following day defendant notified plaintiff that the new recall petitions had been determined to be legally sufficient and set the recall election on the new petitions for April 1, 1980. On February 19, 1980, plaintiff filed case number 80-C-31 (subsequently appeal number 80-52017-A), challenging the'April 1 recall election on various grounds. Thereafter, both parties filed motions seeking summary judgment on the petition and said motions were heard on March 10,1980. At the conclusion of the hearing the trial court sustained defendant’s motion for summary judgment and denied plaintiff’s motion for summary judgment. Thereafter, plaintiff duly perfected his appeals in both cases which were subsequently consolidated for briefing and hearing.
We shall first consider the issues in appeal number 80-52017-A, which arises from the second set of recall petitions. At the conclusion of the joint hearing of each party’s motion for summary judgment, the court found the recall petitions to be legally sufficient and entered summary judgment in favor of defendant.
The issues raised by plaintiff are outlined as follows:
I. Issues relative to the legal sufficiency of the second set of recall petitions.
A. Sufficiency of the grounds.
1. Whether in compliance with K.S.A. 1979 Supp. 25-4302.
2. Whether stated in sufficient particularity to comply with K.S.A. 1979 Supp. 25-4320(a).
B. Sufficiency as to number of registered voters signing the petitions.
C. Sufficiency as to whether plaintiff was “being subjected” to another recall election at the time of the filing of the petitions herein (K.S.A. 1979 Supp. 25-4326).
II. Issues relative to the propriety of the trial court’s conduct of the hearing.
A. Alleged error in taking judicial notice of defendant’s official records.
B. Alleged error in permitting defendant to testify.
III. Constitutional issues (raised in the alternative to other issues).
A. Violation of Article 4, Section 3, of the Kansas Constitution.
B. Violation of the due process clause of Section 18 of the Bill of Rights of the Kansas Constitution and of the Fourteenth Amendment to the United States Constitution.
Defendant contends:
1. The recall petitions are legally sufficient;
2. The trial court did not err in its findings, conclusions or conduct of the proceeding;
3. The recall procedure is constitutionally valid; and
4. K.S.A. 1979 Supp. 25-4302 legally moots any post-election appellate review as to the sufficiency of the recall petitions.
We shall first determine whether the issues relative to the sufficiency of the recall petitions are legally moot by virtue of K.S.A. 1979 Supp. 25-4302, which provides:
“Grounds for recall are conviction of a felony, misconduct in office, incompetence or failure to perform duties prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured. ” (Emphasis added.)
The emphasized portion of the statute is plain and unambiguous. In such circumstances the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Johnson v. McArthur, 226 Kan. 128, 596 P.2d 148 (1979); Thomas County Taxpayers Assn v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 557 P.2d 1286 (1976). In construing a statute, the language of which is plain, it is not the function of this court to search for reasons for its enactment. Holder v. Jochems, 167 Kan. 83, 204 P.2d 777 (1949).
The action herein was filed to prevent the recall election from being held. The election has been held and plaintiff has been recalled. Even if plaintiff’s contentions relative to the sufficiency of the recall petitions are meritorious, K.S.A. 1979 Supp. 25-4302 precludes the voiding of the election. In Burnett v. Doyen, 220 Kan. 400, 552 P.2d 928 (1976), this court stated:
“We have frequently said it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. (Diehn v. Penner, 169 Kan. 63, 216 P.2d 815; Bumm v. Colvin, 181 Kan. 630, 312 P.2d 827; and Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 494 P.2d 1092, cert. denied, 409 U.S. 944, 34 L.Ed.2d 215, 93 S.Ct. 270.) Here the plaintiff did not seek damages, but rather sought a declaratory judgment and a restraining order. Since this court could grant no further or additional relief under the facts and circumstances involved, the matter is moot.” (p. 403.)
Plaintiff anticipated and ably summarized the present posture of the case in his motion for injunction pending appeal when he stated:
“The following language of the Court in Masses Publishing Co. v. Patten, 245 F. 102, 103, quoted with approval in State ex rel. Phoenix Loan Co. v. Marsh, supra [139 Neb. 290, 297 N.W. 551 (1941)], at 133 A.L.R. 1103, is applicable here:
“ ‘Defendant’s situation, however, is quite different. The order appealed from if complied with, fulfills the whole object of suit. If reversed, no restitution or restoration of status quo is possible; and in my judgment the appeal becomes a futility, presenting to the appellate court nothing but an interesting moot point. . . . I . . . therefore strongly incline to the view that this is the rare instance in which an appeal without a stay is not only futile, but legally impossible; yet the statute gives the absolute right of appeal.’
“K.S.A. [1979 Supp.] 25-4302 provides in part:
“ ‘No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured.’
“Further, K.S.A. [1979 Supp.] 25-4330 reads as follows:
“ ‘If a majority of the votes cast on the question of recall favor the recall of the local officer, the county board of canvassers shall so determine and the county election officer shall so certify and the office shall be vacant on the day after the date of certification. A vacancy caused by a recall shall be filled as a vacancy caused by other means.’ (emphasis supplied.)
“Thus, once the recall election is held, Plaintiff can no longer prosecute his appeal, because under K.S.A. [1979 Supp.] 25-4302, the sufficiency of the recall petitions is then immune from attack. And, although Plaintiff has an absolute right of appeal under K.S.A. 60-2102, that appeal will become futile and moot, unless this Court enjoins Defendant from conducting the recall election pending this appeal.”
The Court of Appeals denied the injunction; the election was held; plaintiff was recalled; and plaintiff’s successor has been appointed and is now serving. We must conclude that all issues relative to the sufficiency of the recall petitions are legally moot by virtue of K.S.A. 1979 Supp. 25-4302.
We turn now to the issues relative to the propriety of the trial court’s conduct of the hearing herein. These issues are likewise legally moot as the election may not be voided even if this court were to conclude the trial court erred in the respects urged by plaintiff.
This brings us to the constitutional questions. Plaintiff states the issues and his position thereon as follows:
“Plaintiff’s argument on this point is alternative only. That is, if the Court construes K.S.A. [1979 Supp.] 25-4302 and K.S.A. [1979 Supp.] 25-4320 so as to uphold the stating of grounds for recall in such a vague and indefinite manner as in the recall petitions in question, then it is Plaintiff’s position that such statutes are unconstitutional. Obviously, if the Court adopts Plaintiff’s position that the recall petitions do not state grounds for recall as required by those statutes, then this constitutional argument does not apply.
“Assuming then, for purposes of argument only, that this Court determines that K.S.A. [1979 Supp.] 25-4302 and K.S.A. [1979 Supp.] 25-4320 permit and contemplate the filing of recall Petitions with a statement of grounds as vague and indefinite as in the present recall Petitions, the Legislature has not carried out the constitutional mandate of Article 4, Sec. 3 of the Kansas Constitution. That provision reads as follows:
“ ‘All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.’
“Thus, since the Kansas Constitution clearly requires that there be ‘grounds’ for recall, the Legislature must require the statement of the facts and circumstances constituting the grounds selected. This the Legislature has, Plaintiff contends, attempted to do by requiring each recall petition to contain the grounds for recall described in particular. (K.S.A. [1979 Supp.] 25-4320[a].) However, if the Court finds, for some reason, that the Legislature has not required a particular statement of the grounds for recall, then it follows that the Legislature has failed to meet the constitutional requirement of Article 4, Sec. 3.
“Further, it is Plaintiff’s position that if the statutes in question are construed to allow the filing of such vague and indefinite grounds for his recall, then such statutes deny him due process of law as guaranteed by the Fourteenth Amendment to the U. S. Constitution and by Sec. 18 of the Bill of Rights of the Kansas Constitution.”
Plaintiff states the constitutional questions are only applicable if this court has determined that the grounds stated in the recall petitions herein are statutorily sufficient. Inasmuch as this court has concluded all issues relative to the sufficiency of the recall petitions are moot, the constitutional questions are inapplicable.
We turn now to the issues raised in appeal number 80-52018-A which arise from the first set of recall petitions. The issues raised by plaintiff are:
1. Did defendant have the power to redetermine the sufficiency of the recall petitions?
2. Did the trial court err in denying plaintiff’s motion to alter or amend its order of dismissal?
As noted in the factual summary, defendant, while this action was pending, voluntarily redetermined the sufficiency of the recall petitions, held them to be insufficient, and canceled the then scheduled March 4 election. The trial court subsequently dismissed the action as moot. Plaintiff’s motion to alter or amend the dismissal order sought to convert the dismissal to a judgment on the merits of his petition. The action was brought to enjoin the March 4 election — the election was canceled. The action wholly accomplished its purpose. Why then does plaintiff challenge the technical form of his victory?
The answer to that question lies in the appeal herein determined. Defendant’s redetermination and election cancellation occurred prior to the filing of the second set of recall petitions. However, the dismissal order was entered after such filing. K.S.A. 1979 Supp. 25-4326 provides that one of the factors to be considered by the clerk in determining the sufficiency of a recall petition is whether the officer sought to be recalled “is being subjected to another recall election.”
If the sufficiency of the first petitions were to be determined by the court on their merits after the filing of the second set of recall petitions, then plaintiff would have been subject to “another recall election” at the time of their filing. This was one of plaintiff’s challenges to the second set of recall petitions. When viewed in its proper light, appeal number 80-52018-A is in merely a sidecar to appeal number 80-52017-A previously determined to be wholly moot.
Whereas the issues raised herein could easily be disposed of on their merits, it would be incongruous to determine the issues of this sidecar appeal when the appeal to which they are attached has been declared moot. Plaintiff is seeking by these appeals to void his recall and to be reinstated to the office of Thomas County Commissioner. No ruling by this court in this appeal could grant relief to plaintiff and we must conclude the appeal is moot. See Burnett v. Doyen, 220 Kan. 400.
The appeals are dismissed as moot. | [
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Per Curiam:
This is an original proceeding in discipline against the respondent, Kerry J. Granger, a member of the Kansas bar practicing in Reno County. The Kansas Board for Discipline of Attorneys recommended indefinite suspension from the practice of law. Respondent filed his exceptions to the report and recommendations of the board and the matter is here for determination by this court.
The recommendations of the board were based upon a single complaint filed against the respondent. The complaint arose from the attorney-client relationship between the respondent and the complainant, Jerry Eugene Coffman, and the representation of the complainant by respondent on two felony charges in the district court of Saline County. The complainant was charged with one count of aggravated battery and one count of aggravated assault. Complainant was tried and convicted on both counts on November 12, 1976, and was sentenced on November 29, 1976. The appeal bond was set at $17,000. The bond was posted by the complainant and he was released from custody on December 13, 1976. On April 11, 1977, the respondent filed a notice of appeal on behalf of the complainant. On April 16, 1977, the respondent received $500 from the complainant to purchase a transcript for use on the appeal.
Thereafter, the respondent took no action to perfect the appeal in compliance with the appellate rules of the Kansas Supreme Court. On September 29, 1977, the county attorney for Saline County filed a motion to dismiss the appeal in the trial court, requesting a hearing on the motion. On the following day, September 30, 1977, the respondent ordered a transcript of the trial proceeding from the reporter by telephone. The transcript was promptly prepared by the reporter and was filed in the district court on October 26, 1977. Respondent again failed to take action to perfect the complainant’s appeal. He did not file the appellant’s brief within the time allowed by the appellate rules. On March 17, 1978, the county attorney filed a second motion in the trial court to dismiss the complainant’s appeal and the motion was set to be heard on April 4, 1978. The respondent then filed a motion in the district court to withdraw from representing the complainant. On April 4, 1978, at the hearing on the motions, the district court found that there had been a whole and complete failure to prosecute the appeal as provided by law. The district court issued an order revoking the complainant’s appeal bond and the complainant was thereafter taken into custody and transported to Kansas State Penitentiary on April 7, 1978. The district court denied respondent’s request to withdraw as attorney for the complainant. By letter dated April 14, 1978, to the Kansas Supreme Court, the respondent requested that complainant’s appeal be docketed and the appeal was docketed by the Clerk of the Appellate Courts on April 18, 1978.
Thereafter, the respondent again failed to file appellant’s brief as required by the rules, and the county attorney filed another motion to dismiss the appeal. A copy of the motion was sent to the complainant Coffman who shortly thereafter filed his complaint with the office of the disciplinary administrator. The disciplinary administrator advised respondent of Coffman’s complaint. The respondent, by way of explanation of the delay in processing the appeal, stated that he had not received the money from Coffman for the transcript until the fall of 1977.
In response to the State’s motion to dismiss the appeal, the Court of Appeals requested respondent to answer the State’s motion to dismiss. In his response, the respondent stated that he had made a good faith effort to prepare the appeal. On June 28, 1978, the Court of Appeals sustained the State’s motion to dismiss the appeal. On July 6, 1978, respondent filed a motion in the Court of Appeals requesting that the complainant’s appeal be reinstated. In that motion, the respondent stated that the evidence in the trial court against his client Coffman was overwhelming, that out of sympathy for his client, the respondent had agreed to look into the appeal but had concluded that an appeal would be fruitless. On July 20, 1978, the Court of Appeals reinstated complainant’s appeal. On that same date, respondent filed the brief of appellant with the Clerk of the Appellate Courts. In a letter dated July 27, 1978, Coffman terminated the respondent’s services but, notwithstanding, respondent appeared and argued Coffman’s case before the Court of Appeals. On March 16, 1979, the conviction was affirmed by the Court of Appeals.
On the basis of this undisputed evidence the matter was submitted to and determined by the disciplinary hearing panel. The panel found that the respondent did seriously neglect a legal matter entrusted to him in violation of Canon 6 and DR 6-101 (A)(3). The panel further found that the respondent had accepted money from the complainant and did not promptly and properly use the same for its entrusted purpose. The panel found that the respondent was thereby guilty of misconduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Canon 1 and DR 1-102 (A)(4). The panel further found that the gross delay in this matter and the failure of the respondent to carry out his duties on the appeal constituted conduct which adversely reflected upon respondent’s fitness to practice law and was a violation of Canon 1 and DR 1-102 (A)(6) and a violation of Canon 7 and DR 7-101 (A)(2). The panel recommended that respondent be suspended indefinitely from the practice of law. The respondent then filed exceptions to the report, findings, and recommendations of the board, and the proceedings were docketed for hearing in this court.
The respondent raises three points: (1) The complaint filed against the respondent was not sufficiently clear and specific to inform the respondent of the alleged misconduct; (2) there was no credible evidence proving substantial misconduct on the part of the respondent; and (3) the actions of the respondent did not justify the imposition of discipline. At the beginning of the proceedings before the Kansas Board for Discipline of Attorneys, respondent filed a motion to dismiss the proceedings for the reason that the complaint was not specific enough to inform respondent of the exact nature of the charges against him. In our judgment, the complaint was sufficient, since it set out with particularity the basic factual situation out of which the charge arose. This is all that is required by our decision in State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974). In his letter to the disciplinary administrator, the complainant Coffman described with specificity the failure of the respondent to perfect his appeal and the fact that a motion to dismiss the appeal had been filed by the county attorney. Likewise, the formal complaint filed by the disciplinary administrator sufficiently advised the respondent that he was charged with neglect and delay in his handling of the complainant’s appeal in the appellate courts. From our examination of the letter of the complainant to the disciplinary administrator and the formal complaint filed, we find that the complaint was sufficient to advise the respondent as to the nature of the charge against him.
Turning now to a consideration of the evidence presented at the hearing, we have no hesitancy in holding that the evidence established professional misconduct on the part of the respondent in neglecting a legal matter entrusted to him in violation of Canon 6 and DR 6-101 (A)(3). It is obvious that respondent was honest in his belief that complainant did not have a meritorious appeal in his criminal case and apparently so advised his client. However, it is clear that the respondent agreed to undertake the appeal on Coffman’s behalf and initiated the appeal proceedings by filing a notice of appeal. Respondent received $500 from Coffman for the purchase of a transcript which respondent did not order until the expiration of seven months after the money was received. If the respondent did not wish to undertake the appeal, he should have refused employment, but he did not do so. Having undertaken to represent Coffman on the appeal, the respondent had a duty to prosecute the appeal in a professional manner by complying with the appellate rules and seeing that the appeal was properly presented and determined. The evidence in the case is undisputed and established by documentary evidence. The respondent simply did not carry out his professional obligation to process the appeal and, therefore, he was guilty of neglect of a legal matter. The respondent violated Canon 6 and DR 6-101 (A)(3) of the Code of Professional Responsibility.
Taking the record as a whole, however, we cannot find by clear and convincing evidence that the respondent, Granger, engaged in misconduct involving dishonesty, fraud, deceit, or misrepresentation. The evidence does not establish that the respondent misused the $500 which was delivered to him by the complainant to purchase a transcript; he simply delayed the use of the funds for that purpose. The transcript was ultimately obtained and paid for. We thus find no evidence to support the finding of the panel that respondent was guilty of misconduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Canon 1 and DR 1-102 (A)(4). We, likewise, cannot find that the respondent is unfit to practice law. The respondent felt strongly that his client did not have a basis to appeal his criminal conviction and he sb advised his client. Respondent’s mistake in judgment was in his undertaking to represent Coffman on the criminal appeal. He should have declined that representation and required Coffman to seek other counsel. However, once having undertaken the criminal appeal, it was respondent’s professional duty to handle the appeal with diligence and in a professional manner.
Under all the circumstances, we have concluded that discipline by way of public censure is more appropriate for the respondent’s misconduct than is indefinite suspension.
It is therefore by the court considered, ordered, and adjudged that Kerry J. Granger be and he is hereby censured by this court. The cost of this proceeding is taxed against the respondent and shall be paid forthwith. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal comes to this court on review of a decision of the Court of Appeals in Coe v. Security National Ins. Co., 5 Kan. App. 2d 176, 614 P.2d 455 (1980). It involves the statutory construction of the following provision of the Kansas Automobile Injury Reparations Act.
“(1) ‘Monthly earnings’ means: (1) In the case of a regularly employed person or a person regularly self-employed, one-twelfth (1/12) of the annual earnings at the time of injury; or (2) in the case of a person not regularly employed or self-employed, or of an unemployed person, one-twelfth (1/12) of the anticipated annual earnings from the time such person would reasonably have been expected to be regularly employed. In calculating the anticipated annual earnings of an unemployed person who has previously been employed, the insurer shall average the annual compensation of such person for not to exceed five (S) years preceding the year of injury or death, during which such person was employed.” K.S.A. 1979 Supp. 40-3103(1). Emphasis supplied.
The facts leading to this action are briefly these: Alice Coe died of injuries received in an automobile accident on December 29, 1975. At the time of the accident she was the owner and operator of the automobile insured by Security National Insurance Company. Her survivors were Laura A. and Rebecca S. Coe, minor children. Alice Coe was not employed at the time of her death but had planned to move to Wichita where she had a promise of employment. She had previously worked for the State of Kansas at the Larned State Hospital on a regular basis until January 31, 1973, when she resigned. Thereafter, she was employed intermittently at temporary work. Her income history is as follows:
Year Annual Income Employer
1970 $4,954.00 State of Kansas
1971 5,839.00 State of Kansas
1972 5,679.85 State of Kansas
1973 525.00 State of Kansas
1973 601.21 Temporary work
1974 400.00 Temporary work
1975 382.00 Tomnoron; titnrlr
The claim in this action is for “survivors’ benefits.” The definition of survivors’ benefits may be found in K.S.A. 1979 Supp. 40-3103(t/). Such benefits are to be equal to the amount lost from the injured person’s monthly earnings, up to a maximum of $650.00 per month, to be paid for not more than a year, less amounts in those months the injured person received disability benefits prior to death. This monthly allowance is paid to a decedent’s spouse or children under the age of eighteen years when death of the injured person resulted from such an injury. K.S.A. 1979 Supp. 40-3103(x).
Alice Coe was unemployed at the time of her death. A difference of opinion arose over the amount of survivors’ benefits due under K.S.A. 1979 Supp. 40-3103(1)- Under plaintiffs’ calculations, claim was made for $5,693.21. They arrived at this figure by adding the following annual earnings figures:
1970 — $4,954.00
1971— 5,839.00
1972— 5,679.85
1973— 6,300.00
These totaled $22,772.85 and when divided by four you have an average for these four years of $5,693.21, the amount for which claim was made. The $6,300.00 for 1973 was arrived at by projecting the pay from the state for January, 1973, of $525.00 for the whole year. Twelve times $525.00 comes to $6,300.00. The odd job amounts earned in 1973, 1974, and 1975 were ignored in making the calculation.
The insurance company, in arriving at survivors’ benefits, totaled the amounts actually earned by Alice Coe from temporary jobs and from the state for the years 1971 through 1975, arrived at a total of $13,427.12, divided this total by five, and came up with an average annual earnings of $2,685.41. This was the amount of the insurance company’s counteroffer.
The trial court, in arriving at survivors’ benefits, disregarded amounts earned by Alice Coe the yeár of her death (1975), added the annual earnings for the years 1970 through 1974, divided this total by five, and came up with an annual earnings figure of $3,599.60. Judgment was awarded for that amount plus interest at 18% per annum from March 19, 1977, plus costs. We will consider the allowance of interest later.
On appeal the Court of Appeals arrived at monthly earnings based on anticipated annual earnings as follows: (1) It excluded the annual earnings for the year of injury and death; (2) it counted the years during which the insured was regularly employed by the state for an entire year; (3) it annualized the monthly compensation for regular employment with the state for the year 1973 by multiplying $525.00 by twelve and arrived at a $6,300.00 annual earning figure for 1973; (4) it omitted all temporary or occasional employment; (5) added the totals for 1970 through 1973; and (6) divided this total by four.
Because of these varied interpretations regarding K.S.A. 1979 Supp. 40-3103(1), we granted review to settle the question of how to calculate the “anticipated annual earnings” of an unemployed person who has been previously employed. The statute is in two parts; the first refers to a regularly employed person, in which case you arrive at survivors’ benefits by merely taking one-twelfth of the person’s annual earnings at the time of the injury. The second part of this statute refers to the injured person who is unemployed when injured. Survivors’ benefits in the latter case are to be determined by arriving at a figure for anticipated annual earnings. Anticipated annual earnings are determined by averaging the annual compensation of such person for not to exceed five years preceding the year of injury or death, during which such person was employed.
If you consider and follow the plain words of this statute you determine annual earnings for not to exceed five years. The years averaged do not have to be five in number. They must be years that precede the year of injury or death. In this case the year 1975 is dropped from consideration. The years must be years in which such person was employed. Any year in which the person had no income should be omitted from consideration. This second part of the statute, referring to an unemployed person, does not mention regular employment or regular earnings; it refers to annual compensation for not to exceed five years during which such person was employed. To arrive at anticipated annual earnings under K.S.A. 1979 Supp. 40-3103(1) a person should (1) drop the year of injury and death from consideration; (2) exclude any of the five preceding years in which the decedent was not employed and had no income; (3) arrive at the total of whatever annual compensation was earned during the remaining years, whether earned during a full or partial year or whether received from regular or temporary work, or both; (4) divide this total by the number of those years in which the decedent had some income; and (5) thereby arrive at average anticipated earnings.
In the present case Alice Coe had annual compensation each year from 1970 to and including 1975. The year of death, 1975, should be excluded from consideration. The annual compensation earned in the five, preceding years were;
1970 — $4,954.00
1971— 5,839.00
1972— 5,679.85
1973— 1,126.21
1974— 400.00
By adding these five items of annual compensation and dividing by five you arrive at the average annual earnings figure which was adopted by the trial court, and which we believe comports with the intent of the legislature as gleaned from the words of this statute.
It'appears that if the determination of anticipated annual earnings is made dependent upon past regular employment there will be uncertainty in the meaning of regular employment. Some workers hold two different jobs and work 40 hours a week at each job. Another worker has one 40 hour a week job and works at additional temporary employment. In such cases which is the regular employment? Additional uncertainty would result from “annualizing” compensation from so-called regular employment for years in which an insured is regularly employed for less than a full year. The Court of Appeals annualized the income received from the state for 1973 by multiplying the January earnings of $525.00 times twelve. If this method is approved the difficulties of determining anticipated annual earnings will be compounded by having to annualize income every year in which the insured was not employed for a full twelve month period. Nowhere in the statute do we find authority to annualize earnings in those years a person is employed for a partial year only. Neither do we find any authority for omitting amounts earned from occasional or temporary employment. The statute speaks of averaging annual compensation.
The legislative history of this act is not helpful. Three no-fault insurance proposals were submitted to the legislature. One was submitted by the Special Committee on Motor Vehicle Accident Reparations. Another bill was submitted by the insurance commissioner of the state, and the third was submitted by an individual legislator. Only the bill submitted by the insurance commissioner had this provision for “survivors’ benefits” in it in the present form. The minutes of the insurance committee meetings indicate that this bill is a modification of the Colorado statute and of the Uniform Motor Vehicle Accident Reparations Act, but neither of those acts has this provision in them. No other state statute has been cited by the parties and we have found none containing this particular provision relating to “monthly earnings.” So, we are left to our own construction.
The purpose of the act is set forth in K.S.A. 1979 Supp. 40-3102 as follows:
“The purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.”
It is apparent that prompt payment of benefits was an overriding concern of the legislature. Personal injury protection benefits payable under the act become
“[Ojverdue if not paid within thirty (30) days after the insurer ... is furnished written notice of the fact of a covered loss and of the amount of the same. . . . [N]o such payment shall be deemed overdue where the insurer . . . has reasonable proof to establish that it is not responsible for the payment. . . . All overdue payments shall bear simple interest at the rate of eighteen percent (18%) per annum.” K.S.A. 1979 Supp. 40-3110(fc).
In order for the insurer and the survivors to agree and the payment to be made within thirty days as contemplated by the statute, the formula for determining “monthly earnings” must be easy to apply to facts readily available to the parties. It cannot wait for resolution by court action. Income tax reports would be available in practically all cases and would establish the amounts of annual wages or earnings. The above formula should be easily applied. It is simple, meets the statutory language, and, although factual situations can be conjured up which may result in inequity, it seems as fair to all concerned as can be gleaned from the directions of the statutory language employed by the legislature.
A court faced with the problem of construction of a statute has as its function the interpretation of the statute and should not rewrite legislation. Dougan, Administratrix v. McGrew, 187 Kan. 410, 415, 357 P.2d 319 (1960). A court has no right to enlarge the scope of the statute or to amend it by judicial interpretation. Schroder v. Kansas State Highway Commission, 199 Kan. 175, 182, 428 P.2d 814 (1967). A statute should never be given construction that leads to uncertainty, injustice or confusion, if possible to construe it otherwise. Whitehead v. State of Kansas Labor Department, 203 Kan. 159, 162, 453 P.2d 11 (1969). In construing a statute, words and phrases should be construed according to context and the approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Hessell v. Lateral Sewer District, 202 Kan. 499, 502, 449 P.2d 496 (1969).
The second issue raised concerns the allowance of interest by the trial court and Court of Appeals.
The trial court awarded interest at 18% per annum from March 19, 1977, to date of judgment based on the following statute:
“(b) Personal injury protection benefits payable under this act shall be overdue if not paid within thirty (30) days after the insurer or self-insurer is furnished written notice of the fact of a covered loss and of the amount of same, except that disability benefits payable under this act shall be paid not less than every two (2) weeks after such nojtice. If such written notice is not furnished as to the entire claim, any partial amounts supported by written notice is overdue if not paid within thirty (30) days after such written notice is furnished. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within thirty (30) days after such written notice is so furnished: Provided, That no such payment shall be deemed overdue where the insurer or self-insurer has reasonable proof to establish that it is not responsible for the payment, notwithstanding that written notice has been furnished. For the purpose of calculating the extent to which any personal injury protection benefits are overdue, payment shall be treated as being made on the date a draft pr other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed postpaid envelope, or, if not so posted, on the date of delivery. All overdue payments shall bear simple interest at the rate of eighteen percent (18%) per annum.” K.S.A. 1979 Supp. 40-3110. Emphasis supplied.
Plaintiffs argue the trial court and the Court of Appeals were correct because the insurance company failed to pay any part of the survivors’ benefits.
The defendant argues:
“The record establishes that the plaintiffs demanded the sum of $5,613.70 in survivors’ benefits. The insurer had reasonable proof that it did not owe that sum; indeed, the district court found the plaintiffs’ computation of that sum in error. The insurer offered to pay the amount of survivors’ benefits that it believes was the correct amount pursuant to the provisions of the Kansas Automobile Injury Reparations Act. The insurer never refused to make any payments. The insurer paid over $9,000 in other types of benefits to the plaintiffs; the insurer stood ready to pay the $2,685.41 to the plaintiffs but the plaintiffs refused to accept the payment. After the lawsuit was filed, the insurer confessed judgment in the amount of $2,685.41 and paid that sum into court.”
Defendant insurance company insists the interest section of the statute is only meant to apply as a penalty when the insurance company refuses to pay without good cause. Defendant contends it made all payments on which there was no question and the refusal to pay was only on that portion of survivors’ benefits about which there was a reasonable doubt. We agree.
When there is a good faith controversy as to the amount of survivors’ benefits due under K.S.A. 1979 Supp. 40-3103(0 an insurer should not be penalized by applying the eighteen percent (18%) interest provision contained in K.S.A. 1979 Supp. 40-3110. In the present case the parties, the trial court, and the Court of Appeals construed the provisions of the statute on monthly earnings and arrived at different amounts. A good faith controversy did exist. The insurer did pay all other benefits within the required time. Therefore no interest should have been assessed for any period prior to the date of the judgment.
The final issue raised on appeal concerns failure to award attorney fees.
The pertinent statute is K.S.A. 1979 Supp. 40-3111(6):
“An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal injury protection benefits which are overdue. The attorney’s fee shall be a charge against the insurer or self-insurer in addition to the benefits recovered, if the court finds that the insurer or self-insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
In Watson v. Jones, 227 Kan. 862, 871, 610 P.2d 619 (1980), we said:
“Whether the refusal of an insurance company to pay is without just cause or excuse under this statute is to be determined on the facts and circumstances of each case. The circumstances confronting the insurer when payment of loss is denied determines the question, and the circumstances are to be judged as they would appear to a reasonably prudent man having a duty to investigate in good faith and to determine the true facts of the controversy. Brown v. Continental Casualty Co., 209 Kan. 632, 498 P.2d 26 (1972). Whether there was just cause to refuse payment and therefore justification for denial of attorney’s fees is in the trial court’s sound discretion. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974).”
The statute under consideration in Watson was K.S.A. 40-256. In Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978), the Court of Appeals pointed out that K.S.A. 1979 Supp. 40-3111(6) and K.S.A. 40-256 contained similar language, and case law construing 40-256 could be used to construe 40-3111(6). 2 Kan. App. 2d at 261.
K.S.A. 1979 Supp. 40-3111(6) provides that an attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal injury protection benefits which are overdue. Under K.S.A. 1979 Supp. 40-3110 no benefits shall be deemed overdue where the insurer or self-insurer has reasonable proof to establish that it is not responsible for payment of those particular benefits, or when in the sound discretion of the trial court the circumstances confronting the insurer when the claim for benefits was denied furnished just cause or excuse for refusal to pay such claim. Such was the present case and no attorney fees should have been awarded.
Accordingly the judgment of the district court is affirmed as to the amount due for survivors’ benefits and as to the disallowance of attorney fees;' it is reversed on the allowance of interest. The judgment of the Court of Appeals is reversed as to the amount due for survivors’ benefits and as to the allowance of interest; it is affirmed as to the disallowance of attorney fees. | [
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The opinion of the court was delivered by
Fromme, J.:
All parties to this appeal, including amicus curiae, have filed motions for modification. Plaintiff-appellee requests this court to affirm the judgment of the trial court. Defendant-appellant and amicus curiae urge modification and clarification of the original opinion. After considering these motions we find a change in the effective date of K.A.R. 30-10-12 from May 1, 1978, as it appears in the original opinion, to December 30, 1977 is necessary. This is the regulation which first omitted the limitation placed on payments to be made to nursing homes to funds which were made available or appropriated by the legislature. In order to understand why this change of date is necessary certain facts must be. disclosed.
The Kansas statutes authorizing agencies to adopt rules and regulations recognize two kinds of regulations, temporary regulations (K.S.A. 77-422) and permanent regulations (K.S.A. 77-426). Under K.S.A. 77-422:
“A temporary rule and regulation shall take effect, subject to subsequent action or enactment by the legislature, after approval by the secretary of administration and the attorney general, as provided by K.S.A. 77-420, and amendments thereto, upon filing with the revisor of statutes or upon a later date specified in the rule and regulation. A temporary rule and regulation filed after October 1, 1976, and on or before December 31, 1977, shall not be effective after April 30, 1978. . . .”
Under K.S.A. 77-426 a new permanent regulation when filed with the revisor of statutes on or before December 31 of any year “shall become effective on and after May 1 of the succeeding year.” No rules and regulations may be filed “after December 31 or prior to May 1 in any year, except temporary rules and regulations.”
The agency in this case filed a new permanent regulation K.A.R. 30-10-12 on December 29, 1977. This was before the December 31st deadline and under K.S.A. 77-426 it did not become effective until May 1, 1978. However, the agency also filed a temporary regulation, identical in substance, on December 30, 1977. Under the provisions of K.S.A. 77-422, above quoted, this regulation became effective when filed with the revisor of statutes December 30, 1977, and remained in effect until May 1, 1978, when the permanent regulation became effective. The provisions of K.S.A. 77-426, which fixes May 1 of the year succeeding the filing of the regulation as the effective date of a permanent regulation, specifically excepts from the operation of the statute temporary regulations. Thus, K.A.R. 30-10-12 first became effective as a temporary regulation on December 30, 1977, after approval by the attorney general and the department of administration, and at the time it was filed with the revisor of statutes. R remained in effect until the permanent regulation became effective May 1, 1978.
Therefore, the objectionable features of the agency’s prior regulations concerning nursing homes, which limited the amount of payments to those funds which might be available and appropriated by the legislature, were removed by the adoption of the temporary regulation effective December 30, 1977, instead of May 1, 1978, as stated in the original opinion. Accordingly, it is held that the date May 1, 1978, in syllabus ¶ 8, should be and is hereby changed to December 30,1977, and a similar correction of date from May 1, 1978, to December 30, 1977, is ordered throughout the body of the original opinion, including the last two paragraphs.
In addition to the above corrections, two matters of clarification appear necessary after considering the motions for modification filed by amicus curiae and defendant-appellant. The first relates to regulations for the period from July 1, 1971, to July 28, 1972, and to the basis upon which it was held the administrative action taken by the agency was without proper legal authority. During this period of time the agency adopted and had in effect three different regulations affecting payments for care in nursing homes. The first, K.A.R. 30-5-27, was filed October 1, 1970, and became effective January 1, 1971. It specified that the payments be made for reasonable, usual and customary charges. The second was a temporary regulation effective October 1, 1971, which called for payment of reasonable charges. The third was a permanent regulation filed October 1, 1971, which became effective January 1, 1972, and called for payment of reasonable charges.
In addition, these three different regulations each provided that payment levels for care should be based on the nursing homes’ “cost plus a reasonable profit,” and payments were to be determined by cost and other data submitted by the nursing homes. The federal requirements under the Social Security Act, both before and after July 1, 1976, talked of payments to be fixed with some reference to costs of the services furnished by the nursing homes. Prior to July 1, 1976, the federal Department of HEW had provided that payment rates not exceed rates determined using medicare principles of reimbursement for Title XVIII services. 45 C.F.R. 250.30(b)(3)(ii) and (iii) (1971-72-73). In setting Title XIX payments to providers, the rates were to be the lesser of reasonable cost or customary charges, which was the basis for reimbursement for Title XVIII services. Both federal and state regulations during the period spoke of “costs” as a basis for arriving at either reasonable charges or reasonable, usual and customary charges.
In the original opinion and here we see no conflict or invalidity by reason of the wording of the state and federal statutes or regulations for the period from July 1,1971, to July 28,1972. The Department of Social and Rehabilitation Services of the State of Kansas simply failed to comply with the existing federal and state regulations. The agency provided no schedule for reimbursements based on or tied to the cost of nursing home services furnished to Title XIX patients. We continue to hold the failure of the state agency to implement the state and federal requirements by administrative action, so as to provide some reasonable cost-related method to determine reasonable rates for reimbursement of nursing homes during this period rendered the regulations and the administrative action taken to be without legal authority. During this period the statutes in effect required payment of reasonable charges. Statements as to reasonable, usual and customary charges to the contrary in the original opinion should be disregarded.
The second matter of clarification concerns references in the original opinion to Social Security Act § 1902(a)(13)(E) and 42 U.S.C.A. § 1396a(a)(13)(E). It has been pointed out that paragraphs (13)(E) were limited provisions of the acts which did not become effective until July 1, 1976. However, the other provisions of this act and its predecessor were in effect during the period in question, July 28, 1972, to December 30, 1977. Such references to the Social Security Act in the opinion should be generalized to read Social Security Act § 1902 and 42 U.S.C.A. § 1396a et seq. The more specific references are not necessary to support the decision. The invalidity of the state regulations for this period arose by reason of the provision in the state regulations which limited the amount of nursing home payments under Title XIX to amounts which might be appropriated and made available under state law. The invalidity was not by reason of any specific conflicting provision in the federal Social Security Act.
Accordingly, we decline to grant a rehearing; the original opinion of the court is clarified and modified as set forth herein. We adhere to the original opinion except as herein modified. | [
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Per Curiam:
This is an original action filed by the Disciplinary Administrator against Wesley M. Smith, an attorney admitted to the practice of law in the State of Kansas. Complaints filed with the Disciplinary Administrator on behalf of Diane Jackson and Thomas C. Fatino were considered by a panel of the Board for Discipline of Attorneys. The panel found that the respondent, Wesley M. Smith, had been guilty of violations of the Code of Professional Responsibility in his handling of legal matters for Ms. Jackson and Mr. Fatino and recommended that the respondent be disciplined by public censure by this court. The respondent timely filed exceptions to the report of the disciplinary panel. We will briefly summarize the facts and findings in each complaint.
In the fall of 1975, Diane Jackson was a temporary employee of the United States Postal Service in Kansas City, Kansas. In October of that year she sustained an injury while so employed and consulted respondent about filing a claim with the Bureau of Worker’s Compensation of the United States Department of Labor. Respondent was retained by Ms. Jackson in October or November of 1975. In the spring of 1976, respondent obtained a medical report from Ms. Jackson’s doctor and in October, 1976, directed a letter to the Kansas City post office notifying them of the possible claim. The postal officials replied and advised respondent where to file the claim. It was not until December, 1977, that respondent finally contacted the federal worker’s compensation office. Correspondence with that office continued through the spring of 1978. Ms. Jackson testified that she attempted to contact Smith on numerous occasions but was unsuccessful. She left messages for him to contact her but he failed to do so. In November, 1978, she consulted another attorney and then discharged the respondent and requested that he return all papers, medical reports, etc., to her. She did not receive the papers and subsequently filed a complaint with the Disciplinary Administrator. Her papers and records were finally delivered to her during the hearing before the panel of the Disciplinary Board. The panel found that respondent had violated DR 6-101(A)(l), (2) and (3) (225 Kan. civ), and DR 2-110(B)(3) and (4) (225 Kan. c) of the Code of Professional Responsibility. We agree.
In 1977, Thomas C. Fatino was having difficulty with Van Chevrolet Company over a used motor coach that he had purchased from the company. He eventually retained Smith, his regular attorney, to file suit against Van Chevrolet. Fatino paid Smith a $300.00 retainer on July 29, 1977. Smith did not follow through and in 1978, Van Chevrolet sued Fatino on his purchase contract. The panel found that respondent neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (225 Kan. civ), and we agree.
Having carefully considered the record herein, we find that the respondent has violated the Code of Professional Responsibility as determined by the hearing panel of the Board of Discipline for Attorneys and that the recommendations of such panel that Wesley M. Smith be disciplined by public censure should be accepted and approved by the court.
It is Therefore by the Court Ordered that Wesley M. Smith be and he is hereby disciplined by this court by public censure and he is hereby ordered to pay forthwith the costs of this proceeding.
It is Further Ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court this 18th day of July, 1980. | [
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Per Curiam:
We have carefully reviewed the record and the issue raised in this case, and we conclude that the decisions of the trial court and of the Court of Appeals were legally and factually correct.
We adopt the opinion of the Court of Appeals, Barncord v. Kansas Dept. of Transportation, 4 Kan. App. 2d 368, 606 P.2d 501 (1980).
The judgments of the Shawnee District Court and the Court of Appeals are affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Albert Dale Williams was convicted by a jury in Riley County district court of first degree murder under the felony-murder rule, K.S.A. 21-3401, and was sentenced to life imprisonment. He brings a direct appeal to this court. The primary issue presented is whether the trial court erred in failing to conduct a second inquiry as to the defendant’s competence to waive his constitutional right to the assistance of counsel, following certain conduct of the defendant outside of the courtroom after the first day of trial.
Pamela Parker was employed as a receptionist in the Chamber of Commerce office at Manhattan. That office was also the local office of the Western Union Telegraph Company and Mrs. Parker was authorized to handle Western Union business and to sign Western Union money orders. One of her duties was to remain in the office during the noon hour.
On January 31, 1978, other employees of the Chamber of Commerce found Mrs. Parker’s body in a back room when they returned from lunch. She had been stabbed five times. A number of Western Union money orders were missing. Police found a knife at the scene and located heel impressions in the victim’s blood on the floor of the office. The knife and the heel impressions were linked to the defendant. Williams cashed a $1000 stolen money order — signed by Pamela Parker — at the First National Bank in Manhattan on the same day. Williams was traced to Topeka where he was arrested on February 1, 1978 for a murder in Shawnee County. After trial there, he was returned to Riley County for trial on the charge of the murder of Mrs. Parker in the perpetration of aggravated robbery.
Williams first appeared in Riley County district court on this charge on June 26, 1979. Howard Fick, a practicing attorney of Manhattan, was appointed to represent him. Later, when the matter came on for preliminary hearing, Williams asked that he be permitted to represent himself. After inquiry by the judge, the motion was sustained and Williams was permitted to act as his own counsel during the hearing. Mr. Fick was present, sat at counsel table with the defendant, and was available should the defendant have decided that he wanted counsel.
Williams next appeared for arraignment before Judge Mershon on August 6, 1979. Mr. Fick was present. Williams stated that he wanted to represent himself. The judge then made extensive and comprehensive inquiries of the defendant, covering some 20 pages of the record, before accepting his waiver of counsel. Among the many things covered during this discourse are the following: Defendant understands the charge against him and the penalty for that offense; he understands that he has an absolute right to counsel, either retained or appointed; he is 24 years of age, and attended school to the 12th grade. He represented himself throughout the proceedings in Shawnee County, and he was convicted and sentenced there; he did have appointed “advisory” counsel. He had a mental evaluation in Shawnee County where he was found competent to stand trial and to represent himself. He is in good health and has never been treated by a psychiatrist or mental health professional. He is familiar with trial procedure, knows that objections may be lost or waived if not made contemporaneously, and understands the jury selection process. He has had no formal legal training. During this exchange, the judge said:
“Now, Mr. Williams, speaking in all frankness I do not feel that it would be to your best interests to not have an attorney ....
“. . . In my opinion I think you’re making a grave and serious mistake.”
The judge pointed out the ABA standard indicating that counsel for the accused is an essential component of the administration of criminal justice. He also pointed out many pitfalls for the untrained, and many advantages experienced counsel would provide. Williams, however, persisted and insisted that he be permitted to represent himself. The judge then made these findings:
“THE COURT: All right. After going over those things very carefully with you, Mr. Williams, which the Court felt was necessary, the Court after complete inquiry and after observing you, it does appear to me that you seem to be alert, that you do seem to understand your surroundings, that your answers to my questions have been lucid and reasonable ones, and you have persistently stated you do not wish to have a lawyer.
“THE DEFENDANT: Do not.
“THE COURT: Therefore, the Court will enter the following findings in this instance, that you have been clearly advised of your rights to assistance of counsel including your right to the assignment of counsel; the Court further finds that you are possessed of sufficient mental capacity, age, education and experience to enter an intelligent waiver to the right to the assistance of counsel. The Court further finds that you have had explained to you the nature and complexity and seriousness of the case including the risks and penalties involved and I believe you understand that.
“THE DEFENDANT: I do.
“THE COURT: The Court further finds that you possess the intelligence to appreciate the risks and costs and consequences of the decision, therefore the Court further finds that the defendant in this case, Albert Dale Williams, has entered his voluntary and intelligent waiver of the assistance of counsel and the Court accepts the defendant’s waiver.”
The judge appointed Mr. Fick as a “standby” attorney for the defendant and directed him to be present at all hearings on motions and during the entire trial, counsel to sit with defendant at counsel table and to stand ready to assist the defendant at any time upon request. The judge directed the officers to remove defendant’s shackles and handcuffs outside the presence of the jury and to take other measures for security so that the jury would not be prejudiced. He gave orders that defendant have access to statutes and law books, and he provided an avenue for the transmission of the defendant’s motions to the clerk.
After the first day of trial, and as defendant was being escorted from the courthouse, he broke away and battered through a glass door with his head. He was knocked unconscious and sustained a severe laceration to his right little finger. He was taken to the hospital where 11 stitches were required to close the wound. The following morning, before coming into the courtroom, he asked to be taken to a restroom. After washing his hands, he battered the window with his head, breaking the window and cutting his head. Officers removed him from the window and again took him to the hospital where his wounds were stitched and treated. Outside of the courtroom he was unruly and profane, kicked the officers, and had to be strapped to the gurney while being transported to and from the hospital.
Following these occurrences, and on the second morning of trial, a hearing was held out of the presence of the jury. The State moved for an order requiring that the defendant be shackled during the remainder of the trial. The court heard a number of witnesses who described defendant’s actions since the court recessed on the previous day. The witnesses described defendant’s behavior, his hostility towards the prosecutor and the officers, and his statement that “as soon as the handcuffs come off him that it was all over with.” Generally, the witnesses thought the defendant to be a danger to himself and others, and recommended that he remain in chains — leg irons, waist chain, handcuffs — in the courtroom. The defendant was described as lucid and competent but destructive and dangerous. One witness testified that as Williams was being placed in handcuffs for the trip to court that morning, he said, “They better leave all this . . . on me or I’m gonna’ get somebody.” He had previously threatened the prosecuting attorney. Defendant’s sister and a close friend were present throughout this hearing. The judge heard from the sister, the defendant, and the State’s witnesses. He expressed extreme reluctance to order the defendant chained during trial, but in view of the defendant’s attempts to flee, concluded that the handcuffs and waist chain should be removed but the leg irons should remain.
The defendant objected to any restraints. He said:
“I don’t even want to go in there. I’ll be just like I am right now. I’ll jump up on that table and tell ’em I’m taking a fucking. I know I’m taking a fucking. You take these handcuffs off me, I’ll do worse in there. I’m not playing. . . ' . I mean this. . . .
“. . . I’m telling you if I go in there I will be very disruptive and I mean that.”
The judge then ruled that under the circumstances he had no alternative but to order all restraints — leg irons, waist chain, handcuffs — left on the defendant. Trial proceeded with the defendant so restrained. After one witness testified, a noon recess was taken on the second day of trial. When court reconvened, the judge offered to order the handcuffs removed if the defendant would “behave.” Defendant replied twice: “Leave ’em on.” Defendant made similar responses later in the afternoon. On the following morning, defendant said that he would like to have the cuffs off, and the court ordered the cuffs and chain removed. After noon on the third day of trial, defendant stated that he was withdrawing his request to appear as counsel, and he asked that Mr. Fick take over as trial counsel from that point on. Mr. Fick, who had been present throughout the proceedings, then assumed the defense, conferred with the defendant, examined the remaining witnesses, reviewed the proposed instructions and made objections and suggestions in connection with them, and made the closing argument on behalf of the defense. A careful review of the record discloses that while the defendant was sometimes profane, insulting, and obstreperous at hearings in chambers, he limited such conduct to chambers and conducted himself at all times with propriety and decorum in the presence of the jury.
Defendant argues that it was error for the trial court to fail to inquire into his competence to waive the assistance of counsel in the light of his behavior on the first night and the second morning of trial. He does not challenge the court’s original finding of knowing and intelligent waiver of counsel; instead, he contends that when the court became aware of defendant’s bizarre out-of-court conduct, the court should have conducted a second hearing and made a determination at that time of defendant’s continued mental competence to continue his waiver of counsel.
As we have pointed out above, the trial court made a very thoughtful and careful record before allowing defendant to represent himself in the first instance. At the close of that hearing, the court found that the defendant was alert, aware of his surroundings, was lucid and reasonable, was possessed of sufficient mental capacity, age, education and experience to enter an intelligent waiver, and that the defendant had the intelligence to appreciate the risks and consequences of his decision. After the defendant had broken the glass door and window (which conduct is characterized by the State as escape attempts and by the defendant as suicide attempts), the trial court did conduct a lengthy hearing on the State’s motion to require defendant to be shackled. The trial judge questioned four of the witnesses who had had an opportunity to observe the defendant as to his mental state; all four responded in substance that the defendant was alert and not mentally ill; that he understood what was going on; and that he was lucid and competent to proceed with trial. The judge also questioned the defendant personally before resuming the trial.
An accused has a constitutional right to represent himself. This was recognized in Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975), and in State v. Williams, 226 Kan. 82, 595 P.2d 1104 (1979). The accused should be made “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” If an accused is to forego the assistance of counsel, he must do so “knowingly and intelligently.” Faretta, 422 U.S. at 835. In State v. Daniels, 2 Kan. App. 2d 603, 586 P.2d 50 (1978), the Court of Appeals treated the matters of waiver of counsel and self-representation fully and set forth guidelines for the trial courts; these were carefully followed by the trial court here.
In 1966, the United States Supreme Court suggested, in Westbrook v. Arizona, 384 U.S. 150, 16 L.Ed.2d 429, 86 S.Ct. 1320 (1966), that competency to stand trial and competency to intelligently waive counsel involve different legal standards. The implications of Westbrook were discussed by the California Court of Appeals as follows:
“Commentators have interpreted Westbrook to mean that while a defendant may be competent to stand trial, he may not be competent to waive counsel (Silten & Tullis, Mental Competency in Criminal Proceedings (1977) 28 Hastings L.J. 1053, 1066). From this they derive the formula that ‘a defendant must be free of mental disorder which would so impair his free will that his decision to waive counsel would not be voluntary’ (id. at p. 1067).” Curry c. Superior Court, 75 Cal. App. 3d 221, 227, 141 Cal. Rptr. 884 (1977).
The court went on to hold, however, that the determination of whether there is an intelligent and competent waiver, an intentional relinquishment of a known right or privilege, is met “if the trial court makes the factual determination that the defendant is free of such a mental disorder and indicates, on the record, that he is aware of the consequences of his request.” Curry, 75 Cal. App. 3d at 227. In the case before us, there is no question but that the trial court made that determination before permitting Williams to waive counsel and undertake self-representation. Although the judge did not expressly say “free of mental disorder,” he impliedly found the defendant to be free of such disorder when he found him “alert” and possessed of “sufficient mental capacity” and “intelligence.”
Once an initial determination is properly made that the defendant is competent to waive counsel, must additional determinations be made that such competency continues? Where, as here, the accused’s conduct outside of the judge’s presence is erratic, and such conduct is brought to the attention of the court, is the court required to hold a further hearing and make specific findings as to continued competency? We conclude that a specific hearing for that announced purpose is not required. The trial judge, in the first instance, must make a determination as to the accused’s competence to waive the assistance of counsel. The judge must thereafter continually observe the defendant, and if he determines that the defendant’s mental condition has deteriorated so that he is no longer mentally competent to waive counsel or conduct his defense, then the judge is obligated to take such action as may be required to insure a fair trial. The matter, however, is one vested in the sound discretion of the trial judge. Here the record shows that the trial judge fully understood his responsibilities. He closely monitored the defendant; he inquired at length of witnesses as to defendant’s state of mind; he talked at length with the defendant before proceeding with trial; he exhibited continuing concern as to the defendant’s mental condition.
Once a trial court makes a determination that a defendant is competent either to waive counsel or to stand trial or both, the court is under a continuing responsibility to observe whether that competency continues. It is impossible, however, to draw up a standard as to when a court must make a further inquiry or hold a further hearing or make a further determination on the record as to the defendant’s continued competency, and we will not attempt to do so. In the absence of a specific finding to the contrary, we will presume that a trial court finds competency to be continuous throughout trial, and deems further hearing on the issue unnecessary. Circumstances vary greatly from case to case. Whether a further hearing is needed is a matter which must be left to the sound discretion of the trial court, and each case must be viewed in the light of the facts at hand. Based upon a careful review of this record, we find no abuse of discretion here; obviously, the trial court found that this defendant continued to be lucid and competent, and the record fully supports that finding; no further hearing was necessary. We have carefully reviewed the authorities relied upon by the defendant but do not find them persuasive. We find no error.
Defendant contends also that it was error for the trial court to order him to be shackled during trial, arguing that if shackles had to be used, then it was clear that he was not competent to proceed with trial.
Generally, “the rule is that freedom from handcuffs during the trial of a criminal case is an important component of a fair and impartial trial.” State v. Yurk, 203 Kan. 629, 631, 456 P.2d 11 (1969). Freedom from shackles during trial is the norm and a defendant in a criminal case should not be tried while in handcuffs, leg irons, or other shackles except in unusual, compelling, and exceptional circumstances. Where shackles or physical restraints are employed, the record should clearly reflect the reason why restraints are ordered. Ordinarily, if the record does not show disruption of trial or other obvious reasons, the trial court should hold a hearing, preserve the evidence by means of the record, and state the reasons for ordering the restraint. See State v. Stewart, 276 N.W.2d 51 (Minn. 1979); People v. Duran, 16 Cal. 3d 282, 127 Cal. Rptr. 618, 545 P.2d 1322 (1976); and Annot., 90 A.L.R.3d 17, § 11. When exceptional circumstances are present and the trial judge has substantial reason to believe that the defendant, if not physically restrained, will harm himself or others in attendance at trial, or will be so disruptive as to prevent the trial from proceeding, the judge in his discretion may order the minimum restraints necessary. We emphasize that circumstances justifying the use of shackles, handcuffs or other physical restraints on the defendant during trial are extremely rare. Trial courts should order restraints only when it becomes apparent that other means will not be effective.
The trial judge in the case at hand made a careful record of the proceedings. He expressed reluctance to impose restraints, and ordered only the least restrictive restraints required. He directed that they be discontinued when it became apparent that restraints were no longer necessary. The trial judge exercised his discretion carefully. We find no abuse.
There is a wide variety in the situations in which shackles or other physical restraints are employed. They may upon proper occasion be employed to prevent violence and to protect the accused or others, to prevent escape, or to restrain the obstreperous or disruptive defendant. A defendant who threatens violence, or who poses an escape threat, or who tries to disrupt and prevent the trial, may be extremely intelligent and mentally alert, in control of all of his faculties, but bent on mischief. The mere fact that shackles or restraints are employed is not necessarily related to the competency of the defendant. In this case shackles were not ordered because of defendant’s incompetency.
Next, defendant claims that the prosecutor violated the rules of evidence by the use of leading questions and hearsay evidence to such an extent that defendant was denied his right to a fair trial. There were no contemporaneous objections, and therefore the errors were not preserved for appellate review. See K.S.A. 60-404 and cases cited thereunder. The trial court properly advised the defendant that if he chose to represent himself, he would be held to the same standards as a lawyer, and that some objections would be waived or lost and not available to him at a later date if he failed to make them at trial. The defendant stated that he under stood these statements. As the court stated in Faretta: “[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” 422 U.S. 835 at n. 46. We have examined the trial transcript. Though many leading questions were asked, and some hearsay evidence was received, that is true also in many trials conducted by counsel; and although the form of the evidence received here was objectionable, the evidence itself was admissible and could have been presented in proper form. Defendant was not denied a fair trial.
The prosecuting attorney, in concluding his jury argument, said: “I have no doubt in my mind that this defendant killed Pamela Parker and is guilty of the crime charged.” Defendant now contends that this was reversible error. We agree that the statement was improper. State v. McClain, 216 Kan. 602, 607, 533 P.2d 1277 (1975). A prosecutor should not inject his personal opinion into the argument. However, no contemporaneous objection was made, although defendant was represented by counsel at that stage of the proceedings, and it has long been our rule that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument to the jury where no objection is lodged. State v. Johnson, 210 Kan. 288, 502 P.2d 802 (1972); State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980). Even if objection had been lodged, we are convinced that the comment would not have constituted reversible error. The prosecution’s case — even without any evidence adduced by leading questions — was strong. The single statement was not so prejudicial that it requires reversal.
Finally, defendant complains of error in the giving of an instruction on the presumption of intent. The instruction given, however, contained the following language: “This presumption does not alter in any way the presumption of the defendant’s innocence and the burden of proof upon the State to prove the defendant guilty beyond a reasonable doubt.” The instruction does not violate the rule of Sandstrom v. Montana, 422 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979). See State v. McDaniel & Owens, 228 Kan. 172, and State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022 (1980).
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a mandamus action brought by the attorney general to compel the Wichita Municipal Court to impose and collect the assessments mandated by K.S.A. 1979 Supp. 74-5612 and 74-5613 for the support of the Kansas law enforcement training center. The action was commenced by former Attorney General Curt T. Schneider, with present Attorney General Robert T. Stephan being subsequently substituted therefor. The respondents raised various constitutional challenges to the statutes. The district court upheld the constitutionality of K.S.A. 1979 Supp. 74-5612, which requires a sliding scale of assessments be imposed in addition to any fines or bond forfeitures ordered. The district court held K.S.A. 1979 Supp. 74-5613, which requires that bail deposits include an amount sufficient to cover the K.S.A. 1979 Supp. 74-5612 assessment, was unconstitutional as bearing no reasonable relationship to the purpose of bail which is to insure the appearance of the accused at trial. The district court ordered that a writ of mandamus issue as to the imposition and collection of assessments required by K.S.A. 1979 Supp. 74-5612. The respondents appeal from the portion of the judgment upholding the validity of K.S.A. 1979 Supp. 74-5612 and petitioner cross-appeals from the portion of the judgment which struck down K.S.A. 1979 Supp. 74-5613.
The appeal and cross-appeal raise the following four basic issues:
1. Whether 1978 HB 3129, enacted as Chapter 323, Laws of 1978, contains two unrelated subjects in violation of Article 2, Section 16, of the Kansas Constitution;
2. Whether the assessment required to be imposed and collected by K.S.A. 1979 Supp. 74-5612 is an improper court cost;
3. Whether the assessment imposed by K.S.A. 1979 Supp. 74-5612 is, in actuality, an unconstitutional tax whose collection thereof by the courts violates the separation of powers doctrine; and
4. Whether K.S.A. 1979 Supp. 74-5613 constitutes the imposition of excessive bail and thereby is constitutionally defective.
We shall first consider whether 1978 HB 3129, enacted as Chapter 323, Laws of 1978, contains two unrelated subjects in violation of Article 2, Section 16, of the Kansas Constitution, which provides:
“No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. No law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed. The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
HB 3129, enacted as Chapter 323, Laws of 1978, contains fifteen sections, some of which are lengthy. In the interest of brevity, the bill will be summarized where possible.
“House Bill No. 3129
“AN ACT relating to crimes, authorizing certain release on recognizance and supervised release programs and procedures; amending and supplementing the Kansas law enforcement training center and advisory commission act; amending K.S.A. 74-5609 and K.S.A. 1977 Supp. 74-5602,74-5604 and 74-5608 and repealing the existing sections.
"Be it enacted by the Legislature of the State of Kansas:
“New Section 1. (a) Each district court is hereby authorized to establish, operate and coordinate release on recognizance programs and supervised release programs to provide services to the court and to persons who are to be charged or are charged with crimes or who have been convicted of crimes. Release on recognizance programs and supervised release programs shall be administered by probation officers and other personnel of the district court. Participation by defendants in such programs shall be on a voluntary basis. Nothing in sections 1 to 4, inclusive, shall affect the right of any person to seek or obtain release under K.S.A. 1977 Supp. 22-2802, as amended, regardless of participation or nonparticipation in release on recognizance programs or supervised release programs.
“(b) The provisions of this section shall take effect and be in force on and after July 1, 1979.”
Sections 2, 3, and 4 deal exclusively with release on recognizance and supervised release programs, setting forth criteria limitations, procedures, etc.
Section 5 amends K.S.A. 1977 Supp. 74-5602 and defines terms used in connection with the Kansas law enforcement training center.
“Sec. 6. From and after July 1, 1979, K.S.A. 1977 Supp. 74-5604 shall be and is hereby amended to read as follows: 74-5604. The director shall establish a program for periodically extending the law enforcement training and instruction of the training center throughout the state on a regional basis. The director also shall certify annually the training schools of state and local law enforcement agencies providing a basic course of law enforcement training of not less than four hundred (400) hours of instruction, and whose training programs also satisfy the qualifications and standards promulgated by the director after consultation with the commission. In addition, on or after November 20 of each even-numbered year and prior to January 1 of the next succeeding year, and at such other times as the director deems necessary, the director shall provide a training course for persons elected to the office of sheriff at the preceding general election and for undersheriffs and deputy sheriffs.
“Sec. 7. From and after July 1, 1979, K.S.A. 1977 Supp. 74-5608 shall be and is hereby amended to read as follows: 74-5608. (a) No person shall receive a permanent appointment as a police officer or law enforcement officer, unless such officer has been awarded a certificate attesting to satisfactory completion of a basic course of not less than four hundred (400) hours of accredited instruction at the training center or at a training school certified in accordance with the provisions of K.S.A. 1977 Supp. 74-5604 and amendments thereto, has been awarded such a certificate for not less than the number of hours of instruction required by this act at the time such certificate was issued or received a permanent appointment as a police officer or law enforcement officer prior to July 1, 1969.
“(b) Every person who does not hold a certificate required by subsection (a), and is elected or appointed as a law enforcement officer, shall be elected or appointed to his or her position on a temporary basis and, within one (1) year of this temporary election or appointment, must become certified, as provided in the preceding subsection, or forfeit his or her office or position.”
Section 8 authorizes the law enforcement training center to charge tuition.
“New Sec. 9. [Codified as K.S.A. 1979 Supp. 74-5612, one of the statutes specifically challenged herein] (a) Whenever an officer of any court of this state or any municipal court shall impose a fine or order a bail forfeiture as a penalty for a violation of any of the laws of this state, ordinances of a city or resolutions of a county, such officer shall also impose and collect an assessment in addition to such fine or forfeiture. Such officer shall remit all moneys received from such assessments to the state treasurer at least monthly. Upon receipt thereof, the state treasurer shall deposit the entire amount in the state treasury and credit the same to the law enforcement training center fund created by this act.
“(b) Assessments imposed pursuant to the provisions of this act shall be in amounts as follows:
“(1) When a fine or forfeiture is five dollars ($5) or more but less than fifteen ($15), the assessment shall be one dollar ($1);
“(2) when the fine or forfeiture is fifteen dollars ($15) or more but less than fifty dollars ($50), the assessment shall be two dollars ($2);
“(3) when the fine or forfeiture is fifty dollars ($50) or more but less than one hundred ($100), the assessment shall be three dollars ($3); and
“(4) when the fine or forfeiture is one hundred dollars ($100) or more, the assessment shall be five dollars ($5).
“(c) No assessment shall be imposed pursuant to this section for the violation of any ordinance or resolution relating to unlawful parking or abandoning of a motor vehicle.
“New Sec. 10. [Codified as K.S.A. 1979 Supp. 74-5613, the other statute specifically challenged herein] Whenever a deposit of bail is required for any offense to which this act applies, the person making such deposit shall also deposit a sufficient amount to include the assessment prescribed under section 9. If such bail is forfeited the assessment shall be forwarded to the state treasurer as provided in section 9. Whenever any bail is returned to the person depositing the same, the assessment shall also be returned.
“New Sec. 11. (a) There is hereby created the law enforcement training center fund. All moneys credited to such fund under the provisions of this act or any other law shall be expended only for the purposes and in the manner prescribed by law.
“(b) Expenditures from the law enforcement training center fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the director. Not less than fifteen percent (15%) of the moneys in such fund shall be used to reimburse counties and cities for the costs of temporary replacement of law enforcement officers while in attendance at the training center or training schools certified pursuant to K.S.A. 1977 Supp. 74-5604 and amendments thereto. The balance of such moneys shall be used exclusively (1) to defray the costs of operation of the training center and (2) for grants to training schools certified by the director pursuant to K.S.A. 1977 Supp. 74-5604 and amendments thereto, to be used by such schools to defray the costs of operation thereof.
“(c) On or before May 1 of each year, the head of each training school certified by the director pursuant to K.S.A. 1977 Supp. 74-5604 and amendments thereto shall certify to the director the number of persons who were awarded a certificate of satisfactory completion of the training program of such school during the preceding calendar year. Any moneys expended from the law enforcement training center fund for grants to such schools shall be distributed to each school in the ratio that the number of persons awarded a certificate by such school in the preceding calendar year bears to the total number of persons awarded certificates by all such schools in the preceding calendar year.
“(d) On or before May 1 of each year, each county or city clerk shall certify to the director the number of law enforcement officers of the county or city who, during the preceding calendar year, were awarded certificates of satisfactory completion of the basic course of instruction at the training center or training schools certified pursuant to K.S.A. 1977 Supp. 74-5604 and amendments thereto. Any moneys expended from the law enforcement training center fund to reimburse counties and cities for the costs of temporary replacement of law enforcement officers while in attendance at such training center or schools shall be distributed to each county or city in the ratio that the number of law enforcement officers of such county or city awarded certificates by such training center and schools in the preceding calendar year bears to the total number of law enforcement officers of all counties and cities awarded certificates by such training center and schools in the preceding calendar year. Any moneys so distributed to a county or city shall be remitted to the treasurer of the county or city for deposit in the fund of the county or city from which wages or salaries of law enforcement officers of the county or city are paid.
“Sec. 12. Sections 9, 10 and 11 shall be a part of and supplemental to the Kansas law enforcement training center and advisory commission act.
“Sec. 13. K.S.A. 74-5609 is hereby repealed.
“Sec. 14. From and after July 1, 1979, K.S.A. 1977 Supp. 74-5604 and 74-5608 shall be and are hereby repealed.
“Sec. 15. This act shall take effect and be in force from and after its publication in the statute book.”
It is readily apparent that Sections 1 through 4 deal exclusively with release on recognizance and supervised release programs and procedures. The balance of the act deals exclusively with the Kansas law enforcement training center and its funding.
Initially, these two areas were the subjects of separate bills. Original HB 3129 was concerned only with release programs and procedures, as shown by its original title:
“AN ACT relating to criminal procedure; authorizing certain release on recognizance and supervised release programs and procedures; amending K.S.A. 1977 Supp. 22-2802 and repealing the existing section.”
The provisions relative to the Kansas law enforcement training center originated in Substitute HB 2984, which was titled:
“AN ACT amending and supplementing the Kansas law enforcement training center and advisory commission act; amending K.S.A. 1977 Supp. 74-5602, 74-5604 and 74-5608 and repealing the existing sections.”
Said bill was voted down by the Senate on March 30, 1978. Subsequently, provisions of both bills were merged and the new title, repeated for easy reference, reflected the merger as follows:
“AN ACT relating to crimes, authorizing certain release on recognizance and supervised release programs and procedures; amending and supplementing the Kansas law enforcement training center and advisory commission act; amending K.S.A. 74-5609 and K.S.A. 1977 Supp. 74-5602,74-5604 and 74-5608 and repealing the existing sections.”
On April 15, 1978, Governor Robert F. Bennett forwarded HB 3129 to the secretary of state without signature and sent the following message to the legislature:
“MESSAGE TO THE HOUSE OF REPRESENTATIVES OF THE STATE OF KANSAS;
“House Bill 3129 is being delivered this date to the Secretary of State unsigned for the following reasons;
“House Bill 3129 grants discretionary authority to the District Courts of this state to establish, operate and coordinate ‘release on recognizance programs and supervised release programs’ for persons charged or convicted of crimes. To a large extent, these provisions represent a codification and clarification of existing judicial authority, both expressed and implied. This portion of House Bill 3129 gives needed statutory profile to release programs which can be made available by our district courts in the exercise of their sound discretion. Under such circumstances and assuming that the discretion will be exercised with caution and with wisdom, the proposal is deserving of support.
“As House Bill 3129 moved through the legislative process and near the end of that process and near the end of this session a totally different subject was attached to it by amendment relating to law enforcement training. This new proposal increases the number of hours which are required of persons involved in law enforcement and provides additional funding for the training program by increasing court costs in all criminal cases other than those involving unlawful parking or the abandonment of motor vehicles. The amendment of this new matter into the bill is another example of the ever increasing use of the floor amendment to either materially change an original purpose of a bill or to add to a proposal new material which is not germane to its original and basic substance. At best, the procedure is less than desirable and has a tendency to subvert the orderly legislative process, not only by avoiding steps in that process which are appropriate to the refinement of a legislative proposal, but also by limiting the voting options of members of the Legislature as well as the executive options constitutionally granted to the governor.
“House Bill 3129, as it was finally presented to me, is a good example of the combination of two separate subjects, one strongly supported and one strongly opposed, in an effort to force through by rider a proposal which had difficulty in passage on its own merits. The original proposal was supported with near unanimity. When the new proposal was added, the vote in both houses became badly divided, leaving to conjecture whether or not the new proposal could have been passed on its own merits or whether it received its support only as the result of the procedure used. I am of the strong opinion that the interests of the people are better served when both the Legislature and the Governor are allowed to make clear-cut decisions as opposed to the ‘either/or’ judgment required and typified in this bill.
“The increase in the number of hours required for the training of law enforcement officers is well justified in our quest for the control of crime, particularly if that training is properly and effectively developed to improve the capability of these officers to do a better job in the enforcement of today’s law and municipal ordinances. The bill raises a question, however, as to how effective our current program might be and as to what new training will be provided over and above that which is currently available. While I support increased training and improvement of the capabilities of our law enforcement officers, I strongly feel that this proposal should have followed a detailed study on that subject rather than preceded it.
“Additionally, though efforts are made to ameliorate the fiscal effect of the bill on law enforcement agencies, there is a serious question in my mind as to whether or not that has in fact been accomplished. Considering the burden currently placed on local property taxpayers to support programs such as this, it is imperative that the state, in one form or another, assume the cost of these new mandates. That assumption is not clearly shown and demonstrated in the provisions of House Bill 3129.
“The forthcoming legislative interim should be used for a complete analysis and study of our law enforcement training program, including the coordination thereof between the various units now providing training to those engaged in this activity. It should also be used for an analysis of the costs that are involved in the mandate contained in this bill so that when this Legislature next meets it can adequately fund that which it now requires.
“The blending in this bill of two totally different subjects, one with reference to recognizance and release procedures and the other with reference to law enforcement training, joined only by the broad phrase ‘relating to crime,’ raises a constitutional question as to whether or not this bill contains two subjects. As I have indicated in previous messages, however, that question should be determined by the court and not by the Governor or by the Legislature.
“For the reasons aforesaid, I am forwarding House Bill 3129 to the Secretary of State without my signature.
“Robert F. Bennett
Governor of Kansas
“Dated: April 15, 1978”
In Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 622, 549 P.2d 864 (1976), this court stated that the purposes of the one subject in a bill requirement of Article 2, Section 16, were:
“ . . . the prevention of a matter of legislative merit from being tied to an unworthy matter, the prevention of hodge-podge or log-rolling legislation, the prevention of surreptitious legislation, and the lessening of improper influences which may result from intermixing objects of legislation in the same act which have no relation to each other.”
The most thorough discussion of Article 2, Section 16, is found
in State v. Barrett, 27 Kan. 213 (1882), wherein this court stated in Syl. ¶ ¶ 3-10:
“In order to correctly interpret that provision of § 16, article 2 of the constitution, which provides that ‘No bill shall contain more than one subject, which shall be clearly expressed in its title,’ its object must be taken into consideration; and the provision must not be construed or enforced in any narrow or technical spirit, but must be construed liberally on the one side, so as to guard against the abuse intended to be prevented by it, and liberally on the other side, so as not to embarrass or obstruct needed legislation.”
“Under this provision of the constitution, the title of an act may be as broad and comprehensive as the legislature may choose to make it; or it may be ás narrow and restricted as the legislature may choose to make it. It may be so broad and comprehensive as to include innumerable minor subjects, provided all these minor subjects are capable of being so combined and united as to form only one grand and comprehensive subject; or it may be so narrow and restricted as to include only the smallest and minutest subject.”
“And while the title to an act may include more than one subject, provided all can be so united and combined as to form only one single, entire, but more extended subject; yet, neither the title to the act nor the act itself can contain more than one subject, unless all the subjects which it contains can be so united and combined as to form only one single subject.”
“In construing the title to an act as well as the act itself, reference must be had to the object of the act, and to the evil sought to be remedied by it.”
“It is not necessary that the title to an act should be a synopsis or abstract of the entire act in all its details; it is sufficient if the title indicates clearly, though in general terms, the scope of the act.”
"Where a section of an act is assailed as being in contravention of said provision of § 16, article 2 of the constitution, it is sufficient if it is germane to the single subject expressed in the title and included therein, provided the act itself does not contain more than this single subject.”
“Where the title to an act is not broad enough to include everything contained in the act, that which is not included within the title must be held to be invalid, for such is evidently the manifest intention of the constitution; and the courts have no power to enlarge or extend or amplify the title to the act, any more than they have to enlarge or diminish or modify or change the act itself.”
“Where an act contains two separate and independent subjects, having no connection with each other, and the title to the act is broad enough to cover both, held, that probably, as a general rule, the act is unconstitutional and void.”
Although Barrett is an old case it still accurately states the relevant law of Kansas.
Sections 1 through 4 of HB 3129 are exclusively concerned with certain aspects of criminal procedure. The balance of the bill is concerned with the Kansas law enforcement training center. These are two separate subjects which cannot lawfully be united under the broad title “crimes.” Significantly, no crimes are defined in the act and no provision in the act amends or alters the Kansas Criminal Code which is located in Chapter 21 of the Kansas statutes. Having determined that HB 3129 contains more than one subject, we must conclude that the bill is violative of Article 2, Section 16, of the Kansas Constitution; hence, it is invalid in its entirety. Accordingly, the trial court erred in issuing a writ of mandamus compelling compliance with K.S.A. 1979 Supp. 74-5612.
By virtue of this result there is no need to consider the other issues raised on appeal and cross-appeal.
Before concluding, we must consider the effect of the determination that HB 3129 is invalid on the statutes the bill amended. K.S.A. 1977 Supp. 74-5602 was subsequently amended by the same 1978 legislature (Chapter 324, Laws of 1978) and, accordingly, is unaffected by this decision. The statutes repealed by HB 3129 were integral parts of the Kansas law enforcement training center program. The bill provided substitute provisions therefor.
In Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975), this court considered the effect of an act, later held unconstitutional, which purported to amend and repeal existing statutes. The court approved and applied the following statement from City of Kansas City v. Robb, 164 Kan. 577, Syl. ¶ 2, 190 P.2d 398 (1948):
“ ‘Where a legislative act expressly repealing an existing statute, and providing a substitute therefor, is invalid, the repealing clause is also invalid unless it appears that the legislature would have passed the repealing clause even if it had not provided a substitute for the statute repealed.’ ” p. 45.
The changes made by HB 3129, relative to the Kansas law enforcement training center, deal primarily with its funding. We cannot conclude that the legislature would have passed the repealing clauses if it had not provided substitutes for such statutes. Under such circumstances, the repealing clauses are also invalid.
The judgment is reversed in part and affirmed in part.
Holmes, J., not participating. | [
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Per Curiam:
We granted a petition for review of the Court of Appeals’ decision in this workmen’s compensation case. Supplemental briefs and briefs of amici curiae were filed, and the case was argued. After a thorough study, we conclude that the decision of the Court of Appeals properly and correctly resolves the issues.
The opinion of the Court of Appeals in Antwi v. C-E Industrial Group, 5 Kan. App. 2d 53, 612 P.2d 656 (1980), is adopted as the opinion of this court.
The judgment of the Court of Appeals is affirmed, the judgment of the District Court is reversed, and the case is remanded for reconsideration as to the percentage of disability. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by the attorney general from a decision of the trial court holding that a proceeding under K.S.A. 1979 Supp. 17-1366 etseq., constitutes an unconstitutional taking of private property, without due process and without just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
The 1979 Kansas legislature passed an act relating to the maintenance of abandoned cemeteries, K.S.A. 1979 Supp. 17-1366 through -1368. Pursuant to the terms of the act the attorney general investigated the Woodlawn Cemetery, in Kansas City, Kansas, and determined it to be an “abandoned cemetery,” as defined in the act. Specifically, investigation by the attorney general determined, and he alleged in his petition: Weeds and grass had not been cut; graves, markers, walls, fences and driveways had not been cared for; proper maintenance had been lacking for an unknown time period, exceeding one year; and the Woodlawn Cemetery Association had made no annual reports to the secretary of state, as required by K.S.A. 1979 Supp. 17-1312a.
An affidavit of Virgil and Anna Huntington, dated June 5, 1979, states:
“1. For the last fifteen years we have held the occupation of grave-diggers in Woodlawn Cemetery.
“2. We are the parties primarily responsible for burying individuals owning lots in Woodlawn Cemetery located in Wyandotte County.
“3. We do have occasion to view Woodlawn Cemetery on a regular basis.
“4. Since the passing of Mrs. A. J. Herrod in January of 1978, there has been only spot maintenance. Walls, fences, and driveways need repair.
“5. We are aware of no specific owners for the Woodlawn Cemetery.
“6. Mrs. A. J. Herrod was just an interested party for Woodlawn Cemetery and while living did as much cleaning as possible, on funds donated by plot owners.”
An affidavit of Jack H. Brier, secretary of state of the State of Kansas, dated May 16,1979, certified “that a search of our records does not reveal that a corporation by the name WOODLAWN CEMETERY, Wyandotte, County, Kansas has ever been either incorporated in the State of Kansas as a domestic corporation, or authorized to do business in Kansas as a foreign corporation.”
The attorney general filed an action in Wyandotte County District Court against the Woodlawn Cemetery Association and other named defendants. The petition was filed pursuant to K.S.A., Chapter 60, and was captioned: “PETITION TO DISSOLVE CEMETERY CORPORATIONS AND TRANSFER TITLE TO PROPERTY OF SAME TO THE MUNICIPALITY OF KANSAS CITY, KANSAS.” Named as defendants were V. J. Lane, the association, and Brotherhood State Bank. V. J. Lane was the president of the association at the time the cemetery was platted; Woodlawn Cemetery Association was the cemetery’s last known owner; Brotherhood State Bank (now Brotherhood Bank and Trust Co.) possessed the cemetery maintenance fund of approximately $735. All unknown cemetery associations which might have an interest in Woodlawn Cemetery were also listed as defendants. Notice by publication was printed in the appropriate newspapers pursuant to K.S.A. 60-307. Brotherhood State Bank was the only defendant to file an answer. The bank admitted holding funds owned by the Woodlawn Cemetery Association, or others, or on behalf of the association. The bank’s answer alleged the exact ownership of the money was unknown to the bank, and the bank submitted the question of ownership of the funds to the trial court.
The City of Kansas City, Kansas, was permitted to intervene in the action. The trial court determined the City has a personal stake in the outcome of the controversy because the proceeding under the act would transfer to the City the cemetery’s title and responsibility for cemetery maintenance. The matter was submitted to the trial court on motion for summary judgment by both the attorney general and the City.
In a memorandum opinion the trial court held K.S.A. 1979 Supp. 17-1366 through -1368 to be unconstitutional. The court held the provisions of the act which transfer title to the cemetery property are beyond the legitimate scope of police power regulation and constitute a “taking” of private property. The trial court also held the act does not provide for due process or just compensation prior to the taking of title. The trial court rejected the City’s argument that the act violates the doctrine of separation of powers. The trial court also rejected the City’s argument that the act’s definition of abandoned cemetery, and the legislature’s failure to adopt alternative methods, were an unreasonable, arbitrary and excessive exercise of police power.
The attorney general has appealed from the decision of the trial court holding the act to be unconstitutional; and the City has cross-appealed the decision of the trial court rejecting the City’s argument on separation of powers and exercise of police power.
The act which spawned this suit provides:
“17-1366. Maintenance of abandoned cemeteries; definitions. As used in this act: (a) ‘Abandoned cemetery’ means any cemetery owned by a corporation, as defined in K.S.A. 1979 Supp. 17-1312Í, in which, for a period of at least one year, there has been a failure to cut grass or weeds or care for graves, grave markers, walls, fences, driveways and buildings or for which proper records have not been maintained and annual reports made to the secretary of state pursuant to the provisions of K.S.A. 17-1312a et seq., and amendments thereto; and
“(b) ‘municipality’ means the cemetery district in which all or any portion of an abandoned cemetery is located. If no portion of such cemetery is located within a cemetery district, the term shall mean the city in which all or any portion of an abandoned cemetery is located unless such cemetery is not within the corporate limits of a city, in which case such term shall mean the county in which such cemetery is located.”
“17-1367. Same; dissolution of certain cemetery corporations; transfer of property and moneys. Whenever the attorney general determines the existence of an abandoned cemetery in this state, the attorney general shall immediately proceed to dissolve the cemetery corporation owning the same. Upon the dissolution of such corporation, title to all property owned by the cemetery corporation shall vest in the municipality in which the cemetery is located, and the permanent maintenance fund, together with all investments then outstanding, and all books, records and papers of such corporation shall be transferred to the treasurer of such municipality and shall become the property thereof. Upon the transfer of such property and funds, the governing body of such municipality shall care for and maintain such cemetery with any moneys of the cemetery corporation including the principal of and income from the permanent maintenance fund and, if such moneys are insufficient to properly maintain such cemetery, with funds of the municipality. The principal of and income from the permanent maintenance fund may be deposited in any appropriate fund of the municipality or may be invested in the manner provided in K.S.A. 1979 Supp. 17-1311, but shall be used exclusively for care and maintenance of such cemetery.”
“17-1368. Same; contract by municipality for maintenance. Any municipality required, pursuant to this act, to care for and maintain a cemetery may contract with any individual, firm, corporation or association for the care and maintenance thereof or for the sale of unsold burial lots and the opening and closing of graves, but no such contract or any other agreement entered into by such municipality shall be deemed to relieve such municipality of the duties and responsibilities imposed under the provisions of this act.”
This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold a statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980); State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978); Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975).
The attorney general first argues the trial court erred in ruling the provisions of the act would constitute an eminent domain “taking” of private property. The attorney general contends the act is a legitimate exercise of the police power of the State; that it is the regulation of a matter affecting public health, welfare and safety.
A state possesses an inherent power to regulate certain businesses and professions for the good of society. This “police power,” as the term has become known, gives a state the right to act to protect and promote public health, safety, morals, peace, quiet, and law and order. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614-15, 576 P.2d 221 (1978). The police power of the State extends not only to the protection of the public health, safety and morals, but also to the preservation and promotion of the public welfare. State v. Consumers Warehouse Market, 183 Kan. 502, 508, 329 P.2d 638 (1958); see State, ex rel., v. Anderson, 195 Kan. 649, 654, 408 P.2d 864 (1965). If a statute falls within the exercise of the police power of the State, those subject to that statute must submit to its provisions, whatever the effect may be upon property or business. See Burlingame v. Thompson, 74 Kan. 393, 394, 86 Pac. 449 (1906). However, there are limits to the scope and permissible exercise of the State’s police power. The court described those limits in Grigsby v. Mitchum, 191 Kan. 293, 302, 380 P.2d 363 (1963), cert. denied 375 U.S. 966 (1964), stating:
“Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.”
In State, ex rel., v. Anderson, 195 Kan. at 655, the court entertained a challenge to certain state statutes governing sale of burial lots, burial vaults, and markers. After reciting familiar principles outlining the State’s police power, the court stated: “We have no difficulty in saying the subject is within the scope of the state’s police power. The state has long had regulatory statutes of various kinds touching upon disposition of dead bodies.”
In State, ex rel., v. Anderson, 195 Kan. at 652, we also discussed K.S.A. 17-1311, which requires certain cemetery corporations to maintain a “permanent maintenance fund.” We stated:
“The statute, originally enacted in 1901 (Laws 1901, ch. 102, § 5), expressed the public concern in maintaining in a seemly manner places set apart as burial grounds and in preventing the maintenance of privately developed public cemeteries from becoming public charges. Being of a remedial nature it is to be liberally construed to effectuate the purpose for which it was enacted (Van Doren v. Etchen, 112 Kan. 380, 383, 211 Pac. 144).”
The act challenged in this litigation expresses the same concern for the maintenance of cemeteries. Specific reference is made to the permanent maintenance fund established by K.S.A. 1979 Supp. 17-1311 in K.S.A. 1979 Supp. 17-1367.
Presently, over 50 statutes in Kansas Statutes Annotated, chapter 17, article 13, are devoted to the subject of cemetery corporations. Chapter 80, article 9 is devoted primarily to township cemeteries. Chapter 12, article 14 establishes the authority and responsibility of cities and municipalities for cemeteries. Without question, the legislature considers the subject of burial grounds in general, and cemetery corporations in particular, a legitimate subject for exercise of the State’s police power. We concur. It must be noted the term “corporation” as it pertains to cemeteries is defined in K.S.A. 1979 Supp. 17-1312f.
The City contends the act constitutes an eminent domain “taking” of a property interest for which just compensation is due. The trial court agreed. According to the City’s argument, 17-1367 “on its face” takes title to property from the cemetery corporation and gives that title to the City. Comparisons are drawn to seizure, occupation, and actual use of property by public authorities. We are asked to accept the non sequitur that “a physical invasion or acquisition has occurred, because the municipality acquires title to the cemetery corporation’s property.” Alternatively, the City argues that there has been such an onerous burden placed on the cemetery corporation by the transfer of title as to constitute a taking. These arguments have no merit. Both arguments arise out of the City’s misconception of the property rights which accompany title to cemetery property. We note that the trial court and the attorney general also misconceived the nature of the title held by a cemetery corporation.
It has been stated that a cemetery, by its inherent nature, is not subject to the laws of ordinary property. 14 C J.S., Cemeteries § 1, p. 63. See Hammerstein v. Woodlawn Cemetery, 21 Misc. 2d 42, 194 N.Y.S.2d 385 (1960); Evergreen-Washelli v. Revenue, 89 Wash. 2d 660, 574 P.2d 735 (1978); Leleux v. Viator, 55 So. 2d 662 (La. App. 1951); St. Peter’s Evan. Luth. Ch. v. Kleinfelter, 96 Pa. Super. Ct. 146 (1929); Peterson v. Stolz, 269 S.W. 113 (Tex. Civ. App. 1925).
A cemetery is a place or area of ground set apart for the burial of the dead. The law contemplates two classes of cemeteries, public and private. The former is used by the general community or neighborhood, or church, while the latter is used only by a family, or a small portion of the community. City of Wichita v. Schwertner, 130 Kan. 397, 400, 286 Pac. 266 (1930). A cemetery which is open to the public for burial is a public cemetery regardless of the fact it is privately owned or maintained. In Cemetery Association v. Meninger, 14 Kan. 312, 317 (1875), this court expressed the view that “[a] cemetery is as public a place as a courthouse, or a market. It may not be frequented as much, but visits to it are necessary and as certain. . . . We may keep away from the courthouse, and avoid the market, but the place of the dead none may shun.”
We are in accord with the view that a cemetery corporation is usually organized for a public rather than private purpose, and the cemetery management is in the nature of a trust. See Carlock v. Ladies Cemetery Association, 317 S.W.2d 432 (Mo. 1958); Frank v. Kugler, 121 N.J. Super. 589, 298 A.2d 291 (1972); Dennis v. Glenwood Cemetery, 96 N. J. Eq. 399, 130 A. 373 (1924); 14 C.J.S., Cemeteries § 6, p. 67. The Kansas legislature requires cemetery corporations to maintain a permanent maintenance fund, which is similar to a trust fund. K.S.A. 1979 Supp. 17-1311. See Bogert, Trusts and Trustees § 377 (2d ed. rev. 1977).
In Davis v. Coventry, 65 Kan. 557, 563-64, 70 Pac. 583 (1902), we discussed the unique character of cemetery corporations, stating:
“Is this corporation public or for profit? Many reasons may be found in the law for concluding that it is public and none supporting the contrary idea. For instance, the property so platted and held is exempt from taxation. It has not been the policy of the state, even if it were constitutional, to exempt private property from taxation. No reason can be suggested why a private cemetery corporation operated for profit should receive any more grace at the hands of the legislature than a private corporation organized for any other purpose. Another instance indicating that it is a public corporation is the limitation placed upon the corporation in its disposition of the property. It can sell ‘by lot or lots’ and for the purpose of ‘sepulture’ only, and the plat, when recorded in the office of the register of deeds, ‘shall not be afterwards changed or altered. ’ Similar limitations are not found in the law governing other private corporations. Private corporations are left to manage their property with as much independence and freedom as natural persons.
“In construing a statute precisely like ours, in Cemetery Co. v. Cemetery Ass’n, 93 Tex. 569, 57 S.W. 27, 55 L.R.A. 503, the supreme court of Texas said:
“ ‘When the Oakland cemetery corporation laid out its lands into lots and subdivisions and caused a plat of the land to be made and recorded in the office of the county clerk of Dallas county, the land so laid out was irrevocably dedicated to use as a place of burial for the dead, just as effectually as if the statute had stated that it should be so dedicated. The use prescribed is public in its nature, and of a character that necessarily excludes any concurrent use of the same property. Consequently, the use is exclusively for purposes of sepulture. After the dedication of the land, the legal title remains in the corporation only for the purpose of conveying the lots to those who desired to use them for the purpose of burying the dead. No power is given by the statute to such corporations to convey the property for any other purpose, and the fact that the lots and subdivisions are made unchangeable, and that the power is restricted to conveyances of “any lot or lots . . . for purposes of sepulture,” operates as a limitation upon the power of the corporation to convey the land to “a lot or lots,” and for the uses named. Upon dedication, the dominion of the corporation over the land as owner in fee simple was surrendered, and the corporation became, in effect, a trustee to sell and convey the lots for the purposes specified, and to carry out the purposes enumerated in the statute, with the right to appropriate the proceeds of the sale to itself in payment of the land. Each lotowner became a member of the corporation in the sense that he was entitled to participate in all elections for officers to manage the corporate business, and each was interested not only in the particular lot conveyed to him, but in the entire ground of the cemetery, to be kept as an entirety, and to be perpetuated and cared for by a corporate body.’ ” (Emphasis added.)
In Kansas to this day, cemetery property remains exempt from taxation. K.S.A. 79-201c Third. All lots and tracts of land contained within the boundaries of a cemetery platted by a cemetery corporation are dedicated exclusively for burial purposes and cannot be used for any other purpose. K.S.A. 17-1302 et seq.; Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 44, 542 P.2d 278 (1975).
Under the terms of the act, before a cemetery corporation may be dissolved it must be established that the cemetery has been abandoned. A cemetery corporation which has abandoned its responsibility for the cemetery property is no longer fulfilling its responsibility and forfeits its position of trust. Due to the important public interest in a cemetery, the State has seen fit to provide a procedure for the appointment of a successor trustee. Because ordinary rules of property ownership do not apply to cemeteries, and management of a cemetery corporation is similar to a trust, the title to cemetery property held by a cemetery corporation does not represent the same property interest normally associated with title to real property.
Using the foregoing analysis based upon the law cited, we conclude the trial court erred in holding that a compensable taking of private property occurred under the act in question. In Smith v. State Highway Commission, 185 Kan. 445, 453-54, 346 P.2d 259 (1959), the court discussed the balancing of interests which occurs in determining whether the exercise of governmental power constitutes a compensable taking or a noncompensable exercise of police power. The court stated:
“The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals. (Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 and Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L.R.A. [n.s.] 877.) Eminent domain, on the other hand, is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. (Highbarger v. Milford, [71 Kan. 331, 80 Pac. 633 (1905)]; and Simmons v. State Highway Commission, [178 Kan. 26, 283 P.2d 392 (1955)].)
“. . . Determination of whether damages are compensable under eminent domain or noncompensable under the police power depends on the relative importance of the interests affected. The court must weigh the relative interests of the public and that of the individual, so as to arrive at a just balance in order that government will not be unduly restricted in the proper exercise of its functions for the public good, while at the same time giving due effect to the policy in the eminent domain clause of insuring the individual against an unreasonable loss occasioned by the exercise of governmental power.” (Emphasis in original.)
All points raised by the appeal and cross-appeal herein are so interwoven that a categorical conclusion cannot be logically stated until all points are discussed and analyzed.
The trial court held procedural due process was violated by the act in question because there is no express provision in the act for notice and hearing. In making this determination the trial court relied on the bare statutory language directing the attorney gen eral to “proceed to dissolve” the cemetery corporation. K.S.A. 1979 Supp. 17-1367.
The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Sinclair v. Schroeder, 225 Kan. 3, 9, 586 P.2d 683 (1978); Brown v. Fitzpatrick, 224 Kan. 636, 640, 585 P.2d 987 (1978); Schulze v. Board of Education, 221 Kan. 351, Syl. ¶ 3, 559 P.2d 367 (1977). A corporation is a “person” entitled to the protection of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. State ex rel., v. American Oil Company, 202 Kan. 185, 187, 446 P.2d 754 (1968).
It must be noted our opinion is not confined to a business enterprise known as a corporation in the technical sense. K.S.A. 1979 Supp. 17-1366 begins with the language: “As used in this act: (a) ‘Abandoned cemetery’ means any cemetery owned by a corporation, as defined in K.S.A. 1979 Supp. 17-1312f . . . .” (Emphasis added.)
Accordingly, the reliance of the trial court and the attorney general on Razor Co. v. Guymon, 110 Kan. 745, 205 Pac. 635 (1922), is misplaced. There a corporation failed to make annual statements and pay a prescribed fee within the time fixed by the legislature, and it was held to work a forfeiture of its charter, which the legislature authorized the state charter board to declare. On appeal, that legislation concerning corporations was said to be within the constitutional power of the legislature.
The general rule is that, unless there are some statutory provisions clearly requiring it, on the happening of the event giving rise to a right to forfeiture it does not of itself operate, ipso facto, as a dissolution, but simply affords ground on which the State may maintain judicial proceedings therefor; and that the corporation continues to exist until the sovereignty which created it shall by proper proceedings in a proper court procure a final adjudication of forfeiture or dissolution. 19 C.J.S., Corporations § 1649, p. 1421.
A careful analysis of the language in K.S.A. 1979 Supp. 17-1367 does not suggest that the attorney general has the authority to declare a cemetery in this State to be abandoned. The language reads: “Whenever the attorney general determines the existence of an abandoned cemetery in this state, the attorney general shall immediately proceed to dissolve the cemetery corporation owning the same. ” (Emphasis added.)
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. City of Salina v. Jaggers, 228 Kan. 155, 612 P.2d 618 (1980), Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979). In determining legislative intent the court may properly look to the purpose to be accomplished, and the necessity and the effect of the statute. Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 646, 438 P.2d 128 (1968). See also Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 466-67, 183 P.2d 234 (1947) and the many rules of statutory construction cited therein. The legislation in question is designed to revive proper cemetery maintenance where the responsible cemetery corporation has abandoned its charge. The statutory scheme is designed to bring about dissolution of the cemetery corporation and transfer the cemetery property title.
We have no hesitance in finding the legislative intent in the act under consideration was to direct the attorney general to proceed in a district court, in the name of the State, to dissolve the cemetery corporation by an appropriate action pursuant to chapter 60, Kansas Statutes Annotated. An action filed in the district court, as the attorney general has done in the instant case, will ensure procedures designed to fulfill the requirements of due process notice and hearing. When, as in the instant case, the defendant cemetery corporation and its responsible officers cannot be found with the exercise of reasonable diligence, the procedures of K.S.A. 60-307, absent legitimate attack, are authorized to give the district court jurisdiction. A judicial proceeding in district court pursuant to the statute permits the trial court to determine the factual allegations of the attorney general that an “abandoned cemetery” exists. If the attorney general sustains the burden of proving the allegations in his petition, dissolution of the cemetery corporation and the transfer of the cemetery property title to the appropriate municipality are accomplished by an order of the trial court pursuant to the statute. A simple court order accomplishes what is in effect the appointment of a successor trustee to maintain the cemetery and hold title to the cemetery property.
The general corporation code presently permits district court action of a similar nature in K.S.A. 17-6808 and -6809. K.S.A. 17-6001(c) states that the provisions and requirements of the general corporation code supplement statutes on special corporations and govern special corporations when the statutory requirements are not inconsistent.
K.S.A. 1979 Supp. 17-1366 defines cemetery “corporation” by reference to K.S.A. 1979 Supp. 17-1312f, a portion of the permanent maintenance fund act. K.S.A. 17-1312d permits the attorney general, upon request of the secretary of state, to “begin action for the appointment of a receiver for such cemetery corporation and to dissolve the same.” This statute is similar to K.S.A. 1979 Supp. 17-1367, in that no specific dissolution procedure is described.
In an act relating to cemetery districts, K.S.A. 1979 Supp. 17-1330 and -1331 and K.S.A. 17-1332 through -1335i, the legislature has provided for proceedings in district court when it is necessary to vest title to abandoned burial lots in the cemetery district. The suit is in the nature of a quiet title action. K.S.A. 17-1335c, 1335e.
On its cross-appeal from the trial court’s decision the City raises two issues. The City contends: (1) the act is an unreasonable, arbitrary, capricious and excessive exercise of the police power, and (2) the act is an unconstitutional violation of the doctrine of separation of powers.
Treating the points on the cross-appeal in reverse order, it is readily apparent the City’s argument — that the attorney general performs judicial functions under the act in question — has no merit. Under the foregoing interpretation of the act by this court the factual determination as to whether a cemetery has been abandoned, and the application of the law to the facts, is in the judicial branch of government. Here the attorney general’s action filed in the district court was in strict compliance with the legislative direction to “proceed to dissolve the cemetery corporation” owning the “abandoned cemetery.”
On its first point on the cross-appeal the City argues the definition of “abandoned cemetery” in 17-1366(a) is overinclusive; that a more traditional definition of abandonment should be applied. The trial court held the definition of abandonment is not the definition at common law, but that supplied by the statute.
It is argued by the City the trial court’s ruling begs the ques tion. The point made by the City is that the statutory definition of abandoned cemetery exceeds the police power, in that it goes so far beyond the traditional definition of abandonment, and beyond what is necessary and reasonably related to the problem addressed by the statute, that it violates due process. The City asserts the act is an unconstitutional violation of the substantive due process requirements of the Fourteenth Amendment to the United States Constitution.
The police power is wide in its scope and gives the governmental body broad powers to enact laws to promote the health, morals, security, and welfare of the people. Broad discretion is vested in the governing body to determine for itself what is deleterious to health, morals, or is inimical to public welfare. However, the governing body does not possess plenary power to pass legislation that is arbitrary, oppressive, or so capricious that it has no reasonable basis. Delight Wholesale Co. v. City of Prairie Village, 208 Kan. 246, 249-50, 491 P.2d 910 (1971).
To justify the State’s assertion of its authority in behalf of the public, it must appear that the interests of the public require such interference; that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. Debatable questions as to reasonableness are not for the courts but for the legislature. Whether the regulation imposed by the act is reasonable depends upon such things as the nature of menace against which it will protect, the magnitude of the curtailment of individual rights affected, and the availability and effectiveness of other less drastic protective measures. Goldblatt v. Hempstead, 369 U.S. 590, 8 L.Ed.2d 130, 82 S.Ct. 987 (1962).
There is no constraint on the exercise of the State’s police power which requires the legislature to define or classify the subject of its power in accordance with old common law definitions or concepts. In fact, the very essence of the need to exercise police power may arise from a recent development which is not encompassed by traditional or common law concepts. The common law of Kansas is the common law embedded in our legal history as modified by the wants and needs of the people of Kansas. The common law definition of abandoned cemetery which the City asserts as traditional is described in 14 C.J.S., Cemeteries § 22b, p. 83, as follows:
“[S]o long as a cemetery is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves, or so long as it is known or recognized by the public as a cemetery, it is not abandoned, but it may be said to be abandoned where all the bodies have been removed, or the cemetery has been so neglected as entirely to lose its identity as such, and is no longer known, recognized, and respected by the public as a cemetery,”
Cemeteries subject to the act here in question have not lost their character as burial grounds; they are still known and respected as graveyards. The legislature was confronted with cemeteries abandoned in a different sense, and properly supplied a new definition. This was clearly within the power of the State in the exercise of its police power. What has previously been said in this opinion regarding the permissible limits of the State’s police power, and the important State interest in preserving and maintaining cemeteries, serves to answer the City’s primary complaints.
The City, in its brief, isolates the various phrases in the definition of “abandoned cemetery” in K.S.A. 1979 Supp. 17-1366. The City contends any one condition, such as the failure to cut weeds in a few areas for a growing season, could result in a cemetery being declared abandoned. On this premise the City contends the legislature’s failure to define “abandoned cemetery” in such a way as to avoid including cemeteries which are not abandoned is unreasonable, arbitrary, and capricious, and in excess of the police power.
In our opinion the definition supplied by the enactment in question is adequate because it is reasonable and bears a fair relationship to the object sought to be obtained. The definition must be read in its entirety for its meaning. If, as a factual matter, the definition of “abandoned cemetery” in 17-1366 is asserted by the attorney general in the trial of an action under particular circumstances suggesting that exercise of State police power would result in arbitrary, capricious, or unreasonable action, the matter can be addressed to the trial court as an issue in the case. In that situation the attorney general would simply fail to sustain the burden of proof cast upon him to establish the existence of an abandoned cemetery within the meaning of the statute.
In our opinion the trial court erred in concluding K.S.A. 1979 Supp. 17-1366 et seq., effects a compensable taking of private property in violation of the Fifth and Fourteenth Amendments to the United States Constitution. We find the act in question constitutes a permissible exercise of the State’s police power and is constitutional.
The judgment of the lower court is reversed in part, and affirmed in part, in accordance with our discussion in the foregoing opinion. The case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Holmes, J.:
The Federal Land Bank of Wichita, Wichita, Kansas, (Land Bank) appeals from a judgment in favor of Frank H. and Helen Classen (the Classens) quieting their title to the oil, gas and other minerals under two quarter sections of land in Meade County.
The basic facts are not in dispute and were agreed to by stipulation of the parties. The stipulated facts pertinent to the issues in this appeal were:
“1. The Defendant, The Federal Land Bank of Wichita, was previously the owner of fee title to the surface and minerals in and under the following described real estate:
The Southwest Quarter (SW/4) of Section Five (5); the Northeast Quarter (NE/4) of Section Seven (7); and the Northwest Quarter (NW/4) of Section Eight (8); all in Township Thirty-three (33) South, Range Twenty-seven (27) West of the 6th P.M., Meade County, Kansas.
“2. On the 5th day of August, 1943, the Defendant conveyed the above described property to Frank H. Classen and Helen Classen, his wife, by warranty deed recorded in Book 40, Page 595.
“3. From said deed the Defendant excepted and reserved unto itself, its successors and assigns, an undivided one-fourth (%) of all oil, gas and other minerals and mineral rights in, upon and under the above described real estate for a period of twenty (20) years from and after April 25, 1941,
‘. . . and so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom or the premises are being developed or operated . . .’
“4. On August 19, 1949, Frank H. Classen and Helen Classen, his wife, conveyed the Northeast Quarter (NE/4) of Section Seven (7), above described, to A. J. Enns, by warranty deed recorded in Book 44, Page 567.
“5. On November 28, 1950, Frank H. Classen and Helen Classen, his wife, executed and delivered to Columbian Fuel Corporation an oil and gas lease upon and covering the Northwest Quarter (NW/4) of Section Eight (8), and the Southwest Quarter (SW/4) of Section Five (5), above described. The said oil and gas lease was recorded in Book 7, Page 521 and was subsequently assigned to Diamond Shamrock Corporation.
“6. On November 28, 1950, the Defendant, The Federal Land Bank of Wichita, Wichita, Kansas, made, executed and delivered to Columbian Fuel Corporation an oil and gas lease, covering the Southwest Quarter (SW/4) of Section Five (5) and the Northwest Quarter (NW/4) of Section Eight (8), above described. Said lease was recorded in Book 8, Page 284 and was subsequently assigned to Diamond Shamrock Corporation.
“7. On May 5, 1958, A. J. Enns and Susie Enns, his wife, conveyed the Northeast Quarter (NE/4) of Section Seven (7) to Menno A. Friesen and Hilda L. Friesen, his wife, as joint tenants, by deed recorded in Book 49, Page 128.
“8. By Declaration of Consolidation of Gas Leasehold Estate, dated October 20, 1958, the hereinabove described oil and gas leases, as amended, were pooled and unitized by the then record owners with other leases on other lands, to form a consolidated gas leasehold estate upon and covering all of Section Eight (8), Township Thirty-three (33) South, Range Twenty-seven .(27) West, Meade County, Kansas.
“9. Thereafter, on or about March 30,1959, and within the primary term of the Defendant’s one-quarter (%) mineral interest reservation, a well productive of gas in paying quantities was drilled upon said pooled and unitized gas leaseholds estates — the said well being located on the Southeast Quarter (SE/4) of said Section Eight (8).
“10. Said well has continuously produced gas in paying quantities since March 30, 1959, and continues to produce gas in paying quantities at this time. Since commencement of production, royalties on such production attributable to the Northwest Quarter (NW/4) of Section Eight (8) have been paid, and continue to be paid, three-fourths (%) to Plaintiffs, and one-fourth (14) to Defendant. Such division and payment of royalty has been made at all times with the full knowledge of Plaintiffs.
“11. On November 30, 1960, the then record owners of the oil and gas leases described in paragraphs numbered 5 and 6 above released the leases, only insofar as they covered the Southwest Quarter (SW/4) of Section Five (5) hereinbefore described. The release is recorded in Book G, Page 239.
“12. On April 25,1961, there was no producing oil or gas well drilled, or in the process of being drilled, which was physically located on any of the three quarter sections originally conveyed by the Defendant to the Plaintiffs by deed recorded in Book 40, Page 595.
“19. To date, no producing oil or gas well has ever been physically located and drilled upon the Southwest Quarter (SW/4) of Section Five (5) or on the Northwest Quarter (NW/4) of Section Eight (8), above described.”
Hereafter the Northwest Quarter of Section Eight will be referred to as Tract 1; the Northeast Quarter of Section Seven as Tract 2; and the Southwest Quarter of Section Five as Tract 3.
At the outset we deem it appropriate to comment that although, strictly speaking, “pooling” refers to the consolidation of multiple tracts for purposes of forming a drilling or spacing unit, and “unitization” refers to a consolidation of tracts for joint operation of all or part of a reservoir, the terms are often used interchangeably. 5 Summers, Oil and Gas § 951. In the context of their use in this opinion, we will be referring to a gas spacing or drilling unit. Likewise, a term mineral interest may be created by either grant or reservation, resulting in two types of future interests. Many courts and authorities describe the potential interest to be obtained by the fee owner upon termination of the term mineral interest as a “reversion,” regardless of the method of creation, and the owner thereof as the “reversioner.” As rules of law considered herein apply equally to either method of creation, we will not attempt to differentiate between the two types of interests and will use the more commonly understood terms relating to reversionary interests.
Tract 2, owned by Menno and Hilda L. Friesen, was the subject of a separate quiet title action in the Meade County District Court against the Land Bank wherein the Friesens' title was quieted against the one-fourth mineral interest claimed by the Land Bank and therefore Tract 2 is not directly involved in this appeal. That decision was recently affirmed by this court in Friesen v. Federal Land Bank of Wichita, 227 Kan. 522, 608 P.2d 915 (1980), and we will not repeat here additional facts set forth therein.
In the fall of 1958, the Land Bank and the Classens executed separate documents to Shamrock Oil and Gas Corporation, evidently an assignee of the leases to Diamond Shamrock Corporation, amending the oil and gas leases described in stipulations 5 and 6 above. The purpose of the amendments was to allow the consolidation of the gas leasehold estates on Tract 1 with the rest of Section 8 to form one 640 acre unit for the production of gas. The properties involved are located in what is known as the McKinney Gas Field. The Kansas Corporation Commission has assumed jurisdiction of the field and on July 9, 1958, issued a basic proration order which includes the following findings:
“3. COMMON SOURCE OF SUPPLY. The McKinney Gas Field is a common source of supply of natural gas within the purview of and as contemplated by G.S. 1949, Chapter 55, Article 7; that said common source of supply exists from the top of the Morrowan Sandstones of the Pennsylvanian System to the base of the Chester Formation of the Mississippian System. In the interest of the conservation of natural gas and prevention of waste thereof, the public interest requires that the Commission take jurisdiction of said field and adopt and promulgate appropriate rules and regulations relating to the production, sale and conservation of natural gas from the said field.
“4. IURISDICTION REQUIRED. In order to prevent disproportionate production from the wells and leases in said field which might impair the correlative rights of the owners of developed leases and in order to comply with the existing statutes to provide for orderly development in well spacing, it is necessary for the Commission to take jurisdiction and to prescribe regulations for the production of gas from presently completed wells and others that may be hereafter completed in said field, to the end that each person, firm, or corporation having the right to drill into and produce natural gas from said field may take therefrom only such proportion of the amount that may be produced therefrom without waste and as will permit each developed lease to produce ultimately at least approximately the amount of gas underlying the lease on which such well is located and currently produce proportionately with the other leases in said field.
“5. ACREAGE AND WELL SPACING. One well completed in said formation can adequately and sufficiently drain 640 acres without causing waste and, considering the cost of drilling, equipping and operating one well in comparison with the estimated recovery per acre and the rate at which the production for said field can be ratably and nonwastefully marketed, the Commission finds that the basic acreage unit to be used in the proration formula hereinafter prescribed should be 640 acres and that in no instance shall more than 640 acres be attributable to a well for the purpose of calculating the acreage factor except by specific order of the Commission.”
In the trial court the Hon. Robert M. Baker originally ruled that the Classens’ title to Tract 3 should be quieted against the Land Bank, as there had been no production from that tract and it was not included within a producing unit. The court denied the Classens’ claim as to Tract 1 and held the mineral interest of the Land Bank was perpetuated by production from the gas unit comprising Section 8 which did include Tract 1. Shortly thereafter Judge Baker resigned to return to private law practice and the Hon. Don C. Smith was appointed to succeed him. Following Judge Smith’s appointment, the Classens filed a motion seeking an amendment of Judge Baker’s findings of fact and conclusions of law. This motion was sustained and thereupon Judge Smith entered judgment for the Classens quieting their title against the Land Bank to Tract 1 as well as Tract 3. This appeal followed.
The primary term of the mineral reservation in the original deed to the Classens was until April 25,1961, and it is agreed that as of that date no wells had ever been drilled on Tracts 1, 2 or 3, and the properties were not being developed or operated by any actual physical activity upon the surface of any of the tracts. It is the contention of the Land Bank that the production from and the development and operation of the well on the Southeast Quarter of Section 8 constitutes actual production from and operation or development of Tract 1. The Land Bank argues that due to drainage of gas from under Tract 1 and its inclusion in the consolidated gas unit covering all of Section 8, its one-fourth mineral interest as to both Tracts 1 and 3 has been extended past the primary term. The Classens contend that to extend the primary term by production, operation or development, the produc tion must actually come from a well mouth located on one of the three tracts or that any operation or development must be physically carried out upon one of the tracts.
The only evidence introduced at the trial in addition to the stipulations and documents supporting those stipulations was the testimony of John R. Van Slyke on behalf of the Land Bank. Mr. Van Slyke, a consulting petroleum engineer, qualified as an expert and testified in the Friesen trial that the well located in the Southeast Quarter of Section 8 was actually producing gas from under Tract 1 through the well mouth located on the Southeast Quarter. A transcript of Mr. Van Slyke’s testimony from the trial in the Friesen case was introduced by agreement and stipulation in the trial of the present action. Therefore, the trial court did have before it the opinion of an expert that gas from Tract 1 was being produced through the well on other property in Section 8 which comprised the producing gas unit agreed to by all owners of mineral interests in the section and which was approved and authorized by the Kansas Corporation Commission. The Classens contend that all such testimony is immaterial and that absent production from a well mouth upon Tract 1, 2 or 3, and absent any physical development or operation on one of such tracts on April 25, 1961, the mineral interest of the Land Bank expired by its own terms as contained in the original deed reserving the mineral interest. The Classens rely upon our prior decisions in Dewell v. Federal Land Bank, 191 Kan. 258, 380 P.2d 379 (1963); Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970); and Smith v. Home Royalty Association, Inc., 209 Kan. 609, 498 P.2d 98 (1972). These cases were recently considered by this court in Friesen v. Federal Land Bank of Wichita, 227 Kan. 522. We need not repeat all that was said in Friesen, and suffice it to say we are of the opinion that Smith v. Home Royalty Association, Inc. and Friesen are controlling in this case insofar as Tract 3 is concerned and we affirm the trial court’s decision as to Tract 3. However, we deem it advisable to reconsider our prior holdings as they may affect Tract 1.
Defendant contends that the district court made a finding of fact that gas was actually being produced from under Tract 1 through the well on the Southeast quarter of the unit. The Land Bank bases its contention upon a statement in the trial court’s memorandum decision which reads:
“There is uncontradicted evidence from Defendants’ expert, Mr. Van Slyke to the effect that gas lying under tract 1 contributes to the whole production as it comes from the well mouth in the Southeast quarter of 8.”
As indicated above, the testimony of Mr. Van Slyke consisted of a transcript of his testimony in the Friesen trial. At the hearing on a motion for amendment of findings of fact and conclusions of law in the Friesen case, the court in commenting upon the Van Slyke testimony stated:
“I heard it all and I considered it all. And with all due respect to Mr. Van Slyke when I heard the testimony, I didn’t think it amounted to anything. But I didn’t ignore it.”
The expert testimony of Mr. Van Slyke was properly admitted but the weight to be given to it was to be determined by the trier of the facts. Considering the statements of the trial judge who heard the testimony and observed the witness, we do not believe that the statement in the memorandum decision rises to the level of a finding of fact which required the trial court or requires this court to find as a matter of law that production was being obtained from Tract 1 within the terms of the habendum clause of the original deed from the Land Bank to the Classens. Neither does it require a finding that Tract 1 was being operated or developed on April 25, 1961.
However, we do not consider that this disposes of this appeal. As previously indicated plaintiffs rely upon three cases from this court plus, presumably, our decision in Friesen.
The first of the cases which led to the rule of law which plaintiffs rely upon was Dewell v. Federal Land Bank, 191 Kan. 258. In Dewell the sole question before the court was whether a shut-in gas well, together with payment of shut-in royalty, would extend a term mineral interest beyond the primary term under a mineral reservation identical to the one in the instant case. We held:
“The payment of shut-in royalty is not the equivalent of ‘production’ or ‘being developed or operated.’ As the land was not being produced, developed or operated, the mineral interest was not perpetuated or extended beyond the primary term.” p. 263.
The next in the trilogy of cases was Stratmann v. Stratmann, 204 Kan. 658. In Stratmann 240 acres of land had been partitioned into three eighty-acre tracts; however, the minerals under all three tracts were not partitioned but were retained propor tionately by all the previous surface owners “for such a period of time as oil and/or gas or either of them is being produced in paying quantities from said real estate [the entire 240 acres].” p. 659. At the time of partition each of the three eighty-acre tracts was subject to a separate oil and gas lease. Production ceased upon the eighty acres in question but continued on the other property. Plaintiffs sought to quiet title to their eighty acres and terminate the defendant’s mineral interest therein. This court stated:
“It is generally held that where land held in common is divided by a decree in partition in which it is provided the mineral rights in the whole of the land shall remain undivided, the reservation reserves to the common owners the minerals in place under the land divided. (68 C.J.S., Partition § 120(b), p. 181./” p. 665.
The court went on to hold that production from any portion of the original 240 acres perpetuated the term mineral interests under all the property.
In the course of the opinion in Siratmann the court made the following statement about Dewell:
“In Dewell a term mineral interest under a half section of land was reserved in a deed. The reservation ran for a primary term of twenty years and as long thereafter as oil was produced from the premises. The interest was leased and the lease on this half section was unitized with leases on other land. Production was obtained on the other land. There were no producing wells drilled on the half section of land. The court held that production on the other land did not perpetuate the mineral interest on the half section beyond the primary term. To perpetuate the interest production had to come from the half section.” p. 663.
This statement expanded the decision in Dewell wherein the court merely held a shut-in gas well and payment of shut-in royalty did not constitute production, development or operation.
Next came Smith v. Home Royalty Association, Inc., 209 Kan. 609. Plaintiff Smith filed an action to quiet title to a quarter section of land in Stanton County against the defendant’s term mineral interest therein. The dispute was whether the term mineral interest created December 10, 1928, had been exténded beyond its primary term which ended December 10, 1949, by production commenced within the primary term on an adjacent quarter, both quarters being within a unitized leasehold. The court stated the question as:
“A conveys to B the oil, gas and other minerals under tract one for a term of twenty-one years and as long thereafter as oil, gas, or other minerals are produced from said land. During the definite term tract one is unitized with tract two for the production of oil and gas. Production is obtained from tract two within the definite term and production continued thereafter. In this factual situation, does production from tract two fulfill the production requirements in the original conveyance from A to B?” p. 611.
This court held that it did not, based upon the holding in Dewell as expanded by the statements in Stratmann. It is the generally accepted rule that, absent agreement to the contrary, a term mineral interest cannot be changed or altered by the terms of an oil and gas lease or a unitization agreement entered into between the term mineral owner and a third party lessee or by the holder of the reversionary interest and a third party lessee. The court quoted the following language from Dewell:
“The owner of a defeasance mineral interest cannot change the conditions by which the interest is to continue beyond the primary term, by any provision in an oil and gas lease to which the landowner is not a party.” p. 612.
We further stated:
“[T]he holdings in Dewell and Stratmann have become a rule of property in this state. The rule should not be changed in the absence of other controlling circumstances, even though logic might be effectively presented for a different holding.” p. 614.
In this day and age are there “other controlling circumstances” which dictate a departure from the rule of Smith? We think so. At the outset we wish to reaffirm certain basic principles which are not affected by our holding herein except as specifically hereinafter set forth.
1.) When a deed, or other instrument, creates a defeasible term mineral interest in two or more tracts of land production, development or operation (depending upon the particular wording of the habendum clause creating the term interest) on any one tract will extend the primary term as to all other tracts. Baker v. Hugoton Production Co., 182 Kan. 210, 320 P.2d 772 (1958).
2.) A deed or other instrument conveying oil and gas in place for a fixed term of years and so long thereafter as oil and/or gas is being produced from the property or the property is being developed or operated creates a base or determinable fee. Wilson v. Holm, 164 Kan. 229, 188 P.2d 899 (1948).
3.) The event which perpetuates the term of the mineral interest must be found in the instrument creating it. Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970).
Let us now turn to the question of whether our prior decisions in this area should be modified to the extent that when all or part of a term mineral interest is unitized for the production of gas (or oil in a proper case) with other land and production is obtained from a well or wells located on such other land, such production extends the term mineral interest in that portion of the land contained within the producing unit. We think they should.
It is now common knowledge that this tired old world of ours, and our country in particular, is faced with a frightening and progressive energy crisis due principally to a shortage of petroleum reserves. This country cannot now, and will not in the foreseeable future be able to, produce even the minimum requirements of oil and gas needed to preserve our existence. With every increase in production we suffer a corresponding decrease in our petroleum energy reserves. Under these severe conditions we feel that it is incumbent on all persons, including this court, to assist in the preservation and conservation of our natural petroleum resources including production methods which will minimize waste.
Pooling and unitization are basically conservation measures adopted either by forced regulation in some states or by voluntary agreement. Our Kansas Corporation Commission has the duty and authority to promote the conservation of our petroleum resources through the assignment of allowables based upon drilling and spacing units. The primary purpose of unitized operations is to permit proper and maximum development of the unit lands without reference to ownership boundaries and with a minimum of waste. These objectives may better be realized by the adoption of the rule that whenever a term mineral interest is voluntarily placed in a unit for the production of gas or oil and production is obtained on other land within the unit during the primary term, such production will extend the term mineral interest to the extent of the land and mineral interests included within the producing unit.
The adoption of such a position is. not only economically sound but morally correct in that all parties are treated fairly and equitably which will, in most cases, be advantageous to all mineral owners (term or fee) within the unit. For example, in the instant case if either the Land Bank of the Classens had refused to enter into unitization of Section 8, it might very well be that no well would have been drilled, to the disadvantage of all owners within the section. In addition, it would result in the even greater disadvantage to the general public from a failure to properly develop and produce the potential available. Our holding herein will tend to avoid the situation where the reversioner holds out on his agreement to unitize unless the lessee will agree to drill the well on other property in the unit in an attempt to assure the termination of the term mineral interest at the expiration of the primary term. Likewise, the holder of the term interest will not be placed in a position of insisting that the well be placed upon the property in which he holds the term interest. Either alternative might not be in the best interests of appropriate conservation and production of our resources. It appears to us that an individual mineral owner who enters into a unitization agreement with the hopes of sharing in the advantages must also bear the disadvantages inherent in such development.
The correctness of such a determination appears to have been recognized by the parties to this action. It has been stipulated that although the primary term of the mineral reservation of the Land Bank expired April 25, 1961, the Land Bank has continued to receive its proportionate share of the proceeds from the gas produced from the unit. These payments were made with the full knowledge, and presumably consent, of the plaintiffs until the filing of this action in March, 1978. It would appear that the parties themselves have long recognized the rule which we adopt today.
As pointed out in Smith the rulé in Oklahoma (Panhandle Eastern Pipe Line Company v. Isaacson, 255 F.2d 669 [10th Cir. 1958]), and Texas (South. Royalty Co. v. Humble Oil & Ref. Co., 151 Tex. 324, 249 S.W.2d 914 [1952]), is that production anywhere on the unit extends term mineral interests when any part of such term mineral interest lies within and is subject to the unitized operations. Considering our holding in this case, we see nothing to be gained by reviewing and comparing the various rationales of other states in arriving at their particular decisions. For those interested, we recommend 6 Williams and Meyers, Oil and Gas Law, § 960 et seq. (1977); 1 Myers, The Law of Pooling and Unitization, ch. 14 (2d ed. 1967); 5 Summers, Oil and Gas, ch. 29 (1966); Brock, The Effect of Unitization on Defeasible Term Interests, 26th Annual Institute on Oil and Gas Law and Taxation, p. 267 (1975).
To specifically illustrate the rule hereby adopted, we turn to the facts of the case at bar. Tracts 1 and 3, owned by the Classens, were both subject to a defeasible term one-fourth mineral interest of the Land Bank created in a single instrument for a primary term of twenty years from April 25, 1941, and so long thereafter", etc. Tract 1 was voluntarily placed in a 640 acre gas unit by the Land Bank and the Classens and gas production was obtained from other property within the unit during the primary term of the mineral reservation. We hold that such production extends the primary term of the mineral interest held by the Land Bank as to Tract 1 but not as to Tract 3, which was not included in the unit.
To the extent that the foregoing conflicts with Smith v. Home Royalty Association, Inc., and other prior decisions of this court, those decisions are disapproved.
Other points raised by the Land Bank were also raised and considered in Friesen and found to be without merit.
The judgment of the district court as to the Southwest Quarter of Section Five is affirmed and the judgment as to the Northwest Quarter of Section Eight is reversed. | [
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The opinion of the court was delivered by
Miller, J.:
An order changing the custody of a five-year-old boy from mother to father is the target in this civil appeal.
Plaintiff Deanna Hoffman and defendant Gregory Hoffman were married on June 4, 1972. A son, Alex, was born October 1, 1974. Deanna filed a petition for divorce; Gregory did not appear; and divorce was granted to Deanna on September 14, 1976. She was awarded custody of Alex.
Thereafter, Gregory married Pamela Hoffman, and established a home at Salina. Pamela’s three-year-old daughter by a previous marriage lives with them.
Deanna, with Alex in her custody, continued to occupy the Concordia home awarded to her in the divorce proceedings. Sometime after the decree was entered, Maynard Cooper moved in with Deanna and Alex. After a few months they moved to Wymore, Nebraska, where they were living at the time of the custody hearing. Deanna and Maynard Cooper were not married because Maynard’s divorce was not final; the briefs indicate that they were married while this appeal was pending.
The parties had difficulties over support payments and visitation. After several post-divorce hearings, Gregory filed a motion for change of custody on December 22, 1978. A hearing was held on April 17, 1979. The court found that Deanna’s home was an unfit home for Alex and ordered that custody be changed from Deanna to Gregory, subject to reasonable visitation by Deanna, with the reservation that Alex not spend extended periods, of time in Deanna’s home. Deanna appeals.
The first point raised is that the evidence was legally insufficient to support the court’s order changing custody. Deanna contends that the fact that she was living with a man to whom she was not married is not a sufficient reason to change custody, and that the evidence does not show sufficient change of circumstance to warrant a change of custody.
It is undisputed that Deanna and Cooper were unmarried and living together. Additionally, there was evidence that marijuana and other drugs are used in their home in Alex’s presence, and Alex has acquired an extensive vocabulary as to drugs and as to profanity. Testimony showed that Cooper attempted to deny Gregory visitation with Alex, that Cooper took Alex with him to a tavern late at night, and that there was a lack of discipline in the maternal home. There was also the familiar evidence that sometimes the child was dirty, was left alone, and was not given proper parental guidance.
Mr. Cooper has prior felony convictions for robbery and armed robbery in California; his parole was successfully completed just prior to the hearing. He was present throughout the proceedings but did not testify. Pamela Hoffman, however, did testify as to her interest in Alex and her willingness to provide a home and maternal care for him.
The basic legal principles applicable in child custody disputes between parents were recently stated and discussed by Chief Justice Schroeder in Simmons v. Simmons, 223 Kan. 639, 642, 643, 576 P.2d 589 (1978). The Chief Justice said:
“The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The court must determine which parent will do a better job of rearing the children and provide a better home environment. . . . The trial court may look at the availability and willingness of each parent to care for the children. . . .
“In order to insure that the interests of the children are fully protected from an adverse change of circumstances, K.S.A. 60-1610(a) vests the trial court with continuing jurisdiction to modify a custody order. Therefore, a decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. . . . However, when facts and circumstances change, custody may be changed. . . .
“Our court has repeatedly held the burden of proving a change in custody is warranted rests upon the movant. ... To sustain his burden of proof [the husband] did not have to prove [the wife] was unfit to have custody of the children. . . . The question of unfitness arises only when the custody dispute is between one parent and a third party. . . . Instead, [the husband] had to show a change in the parties’ circumstances since the entry of the original custody order. . . .
“The appellant also asserts the trial court abused the exercise of its sound judicial discretion in ordering a change in custody.
“Certain basic principles apply in determining an abuse of the trial court’s discretion. The question of a change of custody is addressed to the sound judicial discretion of the trial court and the appellate court’s review of the trial court’s determination is very limited. . . . The trial court is in the most advantageous position to judge how the interests of the children may best be served. . . . While an appellate court has only the printed page to consider, the trial court has the advantage of seeing the witnesses and parties, observing their demeanor, and assessing the character of the parties and quality of their affection and feeling for the children. . . . The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion.” (Citations omitted.)
In the case now before us, both Deanna and Gregory have established new homes with new mates since the divorce was granted. Their life styles have changed. The trial court had an opportunity to observe the parents and their new spouses in the courtroom, to hear and evaluate the testimony, and to weigh the evidence. There were many things of importance which the court considered in addition to the then unmarried status of Deanna and Cooper. The evidence of drug usage and its impact upon the child, Cooper’s prior felony record, attempted denial of visitation privileges, neglect of Alex’s health and clothing needs, lack of discipline, leaving the child unattended, and taking him to a tavern late at night, all support the trial court’s finding that the home was unfit. We find adequate substantial evidence as a basis for the trial court’s order, and we find no abuse of discretion.
Finally, appellant contends that it was error for the trial court to consider social histories and reports made by social agencies when her attorney was not given the opportunity to see the reports or to cross-examine the investigating officer.
At the close of the evidence, the trial judge announced that he had received the report of the social agencies but he had left them in his chambers, thinking counsel had received copies. Plaintiff’s counsel stated that he had not received a copy, but he made no objection to the trial court’s consideration of the reports, no request to read the report, and no request that the investigators be called as witnesses for cross-examination.
Objection to the reports was not made in the trial court. An issue presented for the first time on appeal will not be considered by this court. City of Salina v. Jaggers, 228 Kan. 155, 612 P.2d 618 (1980). The reports are in the record before us. The investigation as to Deanna’s home was made before she moved to Nebraska and is generally favorable to her. Any error in the consideration of the reports is harmless.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This is a homeowners insurance policy coverage case. Donald Harris sought damages for bodily injury resulting from shotgun wounds in an action filed against Roy and Ruth Richards as administrators of the Estate of Douglas Windle Hawley, deceased. The trial court granted the Richards’ motion for summary judgment, concluding that the policy did not provide coverage because (1) the shooting was not a covered occurrence, and (2) the intentional acts exclusion applied.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on motion of this court).
We find no error and affirm summary judgment.
Facts
At approximately 6:50 p.m. the evening of October 27, 1989, Donald Harris was seated in the cab of his pickup truck with Kimberly Hawley. Douglas Hawley, Kimberly’s ex-husband, fired two shotgun rounds into the back window of the pickup. Harris was on the driver’s side and Kimberly was on the passenger side of the cab. When Douglas fired the shots he could not have seen whom he was shooting at due to darkness. The pellets struck Harris on the right side of his face, causing facial scarring and blindness. Douglas walked around to the side door and fired a third shot, which killed Kimberly. He then killed himself.
Charles and Sharon Hawley, Douglas’ parents, were the named insureds on a homeowners liability policy issued by Farm Bureau Mutual Insurance Company (Farm Bureau). For purposes of the summary judgment motion, Douglas is considered to be an insured under the policy. Farm Bureau is not a party to the litigation.
Harris filed his petition on October 25, 1991, long after the four-month limit of the non-claim statute had run. See K.S.A. 1992 Supp. 59-2239(1). The defendants, Roy and Ruth Richards, are the administrators of Douglas’ estate. The trial court ruled that Harris’ claim against the estate is limited to any applicable insurance coverage. See K.S.A. 1992 Supp. 59-2239(2). Harris alleged that Douglas had intended only to shoot Kimberly. Harris did not specify whether his claims were based on negligence or battery.
The Richards argued that the fundamental nature of the underlying tort was that of a battery rather than negligence. Consequently, they asserted that K.S.A. 60-514(2), the one-year statute of limitations for battery, barred the claim, and they moved for dismissal. The motion was denied. The Richards cross-appeal the denial of their motion to dismiss.
Because we have affirmed the trial court’s analysis of the insurance coverage issue, we find it unnecessary to address the cross-appeal other than to indicate we find no error in the trial court’s ruling on the statute of limitations issue.
The Richards’ summary judgment motion asserted that there was no homeowners coverage because the shooting was not an occurrence under the policy and also was excluded under the “expected or intended” acts exclusion. Harris filed a memorandum in opposition to the motion, in which he stated that he essentially agreed with the Richards’ statement of uncontroverted facts. Harris also submitted additional proposed facts. These proposed facts were not supported by any record citations. The Richards’ reply emphasized Harris’ failure to comply with our summary judgment Rule 141(b) (1993 Kan. Ct. R. Annot. 133-34).
Harris’ Contentions on Summary Judgment
Harris contends that summary judgment was not proper because there remained issues of material fact to be resolved. He reasons that one can infer from the undisputed facts in the Richards’ memorandum in support of summary judgment that Douglas intended to shoot only Kimberly and unintentionally shot Harris. He believes one also can infer that Douglas shot Harris either because of mistaken identity or without knowing of Harris’ presence.
According to Harris, the factual question at issue concerns Douglas’ intent when he fired the shots into the back of the pickup truck. Harris believes that because intent is a key factual issue, summary judgment is improper.
Richards’ Contentions on Summary Judgment
The Richards explain that Harris’ assertion that Douglas believed Kimberly was the only person in the truck cannot be inferred from Harris’ uncontroverted facts and has no basis in the record. They observe that there is no evidentiary basis for the statement that Douglas subjectively intended to injure only Kimberly. They maintain that under certain circumstances, Kansas and other jurisdictions have held that in the insurance policy context, intent to injure can be inferred as a matter of law. Consequently, they suggest that the central question in the case at bar is whether Douglas’ intent to injure Harris can be inferred as a matter of law, not whether Douglas had actual intent to injure.
Our review of the record and of the parties’ contentions convinces us that summary judgment was a proper procedural vehicle for resolving the case at bar. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed).
Was the Shooting an “Occurrence” Under the Policy?
The resolution of the instant action requires our interpretation of a homeowners insurance policy; consequently, the acknowl-edgement of our established rules of construction that are applicable to the case at bar is appropriate. We have frequently observed that “[á]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy.” Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 1, 660 P.2d 1374 (1983).
The Farm Bureau policy at issue provided coverage for bodily injury caused by an occurrence: “We will pay all sums arising out of any one loss which an insured becomes legally obligated to pay as compensatory damages, because of bodily injury or property damage caused by'an occurrence to which this coverage applies.” Was the shooting of Harris an occurrence under the policy? The term “occurrence” is defined in the definitions section. “Occurrence means an accident, including continuous or repeated exposure to conditions.” “Accident” is not defined in the policy.
Harris asserts that the term “accident” is ambiguous as applied to the facts in the case at bar. He contends that when the policy is construed as a whole, it would not make sense to define accident so as to exclude the intentional acts of the insured because such an interpretation would render the intentional injuries exclusion “totally superfluous.” Consequently, he claims the fact the term “accident” is ambiguous justifies construing the term against the insurer. According to Harris, when the term “accident” is construed against the insurer, it becomes clear that his injuries were the result of an accident and, as such, were a covered occurrence under the policy.
Harris observes that the resulting injury which ensues from the volitional act of an insured is still an “accident” within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur, citing Quincy Mutual Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84, 469 N.E.2d 797 (1984). Harris appears to be claiming that if intentional acts are not accidents, virtually no accidents would be covered under such a policy because all human acts, at some level, are intentional. He maintains that his injuries were caused by an accident and were, therefore, the result of an occurrence covered under the policy.
The insured’s intent to injure can be inferred when the resulting injury is a natural and probable consequence of the insured’s act. See Bell v. Tilton, 234 Kan. 461, Syl. ¶ 2, 674 P.2d 468 (1983). Douglas fired two shotgun blasts into the cab of Harris’ pickup when he knew it was occupied. The natural and probable consequence of this act was that anyone occupying the cab would be injured. The shooting of Harris was not an accident under the Farm Bureau policy.
Harris’ reliance on Quincy is misplaced. Quincy appears to employ the specific intent to injure rule. We do not follow the specific intent rule. Rather, we have adopted the natural and probable consequences test. See Bell, 234 Kan. 461, Syl. ¶ 2.
The term “occurrence” defines coverage under the Farm Bureau policy. The burden is on Harris to demonstrate that his losses fall within the scope of the policy. See Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 491, 608 P.2d 903 (1980). Harris failed to controvert any of the Richards’ facts.
We have explained that
“[t]he word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793 (1919).
See Maryland Cas. Co. v. Mike Miller Companies, Inc., 715 F. Supp. 321, 323 (D. Kan. 1989).
We believe that the question of coverage relates to Douglas as the insured rather than to Harris, the victim. We agree with the learned trial judge’s observations:
“It would seem to me that where one fires a shotgun twice through the back of a pickup truck, knowing that some person is in the truck, but not being able to see who it is because of darkness, the injury caused to a person in the truck though claimed to be unintended, is not an accident.”
Intentional Injury Exclusion
The Farm Bureau policy contained the following exclusion: “[W]e do not cover ... 5. Bodily injury or property damage expected or intended by an insured.”
Harris asserts that his injuries were not the natural and probable consequence of Douglas’ intended actions. He contends that Douglas had no reason to believe that anyone other than Kimberly was in the pickup. Harris claims that his shooting was either due to mistaken identity or was an unintentional and unforeseen injury to an innocent third party. He emphasizes that no similar fact situation has been decided under Kansas law. Harris suggests that courts in other jurisdictions have nearly uniformly held that an intentional injury exclusion is inapplicable under either the mistaken identity or innocent bystander theories.
Harris asserts that darkness contributed to Douglas’ alleged mistake. Harris has not come forward with any type of proof in support of either his mistaken identity or innocent bystander theories. It seems unlikely, given the fact Harris owned the pickup, that Douglas would not have expected Harris to be present. Because applicable Kansas case law exists, there is no reason for us to focus on the law of other jurisdictions. Harris has not taken the position that we should adopt the specific injury test.
The natural and probable consequences approach has been developed in a series of five cases: Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968); Spivey v. Safeco Ins. Co., 254 Kan. 237, 865 P.2d 182 (1993); Bell, 234 Kan. 461; Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan, 681, 512 P.2d 403 (1973); and Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982).
In Spruill, the insured, Spruill Motors, Inc., had performed work on Rounkles’ vehicle. Rounkles drove the vehicle home without paying for services performed and garage personnel attempted to recover the vehicle. Rounkles saw his vehicle being towed away and ran up to it in an attempt to open the door, at which time his foot was run over. The policy’s definition of occurrence limited its coverage to “bodily injury or property damage neither expected nor intended from the standpoint of the insured.” We held that the policy did provide coverage for Spruill Motors. In so doing, we made the following statements: “Under this policy, coverage is avoided only when an act results in an intentional injury. An intentional act may result in an unintended injury.” 212 Kan. at 687. Coverage was denied by the insurance carrier in Spruill because Rounkles’ petition alleged only intentional torts, praying for punitive as well as compensatory damages. We reasoned that coverage must be determined by a good faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation. 212 Kan. at 686. If knowledge that is reasonably ascertainable reveals that the acts may not have been intentional, coverage may exist, and the duty to defend arises. The act of taking Rounkles’ truck was intentional, but the “taking” was not the act which caused Roun-kles’ injuries. The injuries were caused, if liability attaches, by the manner of moving the truck by Spruill’s employees. 212 Kan. at 686-87.
Casualty Reciprocal Exchange was a declaratory judgment action in which the policy excluded coverage for bodily injury “expected or intended from the standpoint of the insured.” 7 Kan. App. 2d at 719. The insured pointed a gun at another individual and shot him. Citing the Spruill case, the insured attempted to argue that coverage should be provided because there was no evidence that the shooter intended plaintiff’s injury. The Court of Appeals distinguished the facts in Spruill and emphasized Rankin. 7 Kan. App. 2d at 720-21.
In Bell, three boys developed a game involving a BB gun. Two of the boys were in a hayloft and the third, the insured, was on top of an adjacent shed. The two boys in the loft would run back and forth across the open door while the insured shot at them. One of the boys was injured when he peeked around the side of the hayloft door and the insured shot him in the face. The insured’s liability policy excluded coverage for “ ‘bodily injury or property damage which is either expected or intended from the standpoint of the insured.’ ” 234 Kan. at 462. The insured argued that coverage should be provided because he did not have the specific intent to injure the plaintiff when he fired in plaintiff’s direction. We found that there was no coverage. We endorsed the Casualty Reciprocal Exchange language that an insured is presumed to intend the natural and probable consequences of his or her acts. 234 Kan. at 470-72.
The uncontroverted facts in the case at bar show that Douglas fired two shotgun blasts into the cab of the pickup truck when he knew it was occupied. Harris’ injuries are to be viewed as the natural and probable consequences of Douglas’ act.
We recently observed in Spivey that “[a] liability provision in an insurance contract excluding coverage for injuries expected or intended from the standpoint of the insured excludes from coverage an injury which the insured intentionally caused.” 254 Kan. 237, Syl. ¶ 5. Spivey also reiterates our analysis of the natural and probable consequences, test as discussed and applied in Bell. 254 Kan. at 245.
Harris uses the rules for summary judgment in an attempt to assert that certain inferences can be drawn from the facts concerning the mistaken identity or innocent bystander scenarios. However, the rules of summary judgment do not afford a party with such creative license. There must be facts in the record from which the inferences can be drawn. The record is devoid of any such facts.
Harris’ injuries were a natural and probable consequence of the shooting.
Affirmed.
Abbott, J., not participating.
Prager, C.J. Retired, assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
Edwin Welliver appeals the district court’s denial of his K.S.A. 60-260(b) motion for relief from a default judgment of divorce because: (1) he was improperly served out of state with process by a corporation appointed as a special process server, (2) the decree of divorce and a subsequent nunc pro tunc order were void for the wife’s failure to comply with Supreme Court Rules 118 (1993 Kan. Ct. R. Annot. 119) and 131 (1993 Kan. Ct. R. Annot 127) and K.S.A. 60-255; and (3) the district court abused its discretion in denying his K.S.A. 60-260(b) motion for relief from the judgment.
Rachel Welliver filed for divorce in Johnson County, Kansas, on October 9, 1992. Her husband Edwin was residing in Mission, Texas. The district court appointed a corporation, Pronto Civil Process and Messenger Service (Pronto), as special process server on October 27, 1992. The affidavit of service reflected that David Barker, on behalf of Pronto, had served Edwin, in person, with the “citation (summons)” on November 5, 1992, at Oleander Acres RV Park in Hildalgo County, Texas. The return of service was filed November 16, 1992.
Edwin did not file an answer. A trial was held in the district court on December 21, 1992. Edwin did not appear. The district judge found Edwin in default and, after a hearing, granted Rachel the divorce and awarded her sole custody of the children. Edwin was given unspecified reasonable visitation. Edwin was ordered to pay child support of $815 per month and maintenance of $500 per month for 36 months. Rachel was given a judgment of $1,530 for temporary child support ordered prior to the decree of divorce, which had not been paid. Edwin was also ordered to pay for the health insurance for the children and any medical bills not covered by insurance.
The court divided the marital property and awarded Rachel a judgment of $200,000 to equalize the property division between the parties. The court also ordered Edwin to be responsible for a variety of specified debts totalling $22,769, as well as debts he had incurred since the separation, debts associated with property set over to him, and high school tuition for one of the children. A subsequent nunc pro tunc order was filed which clarified that withholding from Edwin’s income should take effect immediately to enforce the support order.
On January 20, 1993, Edwin filed a 60-260(b) motion for relief from the default judgment. At the hearing on his motion, Edwin’s counsel argued that because out-of-state service by a corporation was invalid, the court lacked personal jurisdiction; the default judgment was void because he was not given notice of the hearing; and he was'entitled to relief because the judgment was entered by mistake, inadvertence, surprise or excusable neglect, fraud, and for any other reason justifying relief.
The district court denied the motion, stating:
“After due consideration to the argument in this case, it would appear to me there is no irregularity in the case and your motion to set aside the judgment should be denied. Such is the order.”
Edwin appealed the district court’s denial to set aside the default judgment to the Court of Appeals. This court granted Edwin’s motion to transfer the case to its docket.
OUT-OF-STATE SERVICE BY A CORPORATION
Service of process is a.method of formally commencing an action by giving the defendant notice of the action. The person named as defendant normally does not become a party to the action until served with the summons. Upon the filing of a petition, the clerk of the court issues a summons for service upon each defendant in accordance with K.S.A. 1993 Supp. 60-303. K.S.A. 1993 Supp. 60-301. “All process issued for service from any court within the state may be served anywhere within the territorial limits of the state and, when authorized by law, may be served outside this state.” K.S.A. 1993 Supp. 60-311. The court obtains jurisdiction of the defendant through service of process. The summons informs the defendant that the defendant is required to serve upon the plaintiffs attorney and the court a pleading to the petition within 20 days after service of the summons. If the defendant fails to file a pleading within the 20 days after being served, a judgment by default can be taken against the defendant for the relief demanded in the petition. See K.S.A. 1993 Supp. 60-212(a).
After Edwin was served, he failed to file a pleading prior to the expiration of the 20 days, and a default judgment was entered after the hearing. In an attempt to obtain relief from the default judgment entered by the district court, Edwin claims the district court lacked jurisdiction over him because a corporation was improperly appointed as a special process server. He contends that because service was improper, the judgment is void. A judgment is void if the court that rendered it lacked personal or subject matter jurisdiction. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 588 P.2d 101 (1976). A void judgment is a nullity and may be vacated at any time. Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 496, 781 P.2d 1077 (1989), cert. denied 495 U.S. 932 (1990).
Edwin first argues that K.S.A. 1993 Supp. 60-303(c)(3) limits appointments of special process servers to “persons,” which excludes corporations. Edwin asserts that because a corporation cannot be appointed as a special process server, service by the corporation was not proper, and the resulting judgment is void ab initio because the court never obtained personal jurisdiction over him.
Edwin points out that whether a corporation is a person is often addressed in statutes on an article-by-article basis, e.g., K.S.A. 2-1220(a), which defines a person in an act concerning fertilizers as “any individual, any association of persons or any corporation.” He points out that no such definition is contained in the article concerning service of process in Chapter 60. He also notes that while the appendix to Chapter 60 does not contain any official forms for a motion to appoint a special process server, the appendix to Chapter 61, limited actions, does contain a form for K.S.A. 61-1803(c)(3) which has language identical to 60-303(c)(3) indicating that a special process server must be a person. See K.S.A. 61-2605, Form No. 2. To further support his argument that corporations cannot be appointed as special process servers, Edwin also points out that Chapter 3 of Article 60, in several instances, specifically draws a distinction between an individual and a corporation; e.g., K.S.A. 1993 Supp. 60-305a and K.S.A. 1993 Supp. 60-306 provide that any individual, partnership, association or corporation may file an instrument or certificate appointing an agent to receive service. We find no support for his argument in these statutes. These statutes are not applicable to the issue because they concern appointment of persons to receive process for a corporation, not whether a corporation may serve process.
Edwin also observes that the legislature often expressly defines the term person to include both natural persons and corporations. We note there are at least 25 separate statutes that define person as including both natural persons and corporations, within the context of the specific act involved. See, e.g., K.S.A. 1993 Supp. 8-126(m) (vehicle registration); K.S.A. 60-3320(3) (Unifoi'm Trade Secrets Act); and K.S.A. 82a-1402(c) (Kansas Weather Modification Act).
Rachel counters that corporations are generally considered as persons. Rachel notes that K.S.A. 1993 Supp. 60-303 does not mandate that the special process server appointed by the court be a “natural person.” Referring to 18 Am. Jur. 2d, Corporations §§ 63-65, she observes it has long been held that a corporation is considered a person under the law. She reasons that if the legislature meant to limit the appointment of process servers to natural persons, the restriction on those persons who are authorized to serve subpoenas would not need to be further limited to “any other person who is not a party and is not less than 18 years of age.” Rachel concludes that the legislature has clearly expressed that process servers should be freely appointed. She notes that in statutes where the identity of the subject of process is a natural person, the legislature has clearly denoted that person as an “individual.” See K.S.A. 1993 Supp. 60-304(a). We note, in support of Rachel’s argument, that in Vernon’s Kansas Statutes Annotated, the author’s comments following K.S.A. 60-303 suggest that appointment of special process servers should be freely made whenever substantial savings in travel expenses or other reasons of convenience would result. 4 Vernon’s Kansas C. Civ. Proc. § 60-303, Comments (1965).
Neither party cites a case from any jurisdiction that specifically addresses whether a corporation can be appointed as a special process server.
This court, in Mariadahl Childrens Home v. Bellegarde School Dist., 163 Kan. 49, 180 P.2d 612 (1947), discussed whether the use of the term person in a statute includes a corporation. G.S. 1935, 72-1046 (1945 Supp.) established that the residence where a student resided with a parent, guardian, or other person determined whether a student could attend school in that district. The school district’s contention was that the plaintiff, an incorporated children’s home, was not a person and was not entitled to have its wards attend school in' the Bellegarde school district. The Mariadahl court felt this point was not “well taken” because the word person, dating back to early English law, included both natural persons as well as artificial persons, i.e., corporations. The court also noted the corporation code stated that corporations “shall have the power and capacity possessed by natural persons to perform all acts within or without this state,” and that under our statutes (G.S. 1935, 77-201 Thirteenth and G.S. 1935 17-3001 [1945 Supp.]) corporations organized under the laws of this state have the capacity possessed by natural persons to do the things authorized by their charters. 163 Kan. at 53. The Mar-iadahl court found that a nonprofit, benevolent, and charitable corporation, organized under the laws of this state to establish and maintain an “orphan home,” and which maintained a home for such children within a school district of this state, properly came within the class of “a person who is a resident” of such district.
The appointment of special process servers is governed by K.S.A. 1993 Supp. 60-303(c)(3). Under that statute, a subpoena may be served by a sheriff within the sheriffs county, by the sheriffs deputy, by an attorney admitted to the practice of law before the Supreme Court of Kansas, by some person specially appointed as a process server by a judge or clerk of the district court, and by any other person who is not a party and is not less than 18 years of age. Process servers shall be freely appointed and may be authorized either to serve process in a single case or in cases generally during a fixed period of time.
K.S.A. 1993 Supp. 77-201 lists the rules that are to be observed when construing a statute, “unless the construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” Subsection Thirteenth of that statute states that person may be extended to bodies politic and corporate. In The North Missouri Railroad Company v. Akers, 4 Kan. *453, *470 (1868), we determined the provisions of what is now 77-201 Thirteenth apply to the code of civil procedure. We also note the Kansas Code of Civil Procedure, K.S.A. 60-101 et seq., is to be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding. K.S.A. 60-102.
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.” Land Grant Railway v. Com’rs of Coffey County, 6 Kan. 245, 253 (1870). A corporation has no power except that conferred by law. Scott v. Bankers’ Union, 73 Kan. 575, 584, 85 Pac. 604 (1906). Treating corporations as persons is not repugnant to the context of K.S.A. 1993 Supp. 60-303 or inconsistent with the intent of the legislature. Corporations are persons within the context of 60-303(c) and can be appointed as special process servers.
OUT-OF-STATE SERVICE
Edwin’s next contention is that the December 21, 1992, decree of divorce and the January 5, 1993, nunc pro tunc order are void because he was improperly served out of state by a process server, not by an officer of Kansas or Texas as required by K.S.A. 1993 Supp. 60-308(a)(2). Edwin notes that K.S.A. 1993 Supp. 60-303(a) states that methods of out-of-state service of process are set out in K.S.A. 1993 Supp. 60-308, and amendments thereto. He claims that because he was not properly served with notice of the Kansas action in Texas, the district court did not have jurisdiction to enter a decree of divorce to Rachel.
Under our statutes, process servers are to be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time. A process server appointed pursuant to K.S.A. 1993 Supp. 60-303(c)(3) may make the service anywhere in or out of state. K.S.A. 1993 Supp. 60-308(a)(2)(A) states that the service of out-of-state process shall be made “in the same manner as service within the state, by any officer authorized to make service of process in this state or in the state where the defendant is served.”
Edwin claims that K.S.A. 1993 Supp. 60-308(a)(2) requires that out-of-state service of process be “by any officer authorized to make service of process” in Kansas or by an officer of the state in which service is being made. He argues that because Pronto is not an “officer” of Kansas or Texas, service by Pronto was improper and the decree of divorce entered by the Kansas court was void.
Edwin cites two cases for support. The first case, Steele v. City of Wichita, 250 Kan. 524, 525, 826 P.2d 1380 (1992), is a declaratory judgment action brought by persons appointed as special process servers to determine if they could serve all forms of process, including writs of execution and orders of attachment. This court held that 60-303(c)(3), by referring to “process,” en compassed all forms of process and it was not limited to summonses, petitions, and attached documents.
Howev.er, the broad statement of 60-303 was narrowed by K.S.A. 1993 Supp. 60-2401 and K.S.A. 60-706, which deal with specific forms of process, respectively, writs of execution and orders of attachment. Plaintiffs in Steele argued the term “officer” as used in 60-2401 and 60-706 included special process servers who had been appointed by a district court. The Steele court noted that 60-706 and 60-2401 make a distinction between service of process and execution, whereas 60-303 only refers to service of process. The Steele court then examined statutes in Article 8 of Chapter 19, which define the authority of sheriffs and other officers who are authorized to seize property when serving writs of execution and orders of attachment. The court held that 60-303(c)(3) authorizes special process servers only to serve process, i.e., the delivery of process, and does not authorize the general process, servers appointed under 60-303 to execute on or to attach property.
At the time of the Steele decision, 60-706 and 60-2401 required service and execution of writs of execution and orders of attachment to be made by sheriffs or persons authorized to perform the duties of a sheriff. K.S.A. 1993 Supp. 60-303(c)(3) now states “[a]ll persons authorized under this subsection to serve, levy and execute process shall be considered an ‘officer as used in K.S.A. 60-706 and 60-2401 and amendments thereto.” The amendment which expanded the class of persons allowed to levy and execute process followed the Steele decision and presumably was a legislative response to Steele.
The second case cited by Edwin is Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984). In Hall, the Court of Appeals addressed the import of a previous version of 60-308 which set out the procedure to obtain service out of state. Hall was injured in Kansas. She filed her personal injury suit, and a special process server was appointed to serve process on Quivira, a corporation. Service was made on Quivira in Missouri. The trial court quashed the service and dismissed the action because the special process server appointed by the district court was not an officer of Missouri or Kansas as required by the version of 60-308 then in effect. The Court of Appeals affirmed the district court’s actions because the out-of-state service of process was made by a process server not authorized to serve process in the state where service occurred.
Rachel points out that Edwin fails to note that the Hall court continued its discussion of out-of-state service by indicating that the 1982 legislature had amended 60-303. The Court of Appeals observed that Judge Gard had commented in 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-303 (1983 Supp.), that the 1982 amendment of 60-303 extended the power of the special process servers appointed by Kansas courts to serve process either inside or outside of the state of Kansas. Rachel asserts Edwin has failed to note that Hall supports her position that a corporation can be appointed to serve process out of state because the 1982 amended statute was in effect when she filed this action for divorce.
Rachel claims that K.S.A. 1993 Supp. 60-308(a)(2) states that service out of state can be made by those authorized to serve process within the state or by any officer authorized to make service of process in this state or any officer authorized to make service of process in the state where the defendant is served. She notes the intent of the legislature in the first instance is to be determined from the clear and unambiguous words used by the legislature. The courts are to give the language of statutes their commonly understood meaning, and it is not for the courts to determine the advisability or wisdom of the language used. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983). Rachel states that from a review of 60-308(a)(2), it is apparent that service of process outside the state may be made by a corporation appointed as a special process server.
We agree with Rachel’s position. K.S.A. 1993 Supp. 60-303(c)(3) provides that “[p]rocess servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time.” A process server appointed pursuant to 60-303(c)(3) may make the service anywhere in or out of state. K.S.A. 1993 Supp. 60-308(a)(2) provides that service out of state can be made (1) by those authorized to serve process within this state, (2) by any officer authorized to make service of process in this state, or (3) by any officer authorized to make service of process in the state where the defendant is served. Edwin was properly served with process in Texas and was subject to the jurisdiction of the Kansas court.
FAILURE TO COMPLY WITH SUPREME COURT RULES 118 AND 131 AND K.S.A. 60-255
Supreme Court Rule 118(d) (1993 Kan. Ct. R. Annot. 119), pleading of unliquidated damages, requires notice prior to issuing a default judgment in any action involving unliquidated damages in excess of $50,000. Edwin claims this action is within the ambit of the rule. Rachel contends a divorce action is not covered by Rule 118 because no damages were being sought or awarded. We agree. The matters in controversy in a divorce action are not “damages.” Divorce and maintenance actions are controlled by K.S.A. 60-1601 et seq. Rule 118 simply does not apply.
Edwin next notes that Supreme Court Rule 131(b) (1993 Kan. Ct. R. Annot. 127) requires at least seven days’ notice prior to a hearing or trial and claims he did not receive such notice. He argues that because Rachel did not address this argument in her brief, she has conceded Rule 131(b) was violated.
Rule 131 states:
“(a) If any party seeks the hearing of any motion on a required day of court and it is not a motion which may be heard ex parte, or if the judge sets a hearing on this day of court, notice of the hearing shall be given to all parties affected either by the party, or by the clerk at the direction of the judge, not less than seven (7) days prior to the date of hearing.
“(b) Matters set for hearing or trial on other days shall be at the discretion of the judge and with not less than seven (7) days notice to the parties affected. If the matter is urgent, notice shall be given as is reasonable and possible under the circumstances.”
Rule 132 (1993 Kan. Ct. R. Annot. 127), however, allows the court to set the time for the hearing at its discretion in cases involving default judgments. Default judgment may be obtained pursuant to K.S.A. 60-255, which states:
“Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. But no judgment by default shall be entered against a minor or incapacitated person unless represented in the action by a guardian, conservator or other legally authorized representative who has appeared in the action, or by a guardian ad litem appointed by the court. If the party against whom judgment by default is sought has appeared in the action, he or she (or, if appearing by representative, his or her rep resentative) shall be served with written notice of the application for judgment at least three (3) days prior to tire hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the state.”
K.S.A. 60-255 provides for notice of the hearing if the defendant has made an appearance. The summons served upon Edwin informed him that if he failed to plead within 20 days of service, a default judgment could be entered. Edwin never made an appearance in this matter until he filed his 60-260(b) motion to set aside the default decree of divorce. Under the circumstances, Supreme Court Rule 132, not Rule 131, applies.
Edwin also argues child support orders entered without notice are voidable, citing In re Marriage of Thompson, 17 Kan. App. 2d 47, 832 P.2d 349 (1992). The case cited by Edwin does not apply. The judgment in that case was voidable because the notice required by K.S.A. 60-255(a) was not given. In this case, lack of notice was not a problem. Edwin was properly notified of the pending divorce, and the decree of divorce entered by the district court is not voidable.
DENIAL OF THE MOTION FOR RELIEF FROM JUDGMENT
A ruling on a motion for relief from a final judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. In the absence of a showing of abuse of discretion, an appellate court will not reverse the trial court’s order. Bazine, 245 Kan. at 495. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. See Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
Edwin sought relief below under four separate subsections of K.S.A. 60-260(b), but on appeal frames his request for relief under (b)(6), i.e., for “any other reason justifying relief from the operation of the judgment.” He notes a substantial amount of property was involved, including $200,000 as equalization of the division of property and $19,500 in maintenance. He contends that the failure of the court to make a record of the proceedings and the documentary evidence that would support its judgment requires relief under K.S.A. 60-260(b)(6). He claims the denial of his motion for relief from judgment was an abuse of discretion because it was arbitrary and capricious.
Rachel counters that although default judgments are ordinarily not preferred, they are necessary if one party “ ‘frustrates the orderly administration of justice.’ ” Bazine, 245 Kan. at 495. Rachel asserts that Edwin, after receiving notice of the proceedings, failed to respond and should not now be able to reopen the matter. She also notes Edwin is not expressly arguing the division of property and other awards are inequitable, only that the court erred procedurally.
In Bazine, after the defendant’s third motion to extend time to file an answer to March 5, 1987, the bank moved for a default judgment. Without ruling on either motion, the court set the trial for March 23, 1987. The defendants did not file their answer by March 5, 1987. On March 23, 1987, the trial date, a snowstorm prevented the judge from reaching the courthouse. The bank’s attorney appeared and found no one in the courtroom. The bank’s attorney notified the judge by phone that none of the defendants had appeared for trial, and in an ex parte hearing later that day the court granted default judgment in the amount of the note. The defendants subsequently filed a motion for relief from the default judgment. One of the defendants, who was a county employee and was in the courthouse at his job but who did not appear in the courtroom, later claimed to have had the answer ready to file at the beginning of the trial. The defendants’ motion for relief was denied by the district court. The defendants argued on appeal that an award of their property without a hearing was a denial of due process.
This court noted that due process is not offended by an award sans hearing where the default judgment is entered for failure to answer within tire required time frame and proper service has been made. The court observed:
“While there is a need to achieve finality in litigation, judicial discretion must not achieve that end in disregard of what is right and equitable under the circumstances. Defaults are not favored in law but become necessary when the inaction of a party frustrates the orderly administration of justice. In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits.” Bazine, 245 Kan. at 495.
This court found that the dictates of due process and equity had been met. The defendants had failed to file their answer within the time frame they agreed to. Due to their lack of answer, there was no need for a hearing, the judgment was not void, and there was no fraud. Bazine, 245 Kan. at 496-97.
In this case, proper service was made, and Edwin failed to file an answer within the required time frame.
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The opinion of the court was delivered by
Holmes, C.J.:
This is an appeal by Kathleen Williams, the natural mother of Nolynn Glendon Williams, a minor, from an order of the district court denying a petition to terminate a voluntary guardianship established for Nolynn Glendon Williams. The guardian, Cindy Hawley, opposed the petition to terminate the guardianship. We reverse.
The controlling facts are not seriously disputed. For simplicity and clarity, Kathleen Williams, the natural mother, petitioner and appellant, will be referred to as Kathleen; Cindy Hawley, the respondent guardian and appellee, will be referred to as Cindy; and the minor child and ward will be referred to as Nolynn.
Kathleen is the natural mother of Nolynn, born in Wichita on August 28, 1991. It is alleged that Sonny Garrett is the probable father of Nolynn; however, he has not assumed any responsibility for Nolynn and has not been a party to any of the guardianship proceedings. Cindy and Kathleen were longtime friends and Kathleen sought her help in babysitting with Nolynn. Cindy began babysitting with Nolynn within three weeks of his birth and by December 1991 was essentially caring for him full time. Kathleen was experiencing financial and emotional problems during this time, and in January 1992 she and Cindy agreed that Cindy should be appointed guardian of Nolynn. At that time, Cindy consulted a Wichita attorney, but the petition for guardianship was not actually prepared and signed until late in June 1992.
In the meantime, Kathleen, who describes herself as an independent contractor doing remodeling work, moved to Iowa to pursue an employment opportunity. She made periodic visits to Wichita but her visitation with Nolynn was sporadic at best. In late July 1992, Kathleen moved back to Wichita and visitation was resumed on a more regular basis.
On October 19, 1992, Nolynn was admitted to St. Francis Medical Center in Wichita where he was diagnosed with a rare kidney disease known as hemolytic uremic syndrome (HUS). He subsequently was transferred to Children’s Mercy Hospital in Kansas City, Missouri, where Cindy stayed with him until his release on November 22, 1992. It appears that HUS is an ongoing physical problem and Nolynn requires a strict diet and regular medication; he will probably require dialysis treatment in the future.
Conflict developed between Kathleen and Cindy, and on November 24, 1992, Kathleen filed a petition to terminate the guardianship and to have Nolynn returned to her care. In the original petition for guardianship filed June 29, 1992, it was alleged, inter alia:
“That Nolynn Glendon Williams is in need of appointment of a guardian for reason that he is a minor child and the Petitioner [Kathleen] of said child is unable at the present time to give adequate care and maintenance of said child.”
The petition for guardianship was heard by the. court the same date it was filed, and Cindy was appointed guardian as requested by Kathleen. There were no allegations or contentions that Kathleen was not a fit person, and the guardianship was established by agreement of the parties. If there was any evidence or testimony presented to the court at the time, it has not been included in the record on appeal. Kathleen testified at the hearing for termination of the guardianship that it was her understanding that the guardianship was necessary to allow Cindy to have the right to seek medical care for Nolynn.
In the petition to terminate the guardianship, Kathleen alleged that the original guardianship was sought because “she was temporarily unable to care for her son” and that she was “once again able to provide for the care of the minor ward [Nolynn].” While the answer filed by Cindy denied that Kathleen’s inability to care for Nolynn was temporary and that Kathleen was once again able to provide for him, there were no allegations that Kathleen was an unfit mother or that she was unfit to have the care and custody of Nolynn. The answer did allege that it would be in Nolynn’s best interests for the guardianship to be continued.
Kathleen’s petition for termination of the guardianship was heard by the district court on February 5, 1993. There was considerable testimony about the lifestyles of Kathleen and Cindy, their plans for the future, and their respective abilities to provide the necessary physical, emotional, and medical care needed by Nolynn. A review of all the testimony reveals that there has been a bonding between Nolynn and Cindy and her husband Mel Hawley, that Cindy and Mel are devoted to Nolynn, and that they sincerely desire to retain custody and control of Nolynn. It also appears that Kathleen, despite numerous problems, loves her son and also desires his care and custody.
In closing arguments before the trial court, Cindy’s counsel did make reference to Kathleen’s fitness to take Nolynn back and care for him. However, the principal thrust of the argument was to the effect that it would be in Nolynn’s best interests to remain with Cindy. The trial judge correctly noted in his statement from the bench that under the pleadings and record in the case Kathleen’s fitness was not an issue. The principal thrust of Kathleen’s argument was that the parental preference doctrine, long recognized in Kansas, should apply. In closing the proceedings, the court directed counsel to submit proposed findings and conclusions on the issue of whether the parental preference doctrine should apply or whether the best interests of the child test should be applied as an exception to the parental preference doctrine.
Following the submission of the requested findings and conclusions, the court accepted the proposed findings of fact and conclusions of law submitted by Cindy and denied termination of the guardianship. The court ruled that its decision was controlled by In re Marriage of Criqui, 14 Kan. App. 2d 672, 798 P.2d 69 (1990), and that Kathleen “must show not only that she is fit, but also that the change of custody materially promotes the child’s best interests and welfare.” The court then concluded: “In the present case, Kathleen Williams, has failed to cany her burden to show that a change of custody would materially promote the welfare of her minor son, Nolynn Glendon Williams.”
Kathleen appealed to the Court of Appeals, and the case was transferred to this court pursuant to K.S.A. 20-3017. The issue before the court is whether the district court erred in ruling that a parent seeking the termination of a voluntary guardianship must prove (1) that he or she is a fit parent and (2) that a change of custody would materially promote the child’s best interests and welfare.
Kathleen contends on appeal that the district court erred in applying the rule of law recognized .in Criqui and maintains that the Court of Appeals in that case failed to properly apply the parental preference doctrine. Therefore, she asks that we overrule Criqui and terminate the voluntary guardianship established for Nolynn. In the present case, the trial court was of the opinion that Criqui was controlling and applied to the facts here.
The trial court made the following conclusions of law:
“(A) Kansas law has long recognized that the Parental Preference Doctrine provides that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against others who have no permanent or legal right to their custody.
“(B) In cases where a nonparent has been granted the legal and physical custody of the children, the best interests of the minor children will be recognized as an exception to the Parental Preference Doctrine (In re Marriage of Criqui, 14 Kan. App. 2d 672, 798 P.2d 69 [1990]).
“(C) The Court’s review of the facts and principles of law set forth in In re Marriage of Criqui, supra finds that Criqui is controlling and should be applied to the facts of this case.
“(D) The parent seeking the custody change must show not only that she is fit, but also that the change of custody materially promotes the child’s best interests and welfare.
“(E) In the present case, Kathleen Williams, has failed to carry her burden to show that a change of custody would materially promote the welfare of her minor son, Nolynn Glendon Williams.”
The rule of law in Criqui relied upon by the district court in the instant case states:
“When a parent transfers to another, whether it be to a nonparent or the other parent, legal custody of an infant child by fair agreement which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim custody of the child unless the parent can show that a change of custody will materially promote the child’s welfare.” Syl., 14 Kan. App. 2d 672.
In Criqui, Roger and Teresa Criqui were divorced in 1982. At the time of their divorce, both parents agreed that Teresa would be granted custody of their two children. The agreement was incorporated in the divorce decree granting custody to Teresa. Following the divorce, an additional child was born to the couple and 18 months later Teresa had a fourth child. Teresa retained custody of all four children. In late 1985, Teresa transferred custody of her four children to her ex-husband’s sisters. Both Teresa and her ex-husband agreed to the custody change, which was subsequently approved by the court. In agreeing to relinquish her custodial rights, Teresa stated that financial problems, her inability to raise the children, and other related problems led to her decision to transfer custody 'of the children.
Three years later, Teresa filed a motion to restore custody of the four children to her. Teresa had recently remarried and was now able to care for and support her children. The district court denied her motion, however, finding that “an abrupt change in the custody of the minor children at that time would be harmful to the children.” 14 Kan. App. 2d at 673. In doing so, the district court applied the best interests of the child test. The court determined that the best interests test was an exception to the parental preference doctrine in cases where a parent by agreement has transferred legal custody of the child to another.
The best interests test was stated in Parish v. Parish, 220 Kan. 131, 132, 551 P.2d 792 (1976), as follows: “In determining the right of custody of children between parents, the primary consideration is the best interest and welfare of the children, and all other issues are subordinate thereto.” See Patton v. Patton, 215 Kan. 377, 524 P.2d 709 (1974); Dalton v. Dalton, 214 Kan. 805, 522 P.2d 378 (1974); Moran v. Moran, 196 Kan. 380, 411 P.2d 677 (1966). The Kansas courts have long applied the best interests of the child test in resolving custody disputes between two fit parents.
On the other hand, it has long been the rule that the parental preference doctrine prevails when the dispute is between a parent' and a third person, unless the parent is found to be unfit. The rule is succinctly stated in Christlieb v. Christlieb, 179 Kan. 408, 409, 295 P.2d 658 (1956), as follows:
“[A] parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.”
The Kansas Supreme Court has held that child custody is a fundamental right of a parent, protected by the due process clause of the Fourteenth Amendment. In Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), the court declared as unconstitutional a statutory provision which required the court to apply the best interests test instead of the parental preference doctrine in certain parent-nonparent custody disputes. K.S.A. 1980 Supp. 60-1610(b)(2), the relevant statute, read:
“(2) At any time after custody of any minor child has been awarded pursuant to a divorce, annulment or separate maintenance decree, any person who has had actual physical custody of any such child after such decree was rendered with the consent of the parent having legal custody, where applicable, may request by motion to the court rendering such decree that legal custody of such child or children be awarded to such person. Notwithstanding the parental preference doctrine the court may award custody of any such child to such person if the best interests of such child will be served thereby.”
In Sheppard, Catherine and Steven were divorced in 1977, with Catherine being awarded legal custody of their son. Prior to and during their marriage, both Catherine and her son lived with Catherine’s parents in Haysville, Kansas. Following the divorce, however, Catherine moved to Wichita while her son continued to live with his grandparents and attend the Haysville schools. In 1980, Catherine’s parents petitioned the court, seeking custody of their grandson. Although the district court found that Catherine was not an unfit parent, the court terminated her custodial rights, placing her son in the permanent custody of her parents.
In reversing the district court’s order, this court stated:
“The United States Supreme Court recently recognized the fundamental nature of the relationship between parent and child in two cases, both of which involve the rights of natural parents of illegitimate children: Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), and Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978). In the latter case the court said:
‘We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’
“It is clear under our decisions and those of the United States Supreme Court that a natural parent’s right to the custody of his or her children is a fundamental right which may not be disturbed by the State or by third persons, absent a showing that the natural parent is unfit. As we noted in In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), a parent’s right to the custody, care, and control of his or her child is a fundamental liberty right protected by the Fourteenth Amendment of the Constitution of the United States.
“. . . [The natural mother] cannot be denied that right for the sole reason that a court determines and concludes that someone other than a natural parent might do a better job of raising the child, thus furthering his ‘best interests.’
“What we hold here is simply this: that a parent who is not found to be unfit, has a fundamental right, protected by the Due Process Clause of the United States Constitution, to the care, custody and control of his or her child, and that the right of such a parent to custody of the child cannot bé taken away in favor of a third person, absent a finding of unfitness on the part of the parent. We hold that K.S.A. 1980 Supp, 60-1610(b)(2), which destroys that fundamental right, is violative of the Due Process Clause and therefore unconstitutional.” 230 Kan. at 150-54.
Kathleen contends that the rule of law stated in Sheppard is controlling in the instant case and argues that Criqui is inconsistent with Sheppard and our statutory scheme of determining custody matters. She requests that this court overturn Criqui, or in the alternative, hold that it is not controlling under the facts of the instant case.
The court in Criqui characterized the Sheppard decision as narrow in scope and not controlling under the facts of Criqui. Specifically, the court determined that the parental preference doctrine did not apply in custody disputes where a parent had previously transferred custodial rights to another person, regardless of whether that person was a nonparent or the other parent. The court relied upon its narrow construction of Sheppard and stated that it found no Kansas case or statute directly on point. 14 Kan. App. 2d at 676. The court then turned to a decision of the Alabama Supreme Court to reach its conclusion that, if a parent has transferred custody of a child to another person, the parent may not reclaim custody of the child unless it is shown that the change will materially promote the child’s welfare, Ex Parte McLendon, 455 So. 2d 863 (Ala. 1984). In doing so, the Criqui court apparently overlooked a long line of Kansas cases to the contrary.
At the root of the parental preference doctrine is the recognition in Kansas that public policy deems the doctrine as being in the best interests of the child. In In re Kailer, 123 Kan. 229, 255 Pac. 41 (1927), the natural father of eleven-day-old twins entrusted the care of the children to his brother and sister-in-law. The natural mother had died and the father was unable to properly care for the newborn infants. Several years later he sought to regain custody of the children. This court stated:
“[T]he welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be intrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves.” 123 Kan. at 231.
The Court of Appeals’ determination in Criqui that the parental preference doctrine does not apply when the parent seeking to regain custody had earlier relinquished legal custody by agreement is not borne out by the case law of Kansas.
In re Brown, 98 Kan. 663, 159 Pac. 405 (1916), involved a custody dispute between the natural mother and a court-appointed guardian of her minor child. Mary A. Brown, the natural mother of Louise, was appointed the guardian of her daughter upon the death of her husband. Thereafter she resigned as guardian and P.N. Johnson was appointed guardian of Louise. Later, having remarried, the mother sought to have the custody of Louise restored to her, in an original action in habeas corpus which was contested by the guardian. The court held:
“The right of a mother to the custody of her child is not impaired by an order of the probate court appointing a guardian, notwithstanding a recital therein that the guardianship extends to the person as well as the property, where no issue concerning the mother’s fitness in that regard was actually presented or determined in the proceeding in which such appointment was made.” 98 Kan. 663, Syl. ¶ 1.
Johnson v. Best, 156 Kan. 668, 135 P.2d 896 (1943), was a habeas corpus action filed in the district court by the natural mother against a court-appointed guardian. Mrs. Johnson, the mother, placed her two-year-old child in the care of Mrs. Best. Pursuant to their agreement, the mother provided support payments to Mrs. Best for her child’s care and maintenance. Several years later, the mother moved to California where she remarried and established permanent residence. During this same period, Mrs. Best petitioned the court and was appointed guardian of the child. Mrs. Johnson was given no notice of the guardianship proceeding. Six years after leaving her child with Mrs. Best, the mother sought to regain custody. In affirming the trial court’s decision granting the mother’s petition, the Supreme Court questioned the jurisdictional validity of Mrs. Best’s appointment as guardian. However, the court determined that the validity of the appointment was not dispositive on the underlying issue of whether the mother had a right to regain custody of her child. In relevant part the court stated: “Had the appointment of appellant as guardian been valid, appellee would not have been deprived of the custody of her child by virtue of such appointment where appellee’s fitness was not made an issue and determined against her in the proceedings for the appointment of appellant as guardian." 156 Kan. at 671. In making its determination that the natural mother was entitled to custody, absent a showing of unfitness, even as against a validly appointed guardian, the court relied upon its earlier decision in Brown and Melroy v. Keiser, 123 Kan. 513, 255 Pac. 978 (1927). In Melroy, the dispute was between the natural father and the child’s maternal grandmother, who had been appointed the child’s guardian. In granting custody to the father, the court held:
“The right of the father (the mother being deceased) to the custody of his minor child is not impaired by an order of the probate court appointing another as guardian of the person of such child where no issue concerning the father’s fitness in that regard was presented to or determined by the probate court in the proceeding in which such appointment was made.” 123 Kan. 513, Syl. ¶ 2.
Jones v. Jones, 155 Kan. 213, 124 P.2d 457 (1942), involved an attempt by the natural mother, Doris Jones, to regain custody of her minor child, Madalene, from the paternal grandmother who had custody under an order issued in the original divorce case between Madalene’s parents. The procedural facts were set out by the court as follows:
“On December 6 the parties filed with the court a written stipulation by which they agreed ‘that the care, custody and control of the minor child of said litigants, Madalene Irene Jones, shall be given over to Mabel Jones of Toronto, Kan., grandmother of said child, pending further orders of the court with respect to said child’s care, custody and control.’. . . . This stipulation was considered and approved by the court on December 6, 1938. Plaintiff was granted a divorce, and custody of the child was given to defendant’s mother, Mabel Jones, pending the further order of the court.
“Early in 1941 — the exact date not shown — -plaintiff filed in the divorce action an application for an order modifying the previous order respecting the custody of the child and asking that she be granted the care, custody and control of the child.” 155 Kan. at 214-15.
The trial court had denied the mother’s application for a change of custody stating, in part, “[T]he welfare of said child would be best subserved by continuing the care, custody and control of the child in the grandmother’s custody.” 155 Kan. at 217. In reversing the trial court, this court stated:
“It is firmly established by repeated decisions' of this court that a parent who is able to care for a child and desires to do so, and who has not been found to be an unfit person to have the custody of the child, in an action or proceeding where that question is in issue and upon competent evidence, is entitled to the custody of the child as against grandparents or others who have no permanent legal right to the custody of the child, even though at the time they are giving the child suitable care and have acquired an attachment for the child.” 155 Kan. at 219.
The court went on to state:
“The record clearly shows appellee is a good woman, that she is attached to the child, and would give her good care, in sickness or health. Appellant freely so testified at each of the hearings, and there is no evidence to the contrary. But, as determined in many of the cases hereinbefore cited, those facts are not controlling; indeed, they are of no weight as against a parent who has not been adjudged to be an unfit person to have the custody of a child, when asserted by one who is not a parent.” 155 Kan. at 220.
In Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658 (1956), the court was again faced with an appeal by the mother from an order denying her custody of her minor children placed in the custody of the maternal grandmother by court order entered at the time of the original divorce. On April 21, 1954, Alma Christlieb obtained a divorce from her husband. At the time, the court ordered custody of the four minor children be placed with Alma’s mother. There was no finding in the divorce proceeding that Alma was unfit. Subsequently, Alma remarried and on several occasions sought to obtain custody of the children, but on each occasion her application was denied. At none of the hearings was Alma found to be an unfit mother, and she finally appealed the last order denying her custody. In reversing the trial court, this court followed the rule set forth in Jones and also as quoted earlier in this opinion.
In Hamm v. Hamm, 207 Kan. 431, 485 P.2d 221 (1971), the mother voluntarily relinquished custody of her four children after filing for divorce and becoming financially unable to provide for her children. In a written agreement which was approved by the district court, the mother allowed her two oldest children to stay with their paternal grandparents while her two youngest children stayed with their paternal great-aunt and -uncle. One year following the court-approved arrangement, the mother sought custody of her two oldest children, which was granted one year later. Two years later, the mother sought to regain custody of her two other children; however, she was denied their custody, being found unfit by the court. The district court granted permanent custody of the two youngest children to their paternal great-aunt and -uncle.
In reversing the district court’s decision, the Supreme Court held there was no substantial evidence to support the lower court’s finding that the mother was unfit. Additionally, the Supreme Court held the lower court abused its discretion in denying the mother’s motion to regain custody of her two children. In declaring that the mother had a right to the custody of her children as against other parties, the court relied on Stout v. Stout, 166 Kan. 459, 201 P.2d 637 (1949). In doing so, it quoted the following language from Stout:
“Under our recent and often repeated decisions, to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.” 166 Kan. at 463.
Another decision that holds contrary to the Criqui rule is Herbst v. Herbst, 211 Kan. 163, 505 P.2d 294 (1973). In Herbst, the parties were divorced in 1966 with the custody of their daughter being awarded to the mother. Shortly following their divorce, the 17-year-old mother was sentenced to a girl’s correctional school, and temporary custody of the child was granted to the child’s maternal grandparents. Following her release, the mother remarried and in 1971 sought to regain permanent custody of her daughter. Although the district court held there was no finding of unfitness of the mother, the court denied her motion. In reversing the district court’s decision, the Supreme Court stated: “In the absence of an adjudication that a natural parent is unfit to have custody of a child, the parent has the paramount right to custody as opposed to third parties — even, as here, they happen to be her own parents and the child’s grandparents.” 211 Kan. 163.
Numerous other decisions of this court which in effect apply the parental preference doctrine when the dispute is between a parent, who has not been found unfit, and a third-party nonparent who obtained custody by court order could be cited, but the foregoing are representative of the longstanding rule.
For representative cases following the same rule in cases where custody was placed in a third party by agreement, without any court order, see In re Rhea, 207 Kan. 610, 485 P.2d 1382 (1971); In re Vallimont, 182 Kan. 334, 321 P.2d 190 (1958); In re Kailer, 123 Kan. 229, 255 Pac. 41 (1927); Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968 (1908).
The best interests of the child test, which is asserted here by Cindy, has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. However, absent highly unusual or extraordinary circumstances it has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent. As stated in In re Eden, 216 Kan. 784, 786-87, 533 P.2d 1222 (1975):
“The cases where we have held the “best interests’ test applicable were all cases where the dispute was between parents. [Citations omitted.] Where, as here, the dispute is between strangers and a natural parent who is not unfit and who is able and willing to care for the children, the parent’s right must prevail. This is so even though the trial court might feel that it would decide otherwise if free to consider only the ‘best interests’ of the children, apart from the benefits to be derived from the love and care of the natural parent.”
Not only is the parental preference doctrine one of long standing in Kansas, it is also the rule, in one form or another, in a majority of the jurisdictions in this country. See Ex Parte Terry, 494 So. 2d 628 (Ala. 1986); Buness v. Gillen, 781 P.2d 985 (Alaska 1989); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); In re R.L.L. and J.M.L., 258 Ga. 628, 373 S.E.2d 363 (1988); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989); In re custody of Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150 (1986); Glass v. Bailey, 233 Ind. 266, 118 N.E.2d 800 (1954); Davis v. Collinsworth, 771 S.W.2d 329 (Ky. 1989); Pastore v. Sharp, 81 Md. App. 314, 567 A.2d 509 (1989), cert. denied, 319 Md. 304 (1990); Durkin v. Hinich, 442 N.W.2d 148 (Minn. 1989); Guardianship of J.R.G., 218 Mont. 336, 708 P.2d 263 (1985); Peterson v. Peterson, 224 Neb. 557, 399 N.W.2d 792 (1987); Zack v. Fiebert, 235 N.J. Super. 424, 563 A.2d 58 (1989); Merritt v. Way, 58 N.Y.2d 850, 446 N.E.2d 776 (1983); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716 (1983); Worden v. Worden, 434 N.W.2d 341 (N.D. 1989); Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987); Michael T.L. v. Marilyn J.L., 363 Pa. Super. 42, 525 A.2d 414 (1987); Skeadas v. Sklaroff, 84 R.I. 206, 122 A.2d 444 (1956), cert. denied 351 U.S. 988 (1956); Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989); Langerman v. Langerman, 336 N.W.2d 669 (S.D. 1983); Bush v. Bush, 684 S.W.2d 89 (Tenn. App. 1984); Nielson v. Nielson, 818 P.2d 1043 (Utah App. 1991); Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23 (1985); Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986); Ford v. Ford, 172 W. Va. 25, 303 S.E.2d 253 (1983); In re Kosmicki, 468 P.2d 818 (Wyo. 1970).
Additional discussion on this issue may be found in several leading secondary authorities. 67A C.J.S., Parent and Child § 26, p. 253, reads: “Where there is no intent permanently to relinquish a child’s custody, but the parent surrenders the child temporarily because of illness or financial difficulties, the parent will not be deprived of the right to reclaim the custody when the situation changes for the better.” Elrod, Child Custody Prac. and Proc. § 4.06 (1993): “As a general rule, parents as natural guardians have superior rights to the custody of their child over non-parents unless the parents are unfit or extraordinary circumstances exist.”
In Criqui, the court seized upon the words from many of our cases in which we have held the parental preference doctrine controls against nonparents “who have no permanent or legal right” to the child’s custody to fashion an unjustified exception to the general rule. As made clear by our many decisions on the issue, the “legal right” referred to means a permanent legal relinquishment by adoption, severance of parental rights, or other appropriate proceedings terminating the parent-child relationship. The “legal right” referred to does not contemplate court orders granting custody in divorce, guardianship, or similar proceedings where the parent-child relationship is not severed or terminated and the order is not permanent but one subject to reconsideration, modification, or termination by the court.
We adhere to the rule that absent highly unusual or extraordinary circumstances the parental preference doctrine is to be applied in a custody dispute over minor children when the dispute is between a natural parent who has not been found unfit and a nonparent. Likewise, we adhere to the rule that the best interests of the child is the appropriate standard to be applied in custody disputes between parents.
We conclude that the holding set forth in In re Marriage of Criqui, 14 Kan. App. 2d 672, 798 P.2d 69 (1990), was clearly erroneous and it is therefore overruled. In the present case, the trial court erred in holding that Kathleen was required to show that a change of custody would materially promote the welfare of her minor son, Nolynn, before she could regain custody and terminate the existing guardianship. As Kathleen was not found unfit, she is entitled to the relief sought.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his conviction for second-degree murder, a Class B felony, K.S.A. 21-3402, claiming that the trial court erred in: (1) refusing to find that his statutory and constitutional rights to a speedy trial had been violated; (2) refusing to either compel a codefendant, whose trial had been severed, to testify or to admit the transcript of the codefendant’s testimony from his separate trial; (3) excluding hearsay testimony at the motion for new trial; (4) permitting a State’s witness to testily as to an out-of-court statement made by defendant; (5) finding defendant’s right to a fair trial had not been violated by prosecutorial misconduct; (6) instructing the jury on aiding and abetting; (7) commenting on defendant’s silence at sentencing; and (8) failing to comply with K.S.A. 22-3422 when sentencing defendant.
Daniel Evans died by strangulation between 4:00 p.m. September 13 and 7:30 a.m. September 14, 1990, at his house. Evans also suffered blunt trauma to his skull and a cervical vertebra. The blow to the skull was consistent with a heel stomping on the head. The strangulation probably occurred first because there was little bleeding around the skull trauma. A friend of Evans found the body at Evans’ home on the morning of September 14. In the living room, the furniture had been tipped over, and the cushions were thrown about.
Based on information obtained during the investigation, the police suspected Earl and Cortez Green, who were brothers. They obtained a search warrant and searched Earl and Cortez’s residence the night of the 14th. In the bedroom the police found a pair of black boots and a Black Bart T-shirt. Witnesses had told police that Earl, on the night of the 13th, had been wearing black boots and a Black Bart T-shirt. There were traces of blood on both the boots and the T-shirt. Blood samples were taken from Earl, Cortez, and the victim. The blood on the boots matched the victim’s blood type. The blood on the Black Bart T-shirt matched the blood of both brothers and the victim.
Maresa Lofton-gave a statement to the police, and testified at trial, that at a party two days after the killing she overheard Cortez tell Reggie McKinney, “Hey, man, me and my brother killed that old man last night.” On cross-examination, defense counsel introduced testimony from the preliminary hearing in which Maresa admitted Cortez could have said that the police suspected he killed someone, not that he did it. Reggie McKinney had informed the police that at the party Cortez said the police thought he and Earl had killed an old man.
Prior to being placed in custody, Cortez told the police that he and Earl had visited Evans about 3 or 4 p.m. on September 13, 1990. While Cortez stayed at Evans’ house, Earl went to the store to get some “hot pigskin chips.” He and Earl went home around midnight. Cortez and Earl were subsequently charged with the killing of Daniel Evans. Earl and Cortez were tried separately, and each was found guilty of second-degree murder. This court affirmed Earl’s conviction in State v. Green, 252 Kan. 548, 847 P.2d 1208 (1993).
STATUTORY AND CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL
Cortez asserts that his constitutional and statutory rights to a speedy trial were violated. Under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, the accused in a criminal prosecution is guaranteed the right to a speedy trial. In addition to the applicable provisions of the state and federal constitutions, the Kansas Legislature has implemented a statutory limitation, K.S.A. 22-3402, which specifies the time within which an accused must be brought to trial. State v. Clements, 244 Kan. 411, 413, 770 P.2d 447 (1989).
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
The purpose of K.S.A. 22-3402 is to implement an accused’s constitutional right to a speedy trial. It is the State’s obligation to insure that an accused is provided a speedy trial, but delays which are the result of the application or fault of the accused, or extended by 22-3402(3)(c) to allow the prosecution to obtain material evidence, are not counted in computing the statutory speedy trial period.
K.S.A. 22-3402(3) provides that the 90-day limitation imposed by K.S.A. 22-3402(1) may be extended if:
"(c) [tjhere is material evidence which is unavailable; . . . reasonable efforts have been made to procure such evidence; and . . . there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.”
Cortez was arraigned December 14, 1990. Trial was originally set for February 25, 1991. On that date, the trial was continued to March 18, 1991. On February 28, 1991, the State filed a motion to extend the time to bring defendant to trial by 30 days because the DNA test results from Life Codes, Inc., would not be available until March 11, 1991. The State’s motion for a 30-day continuance to obtain the evidence was granted. On March 27, 1991, the State filed a second motion to extend the time required to bring the defendant to trial because material evidence was not available, this time requesting an extension of 90 days. In its motion, the prosecution stated that the DNA test results from Cellmark Diagnostics would not be available prior to April 8, 1991, and, in addition, .one of the State’s witnesses, Dr. James Bridgens, a forensic pathologist, was out of the United States until April 23, 1991. The State’s motion for a second continuance was also granted by the court. Cortez’s trial commenced on June 24, 1991, within 120 days after the original February 25,-1991, trial setting.
Where material evidence is unavailable and reasonable efforts have been made to procure the evidence, a second continuance ordered by the court is reasonable and pi'oper where the first continuance was for less than 90 days and the trial commenced within 120 days from the trial date on which the first continuance was granted. See State v. Welch, 212 Kan. 180, 509 P.2d 1125 (1973). Defendant’s trial was commenced within the period allowed by K.S.A. 22-3402(3).
The constitutional right to a speedy trial was analyzed in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In that case, the United States Supreme Court adopted a four-part balancing test to be applied on a case-by-case basis. The factors to be considered in determining if defendant’s right to a speedy trial have been violated are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right; and (4) prejudice to the defendant. 407 U.S. at 530. The length of the delay is usually the triggering mechanism. Unless there is some delay which is presumptively prejudicial, there is no necessity to inquire into the other factors. See State v. Smith, 247 Kan. 455, 459, 799 P.2d 497 (1990); State v. Rosine, 233 Kan. 663, 667, 664 P.2d 852 (1983).
Cortez argues that the DNA evidence sought by the State was to prove his presence in- the victim’s apartment. He points out that he had already admitted to being there that night. In addition, the blood tests conducted by the KBI lab prior to the State’s request for a continuance were sufficient to prove the similarity between Evans’ blood and the blood on the boots. Cortez claims that the State’s continuance to obtain the DNA evidence was not necessary and violated his right to a speedy trial. To support this argument, he relies on State v. Snodgrass, 252 Kan. 253, 843 P.2d 720 (1992).
In Snodgrass, the defendant claimed that the continuance was necessary because he was not aware of a hospital lab report until a week prior to the request. He asserted that because the blood test performed by the KBI was inconclusive, the DNA test was necessary to show he did not have sex with the victim. The request for a continuance to obtain DNA testing was denied by the trial judge. We noted that K.S.A. 22-3401 allows continuances by either party for good cause. We observed that the granting or denial of a continuance rests in the sound discretion of the trial court and that the ruling of the trial court will not be disturbed on appeal absent a showing of both an abuse of discretion and prejudice to the substantial rights of the defendant. Snod-grass’ request came two days prior to the trial and followed a previous continuance granted Snodgrass to obtain an examination for his insanity defense. We noted the trial court had already granted the defendant one continuance on the eve of trial and found that the trial judge had not abused his discretion. 252 Kan. at 264.
Cortez assumes the essence of our affirming the denial of the continuance in Snodgrass was that the DNA evidence was not material. Based on that assumption, he asserts the trial court’s grant of the continuance to the State in this case was improper and denied him his right to a speedy trial. We disagree with Cortez’s analysis of Snodgrass. Snodgrass had waited until the eve of the trial to seek DNA testing. The testing could have taken from 4 months to 2 years to be completed. The fact Snod-grass had confessed to having sex with the victim indicated the defendant’s request for a continuance was an attempt to delay the trial.
When Cortez’s trial commenced, the State admitted that because of the expense it would not introduce the DNA test evidence. Cortez renewed his claim that his right to a speedy trial had been denied and now argues the DNA evidence was not material; therefore, the State’s requests for continuances were not necessary. We disagree. Cortez was brought to trial within the statutory period. There is no suggestion that the State did not intend to use the DNA evidence at trial or requested the continuances to gain an advantage. The continuances granted to the State to obtain the evidence did not violate Cortez’s statutory or constitutional rights to a speedy trial.
FAILURE TO COMPEL CODEFENDANT TO TESTIFY
A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant’s theory violates the right to a fair trial. However, a defendant’s right to call and examine witnesses is not absolute and on occasion will be overridden by “other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973).
Cortez subpoenaed his brother Earl to testify. Earl had testified in his own trial that after he went to a store to get something to eat, he returned home and discovered that Cortez was already home asleep. Earl had denied possessing the shirt with blood on it and claimed it was placed in the bedroom by someone else. Cortez also asserts Earl’s testimony would have bolstered the testimony of Artesha Lambert and Anzarita Bixby that they saw Earl alone that night. Cortez contends Earl’s testimony in Earl’s trial that the brothers were not together the entire evening of the murder, was crucial to his defense against the State’s aiding and abetting theory.
The court, outside the presence of the jury, citing the Kansas Benchbook, advised Earl that he had a privilege against being compelled to testify. § 111(D)(2), p. 100 of the Benchbook states:
“A codefendant not then on trial may be called.by the defendant only if, outside the presence of the jury and in the presence of his or her attorney, the codefendant is advised of and understands the privilege against self-incrimination and is informed there is no compulsion to testify. A record to this effect must be made by the judge.”
Relying on the judge’s statement, Earl refused to testify. Cortez objected, pointing out that prior to being called as a witness, Earl had previously waived his right not to testify and had testified during his trial for the same offense. Cortez asserted Earl had waived his privilege not to testify. The court ruled that Earl had an “absolute right” to refuse to testify and quashed the subpoena.
Cortez’s counsel then requested that the transcript of Earl’s testimony from his previous trial be admitted into evidence. The State argued that at the brothers’ request their trials had been separated to avoid conflicting testimony. After being informed that Earl’s testimony had not been transcribed, the court denied Cortez’s motion to admit the transcript of Earl’s testimony into evidence.
K.S.A. 60-425 is the codification of a defendant’s Fifth Amendment right not to incriminate himself or herself and permits a witness to assert a privilege against disclosing self-incriminating matter. Cortez claims Earl waived any right to this privilege by testifying at his own trial. Cortez principally relies on State v. Nott, 234 Kan. 34, 669 P.2d 660 (1983), to support his claim. In Nott, five persons had burglarized a school. Two of the accused pled guilty. The court then ordered that Nott be tried separately from the other two defendants, Whitaker and Kirk. Whitaker and Kirk were tried first. They called Nott as a witness. In the presence of the jury, Nott stated his name and then invoked his Fifth Amendment right against self-incrimination. Whitaker and Kirk were found not guilty. When Nott was tried, he took the stand and gave an alibi. The State attempted to cross-examine Nott regarding his taking the Fifth Amendment at the Whitaker-Kirk trial. The trial judge refused to allow the State to cross-examine Nott about his prior claim in the codefendant’s trial because his testimony would incriminate him. Nott was found not guilty. The State reserved the question of whether it should have been allowed to cross-examine Nott as to his prior assertion of his Fifth Amendment rights at his codefendants’ trial.
The Nott court noted that a defendant has an absolute right to not be called as a witness at his or her trial. It stated that where two defendants are jointly tried, each defendant has a separate absolute right not to be called as a witness, and neither defendant can call the other as a witness in their joint trial absent a waiver of the right by the defendant sought to be called as a witness. If a defendant, called to testify at a separate trial of a codefendant, declines to answer questions on Fifth Amendment grounds and then later takes the stand to give an alibi defense at his or her own trial, the defendant may be cross-examined regarding the prior invocation of the Fifth Amendment and the defendant’s refusal to answer questions directly relating to the commission of the crime charged.
The State argues that even though Earl had testified in his own trial, because Earl had not been sentenced, he retained a right to refuse to testify at Cortez’s trial. The State asserts that to compel Earl to testify “would be contrary to the holding” of State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982). In Crumm, the defendant was charged with murder. At his trial, Crumm called his mother as a witness. The mother had been arrested, questioned, and charged in' the same crime, but the charges had been dismissed at the time she was called as a witness. Her attorney informed the trial judge that she would exercise her right not to testify as to anything that would incriminate her. The State, outside the presence of the jury, asked the court to limit Crumm’s questions to those which would not cause his mother to invoke her Fifth Amendment rights. The trial court agreed, and Crumm’s mother’s testimony was limited to Crumm’s early life, and no questioning related to the murder occurred.
On appeal, Crumm contended he should have been allowed to question his mother about the murder. After examining the record, the Crumm court noted it was readily apparent that the mother had the right, under the Fifth Amendment to the United States Constitution, to refuse to answer questions which would incriminate her. The court held that forcing the mother to invoke her Fifth Amendment rights in front of the jury “would have been improper.” 232 Kan. at 257. Forcing a witness to “plead the Fifth” in front of the jury may be “ ‘high courtroom drama,’ ” but it is utterly lacking in probative value because it is not subject to cross-examination. 232 Kan. at 259 (quoting Commonwealth v. Hesketh, 386 Mass. 153, 157, 434 N.E.2d 1238 [1982]). We disagree with the State’s claim that Crumm is dispositive. Here, Earl had previously testified in his trial for the same offense. The witness in Crumm had not testified or waived her right not to incriminate herself.
In State v. Longobardi, 243 Kan. 404, 756 P.2d 1098 (1988), Longobardi and Carey Payne were charged with aggravated robbery and first-degree murder. Carey pled guilty to second-degree murder and aggravated robbery prior to Longobardi’s trial on charges arising out of the same set of facts. Pursuant to a plea agreement, Carey testified against Longobardi. Longobardi’s first trial ended in a hung jury. At his second trial, Longobardi at tempted to call Carey as a witness. Carey invoked the Fifth Amendment. This court first noted the Fifth Amendment, inter alia, protects any witness from having to testify to matters that would expose him or her to future criminal liability. At the time of the second trial, Carey had been sentenced, but his time for appeal, rehearing, or sentence modification had not yet expired. 243 Kan. at 407-08.
Carey’s attorney advised him to invoke his Fifth Amendment right not to testify. Carey had not filed any appeal or motion for rehearing or sentence modification and did not offer any explanation as to how his testimony could affect such an appeal or hearing. The trial court accepted Carey’s assertion of the Fifth Amendment and refused to allow Longobardi to call Carey as a witness. The court did, however, allow Longobardi to introduce into evidence the transcript of Carey’s testimony from the first trial. 243 Kan. at 408.
The Fifth Amendment only extends to protect a witness who would incriminate himself or herself. Without discussing Carey’s prior testimony in the defendant’s first trial, the Longobardi court held that once a guilty plea is accepted, sentence is imposed, and the time to appeal has expired, the privilege against self-incrimination no longer exists, citing State v. Anderson, 240 Kan. 695, 732 P.2d 732 (1987). Even though the trial court’s refusal to allow the witness to testify in Longobardi’s case was wrong, it did not deprive the defendant of a fair trial because the court had allowed the transcript of Carey’s prior testimony in Longo-bardi’s first trial to be read to the jury. The jury had heard all the evidence that could have been adduced by Carey testifying.
The right of a witness to invoke the Fifth Amendment in subsequent proceedings after having testified in a prior proceeding is also discussed in State v. Simmons, 78 Kan. 852, 98 Pac. 277 (1908). Simmons was convicted in his first trial, but this court reversed that conviction and a second trial was held. Simmons had testified on his own behalf at the first trial but decided to not testify at the second trial. The State, over Simmons’ objection, introduced the transcribed testimony from the first trial at the second trial. The Simmons court noted that where a defendant on trial on a felony charge voluntarily testifies as to his or her connection with the offense charged, and after judgment procures a new trial, a transcript of the defendant’s testimony in the first trial may be introduced in evidence by the State at the defendant’s second trial. See 78 Kan. 852, Syl. ¶ 1. This court stated a waiver of the privilege continues at every subsequent stage of proceedings. See 78 Kan. 852, Syl. ¶ 2.
The Fifth Amendment operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose the witness to a criminal charge. Ullmann v. United States, 350 U.S. 422, 431, 100 L. Ed. 511, 76 S. Ct. 497, reh. denied 351 U.S. 928 (1956). Neither party discusses Kansas’ codification of the United States and Kansas constitutional right not to incriminate oneself. Under K.S.A. 60-424, a matter will incriminate a person if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefor, unless he or she has become for any reason permanently immune from punishment for such violation. The constitutional prohibition against self-incrimination is broader than this statute’s definition.
Subject to K.S.A. 60-423 and K.S.A. 60-437, every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person. K.S.A. 60-425. “A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has . . . without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.” K.S.A. 60-437. When Earl testified during his trial, he disclosed matters that could be used against him. The disclosures were made with knowledge of the privilege. The trial court erred in refusing to require Earl to testify in Cortez’s subsequent trial.
Cortez contends the judge also improperly refused to admit the transcript of Earl’s testimony at his (Cortez’s) trial. As au thority, Cortez cites K.S.A. 1992 Supp. 60-460(c), which provides an exception to the exclusion of hearsay evidence if a witness is unavailable but has testified under oath at an earlier hearing. Because the trial judge ruled Earl could refuse to testify, Earl was unavailable as a witness. The transcript of Earl’s prior testimony could have been obtained, or the court reporter could have read his or her notes of the prior testimony to the jury. Earl’s prior testimony was admissible, and it was error for the trial judge to refuse to admit the transcript or a readback into evidence.
Although Earl’s testimony was admissible, under certain exceptions the refusal to admit admissible evidence does not violate a defendant’s right to call .witnesses. Although at common law a person accused of a felony could not, as a matter of right, compel a witness to appear, under the United States Constitution and the Kansas Constitution, a defendant has the right to compel a witness to appear and testify. However, the constitutional right of an accused to compel a witness to testify is not absolute. Errors which do not affirmatively appear to have prejudicially affected the substantial right of a defendant do not require reversal when substantial justice has been done. In determining that a federal constitutional error constitutes harmless error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial, and the court must be able to declare such beyond a reasonable doubt. State v. Peltier, 249 Kan. 415, Syl. ¶ 5, 819 P.2d 928 (1991).
The trial judge’s findings that Earl had a right not to testify at Cortez’s trial and that the transcript of Earl’s prior testimony was not admissible were incorrect and deprived defendant his constitutional right to call witnesses to testify on his behalf. Did the refusal to allow Earl to testify or admit his prior testimony into evidence deprive Cortez of his right to a fair trial? Earl’s testimony was that at some point during the time death could have occurred, the brothers were apart. Earl’s testimony would have supported Cortez’s testimony.
We have reviewed the record and find that the evidence that Earl would have given was introduced into evidence through the testimony of defendant and other witnesses. We are able to de clare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
EXCLUDING HEARSAY AT THE MOTION FOR A NEW TRIAL
After his conviction, Cortez moved for a new trial based on newly discovered evidence. The alleged new evidence was that defense counsel, after conclusion of the trial, had been informed by two potential witnesses, Dereck Lofton and Tony Vann, that one of the State’s witnesses, Maresa Lofton (Dereck’s sister), had been coerced by the State to testify that she overheard Cortez say he had killed someone.
At the hearing on the motion for a new trial, defense counsel informed the judge that he was unable to locate Maresa. Cortez’s father was called as a witness and testified that he had attempted to locate both Maresa and Dereck: Defense counsel requested that the judge find that these witnesses were unavailable and allow Cortez’s father to testify as to the statements made by Maresa and Dereck to him. The State objected on hearsay grounds.
The judge found that Maresa and Dereck were unavailable as witnesses but requested Cortez’s counsel to cite the specific exception to admit the hearsay statements. Cortez’s counsel could not cite an exception but noted that the federal rules authorize a court to allow such a statement if the interests of justice dictate. The trial judge refused to allow the hearsay statements into evidence, stating, “Well, Maresa Lofton can be found at any time, I assume that this issue can still be raised at any time.” Because there was no evidence to consider, the motion for new trial was denied.
On appeal, Cortez contends that the hearsay was admissible under K.S.A. 1992 Supp. 60-460(j), which allows admission of hearsay declarations against interest that would subject the de-clarant to criminal liability. Cortez failed to argue the declarations against interest exception at the hearing for a new trial. If the alleged new evidence is true, Maresa could be charged with perjury. Cortez implies that Maresa was unavailable because she perjured herself when testifying at the trial. Although failure to raise an issue in the trial court ordinarily precludes review on appeal, we will review the issue. See State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992).
First, however, we must determine what rule applies to the introduction of evidence at the hearing on the motion for a new trial. We note that except to the extent to which they are relaxed by other procedural rules or statutes, applicable to the specific situation, the rules of evidence set forth in K.S.A. 60-401 et. seq., are applied in every proceeding, both criminal and civil, conducted by or under the supervision of a court. K.S.A. 60-402. Whether hearsay evidence should be admitted at a post-trial hearing is within the discretion of the trial court. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993).
The State notes that this ruling was within the court’s discretion and contends no abuse is shown. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
The court was correct in stating that if Maresa could be found, the evidence could be considered at that time. See State v. Bradley, 246 Kan. 316, 319, 787 P.2d 706 (1990). We agree that under the circumstances it was for the judge to determine if he should grant Cortez a new trial based on hearsay testimony that he might later exclude if a new trial was granted. The trial judge weighed the hearsay evidence and decided not to grant a new trial. Under these circumstances, it was not an abuse of discretion to preclude the testimony of-the father as to the alleged hearsay statements of a witness who was unavailable.
ADMISSION OF CORTEZ’S STATEMENT
Cortez next argues it was error to allow Maresa to testify as to his statement he and his brother killed an old man, because it was a confession. The State asserts Cortez’s statement was not a confession but instead an admission against interest and admissible as an exception to the hearsay rule. See K.S.A. 1992 Supp. 60-460(j).
As authority for his claim that the statement the witness overheard was a confession and inadmissible, Cortez cites State v. Myers, 229 Kan. 168, 625 P.2d 1111 (1981). Linda Axvig, the wife of Lorin Axvig, who was later charged as a coparticipant, gave a statement to the police that her husband told her that he had just killed someone and that Myers had asked him to commit the killing. The Myers court noted that the statements alleged to have been made by Lorin fell within two basic categories: (1) a statement which constituted a confession by Lorin of the commission of the homicide, K.S.A. 1992 Supp. 60-460(f), and (2) a statement which incriminated the defendant Myers in the homicide. This court treated Linda’s statement to police officers as a confession by Lorin under 60-460(f), and held it was inadmissible against another coparticipant.
We disagree with the State that Cortez’s statement was not a confession. A “confession,” in a legal sense, is an acknowledgment of guilt made by a person after an offense has been committed and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred. State v. Reinhart, 26 Or. 466, 477-78, 38 Pac. 822 (1895). When a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. Covington v. The State of Georgia, 79 Ga. 687, 690, 7 S.E. 153 (1887). A confession of guilt is an admission of the criminal act itself, not an admission of a fact or circumstance from which guilt may be inferred. State v. Red, 53 Iowa 69, 74, 4 N.W. 831 (1880); see State v. Campbell, 73 Kan. 688, 698, 85 Pac. 784 (1906).
K.S.A. 1992 Supp. 60-460(f) allows admission of a confession if
“the accused (1) when making the statement was conscious and capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
The statement made by Cortez to his friend may be classified as a confession, but subsection (f) does not exclude the statement because Cortez knew he was making the statement, he was not induced to make the statement, nor was he acting under compulsion or a threat. In addition, Cortez made the statement at a party in a manner that allowed others to hear his statement. Under the circumstances in which the statement was made, Cortez had no expectation that his statement was privileged.
Cortez claims admission of the statement was overwhelmingly prejudicial when weighed against its probative value and that it should have been excluded under K.S.A. 60-445. We disagree with his claim for several reasons. We first note that exclusion of evidence under K.S.A. 60-445 is not as broad as Cortez states. Under K.S.A. 60-445, the judge may in his or her discretion exclude evidence if the judge finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered. Under Cortez’s reasoning, confessions would seldom be admitted into evidence. Secondly, Cortez was well aware his statement would be used against him and was not surprised by its admission into evidence. Application of the probative/prejudicial comparison under K.S.A. 60-445 is left to the discretion of the trial court. See State v. Tran, 252 Kan. 494, 504, 847 P.2d 680 (1993). No abuse of discretion in the admission of the statement is shown.
PROSECUTORIAL MISCONDUCT
In his summation of his closing argument, the prosecutor stated:
"Ladies and gentlemen of the jury, you are here to decide this case to determine what the verdict is and tire outcome of this case. The issue is the death of Daniel Evans and the involvement of that man in that death. What you decide will he what our community stands for(Emphasis added.)
Cortez objected to this comment as improper argument. The prosecutor argued it was a proper statement of the jury’s “province.” The court neither overruled or sustained the objection nor admonished the jury to disregard the remark but told the prosecutor to continue his argument to the jury. Cortez, on appeal, also complains of a remark by the prosecutor in his closing argument that the jury would decide what justice is. This statement was not objected to.
In State v. Jordan, 250 Kan. 180, 193, 825 P.2d 157 (1992), the prosecutor stated in closing, inter alia, “ ‘And if you want to live in a community where a person can kill another person ... in the manner that this was conducted and excuse it because he has had a few drinks, that’s up to you.’ ” This court, as well as the trial court which sustained the objection made, held that remark to be improper. We found the remark to be a violation of the Model Rules of Professional Conduct. However, we did not reverse Jordan’s conviction because the trial court had sustained the objection and instructed the jury that statements of counsel were not evidence. In addition, defense counsel did not request either a mistrial or to have the jury admonished.
State v. Majors, 182 Kan. 644, 323 P.2d 917 (1958), involved repeated objectionable statements by the prosecutor even after the court had instructed the prosecutor to confine his comments to the evidence presented. Defense counsel moved for a mistrial, but that request was denied. The Majors court noted that the only conclusion that could be reached was that- counsel for the State in his closing argument, over the objections of the defense and the admonitions of the trial court, had persistently tried to comment on matters outside of the record. The Majors court observed the comments were not withdrawn nor was the jury admonished to disregard them. Because the prosecutor’s comments were so prejudicial, the defendant was granted a new trial.
The prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial. State v. Hobbs, 248 Kan. 342, Syl. ¶ 5, 807 P.2d 120 (1991). Here the court failed to directly rule on the objection, and, as the defense counsel did in Jordan, Cortez’s counsel failed to move for a mistrial or to request that the court admonish the jury. The comment by the prosecutor should not have been made, and the court should have ruled on the objection.
However, after reviewing the record, we find, as we did in Hobbs, that the prosecutor’s remarks were not reversible error.
INSTRUCTING ON AIDING AND ABETTING
Cortez was charged with “unlawfully, feloniously, willfully and maliciously, but without deliberation or premeditation” killing Daniel Evans. Cortez notes that in the opening argument the prosecutor told the jury the State had to show Cortez intentionally killed Daniel Evans. When the trial judge was preparing instructions for the jury, the State requested an aiding and abetting instruction. Defense counsel objected because the State had not previously indicated to defendant that it was proceeding under an aiding and abetting theory. The court overruled the objection and gave the instruction.
Cortez claims it was unfair to give the instruction because the State, which had tried Earl earlier for the same crime, had knowledge it would request the aiding and abetting instruction before Cortez’s trial began. Cortez argues that to allow the State to wait until the end of the trial to raise the aiding and abetting theory is fundamentally unfair. Cortez asserts this error was exacerbated by the judge’s failure to compel Earl’s testimony, which would have shown that he and Earl were not together during the entire evening. Cortez argues that if that testimony had been admitted, the jury could have rejected the aiding and abetting theory.
The State counters that the evidence presented supports the instruction. Both parties rely on State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976), to support their argument. Smolin, although charged with aggravated battery, was tried as an aider and abettor. The Smolin court noted that, by statute and case law, this jurisdiction has long held that any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he or she was a principal. It rejected the defendant’s arguments that it was unfair to give the aiding and abetting instruction. 221 Kan. at 152.
Cortez also cites a trio of federal court of appeals cases for the proposition that the conviction should be reversed because the giving of the instruction resulted in unfair surprise. See, e.g., U.S. v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990), cert. denied 499 U.S. 977 (1991). None of the cases define unfair surprise, although the underlying concern is whether the defendant had prior notice.
We note Cortez sought separate trials, alleging, inter alia, that the two defendants would have antagonistic defenses. In the prosecutor’s opening statement at Cortez’s trial, he informed the jury the evidence would show Cortez and his brother were at Evans’ house within the time frame during which Evans died. The prosecutor also referred to evidence that was found in a room shared by the two brothers. The prosecutor closed by saying that after the jury heard all the evidence it would be able to conclude “Cortez Green was involved in the killing.” (Emphasis added.)
A person is criminally responsible for a crime committed by others if that person intentionally aids and abets another in the commission of the crime. A person who aids and abets in the commission of the crime may be charged either as a principal or as an aider and abettor. State v. Garcia, 243 Kan. 662, Syl. ¶¶ 1, 2, 763 P.2d. 585 (1988). To give the instruction on aiding and abetting, there must be sufficient evidence to support the theory. The evidence supports giving the aiding and abetting instruction. Cortez’s statement to the police places him at the scene, with his brother, on the evening of the homicide. Maresa’s testimony was that she overheard Cortez admit he and Earl had killed someone. There was no unfair surprise involved. It was not error to give the aiding and abetting instruction.
VII. DID THE TRIAL COURT ERR IN COMMENTING ON CORTEZ’S SILENCE AT SENTENCING, AND DID THE COURT FAIL TO COMPLY WITH K.S.A. 22-3422?
At sentencing, after Cortez declined the opportunity to make a statement to mitigate the punishment, the court stated:
"Well again, as stated in the last case, it appears from the evidence, this is a particularly vicious crime. Apparently two young men, I don’t know whose participation amounted to what, stomped an old man to death, and who was also a family friend, and apparently over a bag of pork rind potato chips. And Mr. [Cortez] Green has not presented any evidence of mitigation, and we don’t know his side of the story of what happened that night.”
Cortez argues the sentencing judge’s reference to his failure to tell his side of the story “is a clear violation of” his right to remain silent under the Fifth Amendment to the United States Constitution. The right to remain silent extends to the sentencing phase of criminal trials. Estelle v. Smith, 451 U.S. 454, 463, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981).
Before imposing sentence, the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally, and the defendant, if he or she wishes to, may make a statement on his or her own behalf and present any evidence in mitigation of punishment. K.S.A. 1992 Supp. 22-3424(4). The judge’s comment did not violate Cortez’s Fifth Amendment right to remain silent. As required by statute, the judge merely observed there was no mitigating evidence presented by defendant for the court to consider in assessing the punishment for the crime. This claim is totally without merit.
Cortez also contends the court failed to comply with the al-locution requirement of K.S.A. 22-3422 that the court inform defendant of the verdict of the jury and ask whether defendant has any reason judgment should not be rendered. Cortez points out that the court never referred to the verdict in its comments when imposing sentencing on August 2, 1991. Cortez claims that the only remark addressed to him was when the judge asked if there was “anything you want to add personally.”
Allocution is the formal inquiry by the court of the defendant to determine if the defendant has any legal cause to show why the judgment should not be pronounced against him. Black’s Law Dictionary 76 (6th ed. 1990). When the defendant appears for judgment, he or she must be informed by the court of the verdict of the jury or the finding of the court and be asked whether he or she has any legal cause to show why judgment should not be rendered. If none is shown, the court shall pronounce judgment against the defendant. K.S.A. 22-3422.
Allocution is the appropriate time for motions for mistrial, new trial, arrest of judgment, or judgment of acquittal. The defendant is allowed adequate time for the filing and disposition of post-trial motions. K.S.A. 1992 Supp. 22-3424(3). Cortez filed his motion for new trial on July 11, 1991, alleging multiple trial errors. A hearing on Cortez’s motion for new trial was held July 12, 1991. There is no transcript of the hearing on the motion for new trial in the record on appeal, but the journal entry on the motion for new trial states:
“Thereupon, the Court, after hearing the statements and arguments of counsel, and being otherwise well and fully advised in the premises, finds that the Defendant’s Motion for New Trial is denied and that the Court proceeds with allocution.
“Thereupon, the Court further finds that the Defendant, Cortez Green, was found ‘guilty’ by verdict of jury after jury trial on the 24th day of June, 1991 of the charge of Murder in the Second Degree, in violation of K.S.A. 21-3402, a Class B Felony.
“And the Court inquires of the Defendant if there is any reason why judgment of the Court should not be pronounced against him, and none appearing to the Court, the Court does find and adjudge the Defendant, Cortez Green, ‘guilty’ of the charge of Murder in the Second Degree, in violation of K.S.A. 21-3402, a Class B Felony.”
Defendant had his allocution hearing July 11, 1991. Cortez was sentenced during a separate hearing on August 2, 1991. The judge was not required to again inquire if there was any legal reason why sentence should not be pronounced. Cortez’s claim that the trial judge failed to comply with the allocution requirements of K.S.A. 22-3422 is without merit.
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The opinion of the court was delivered by
Lockett, J.:
In accordance with Senate Resolution 1844, dated March 30, 1993, the Attorney General filed this mandamus and quo warranto action to determine the Governor’s authority to negotiate compacts with Indian tribes which authorize casino gambling or other Class III gaming on Indian lands which is not specifically authorized by Kansas statute or by the Kansas Constitution. Respondent removed the matter to the federal courts. The federal court subsequently remanded the action to this court.
After remand, at a prehearing conference the parties agreed that the issues would be limited to:
1. What is a lottery as that term is used in Art. 15, § 3 of the Kansas Constitution?
2. Did the adoption of Art. 15, § 3c alter the broad definition of lottery previously expressed in Kansas judicial decisions?
3. What effect do the provisions in the Kansas Criminal Code relative to gambling (K.S.A. 21-4302 through 21-4308) have on the issues herein, with particular reference to Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179 (10th Cir. 1993)?
4. With reference to the status of casino-type (Class III) gambling or gambling devices in Kansas, is there a distinction between the terms “permits” or “are legal,” and, if so, the significance thereof in this litigation?
To answer Issues 3 and 4, federal law must be applied.
The interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state and federal courts and must be followed. Murray v. State, 226 Kan. 26, Syl. ¶ 1, 596 P.2d 805 (1979). The interpretation of the constitution of the State of Kansas and the laws of Kansas by the Supreme Court of Kansas is controlling upon the federal and all Kansas courts. Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P.2d 731 (1958).
The federal courts are the proper forum to answer the federal questions posed in Issues 3 and 4, which relate both to the Johnson Act, 15 U.S.C. § 1171 et seq. (1988), and the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. (1988). We will only address the state constitutional questions found in Issues 1 and 2.
Since the admission of Kansas to the Union in 1861, the Kansas Constitution has provided that “[lotteries and the sale of lottery tickets are forever prohibited.” Kan. Const, art. 15, § 3. Statutory prohibitions of lotteries and the sale of lottery tickets were enacted in 1895. See L. 1895, ch. 152, §§ 1-6, codified in G.S. 1909, §§ 2856 through 2861 and later as G.S. 1949, 21-1501 through 21-1506. On November 4, 1986, Kansas citizens amended the Kansas Constitution to authorize a state-owned and operated lottery, providing:
“Notwithstanding the provisions of section 3 of Article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by a concurrent resolution approved by a majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game.” Kan. Const, art. 15, § 3c.
In 1990, the Kansas Legislature extended the life of “a state-owned lottery” indefinitely. L. 1990, ch. 370.
On October 17, 1988, the IGRA became law. The act classifies gaming into three categories and the provisions for regulation differ depending upon the class. Class I gaming is defined as “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies of celebrations.” 25 U.S.C. § 2703(6) (1988). Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribe and is not subject to the IGRA. 25 U.S.C. § 2710(a) (1988). Class II gaming on Indian lands is also within the jurisdiction of the Indian tribe, but it is subject to the IGRA and is regulated in part by the National Indian Gaming Commission. 25 U.S.C. § 2710(a)(2); 25 U.S.C. § 2705 (1988); 25 U.S.C. § 2706 (1988). Class III gaming is de fined as “all forms of gaming that are not class I gaming or class II gaming.” 25 U.S.C. § 2703(8). Class III gaming generally includes “slot machines, casino games including banking card games, horse and dog racing, pari-mutuel, jai-alai, and so forth.” S. Rep. No. 100-446, 100th Cong., 2nd Sess. 5 (1988), reprinted in 1988 U.S. Code Cong. & Ad. News 3071, 3073. Banking card games are those games in which the players play against the house and the house acts as banker; non-banking card games are those in which players play against each other. 1988 U.S. Code Cong. & Ad. News at 3079. Class III games may be operated on Indian lands in states that permit such gaming activities and are to be regulated pursuant to a tribal-state compact. 25 U.S.C. § 2710(d)(1), (3). Under the provisions of the IGRA, Indian tribes are allowed to conduct casino-type gambling on Indian lands only if “located in a State that permits such gaming for any purpose by any person, organization, or entity.” 25 U.S.C. § 2710(d)(1)(B).
On July 10, 1992, we held that the Governor had the authority to enter into negotiations with the Kickapoo Nation, but, in the absence of an appropriate delegation of power by the Kansas Legislature or legislative approval of the compact, the Governor had no power to bind the State to the terms thereof. State ex rel. Stephan v. Finney, 251 Kan. 559, 583, 836 P.2d 1169 (1992) (Finney I). On March 4, 1993, the Kansas Tribal-State Gaming Compact Act (KTSGCA) was enacted into law. The KTSGCA established the procedures for negotiating tribal gaming compacts with the State. On March 30, 1993, Senate Resolution 1844 required the Attorney General to bring an action to determine the Governor’s authority to negotiate compacts authorizing casino gambling and other Class III gaming on Indian lands in light of the gaming prohibitions contained in the Kansas Constitution and Kansas statutes.
On March 31, 1993, pursuant to the KTSGCA, Governor Joan Finney submitted to the Joint Committee on Gaming Compacts two proposed compacts between the State of Kansas and (1) the Prairie Band of Potawatomi Indians and (2) the Kickapoo Nation. The compacts provide for a wide range of casino-type gambling, including blackjack, poker, roulette, and keno. On March 31, 1993, pursuant to the KTSGCA, the proposed tribal-state compacts were submitted to the House and Senate of the Kansas Legislature. On April 2, 1993, the Senate -voted to reject both compacts, reasoning, in part, that approval would be premature absent a judicial determination of the issues raised in S. Res. 1844.
On April 15, 1993, the Attorney General filed this mandamus and quo warranto action. Respondent caused the action to be removed to federal court. Upon hearing, the United States District Court found that because the petitioner’s claims for relief could be resolved without deciding or addressing a substantial issue of federal law, the petition does not arise under federal law. The federal court then remanded the case to this court.
At oral argument, counsel for respondent made two challenges to the jurisdiction of this court to hear the matter. Respondent first claims that “whether Kansas is a state subject' to the provisions of the Indian Act” had already been decided in Finney I. Petitioner claims that respondent misconstrues the primary issue of the present case and that “whether Kansas is a state subject to the provisions of the Indian Act” is a federal question which only the federal courts have jurisdiction to determine. We agree with petitioner that this is a question' for the federal courts to consider. We need not discuss this' challenge further.
Respondent then asserts that the primary issue is whether Kansas is subject to the provisions of the IGRA as to Class III gaming. Respondent points out that the federal court which remanded this action to this court had jurisdiction to decide that issue. Petitioner notes that by contending that the IGRA controls this decision, respondent is repeating an earlier argument to support removal of the action to federal court. Petitioner. also points out that respondent’s assertion ignores the fact that after respondent removed this action to the federal courts, the case was remanded to the Kansas Supreme Court by the federal district court because the primary question required an interpretation of the Kansas Constitution.
The Kansas Supreme Court is the proper forum to decide the State constitutional issues raised by the petitioner. Respondent’s claim that this court is without jurisdiction has no merit.
I. WHAT IS A LOTTERY AS THAT TERM IS USED IN ART. 15, § 3 OF THE KANSAS CONSTITUTION?
Art. 15, § 3 of the Kansas Constitution provides:
“Lotteries. Lotteries and the sale of lottery Lotteries Lotteries tickets are forever prohibited.”
This provision was adopted as part of the Kansas Constitution by the Wyandotte Convention in July 1859 and ratified by the electors later that year.
Judicial Branch Interpretation
Since 1891, the Kansas Supreme Court has defined lottery in examining entrepreneurial attempts to circumvent the constitutional ban on lotteries. In State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984 (1891), the Attorney General sought to forfeit the charter of the Kansas Mercantile Association, which was conducting a business known as “playing policy.” Under the arrangement, a person, for an investment of from five cents to one dollar, would purchase a “vendor’s certificate.” The certificate entitled the buyer to a lead pencil and the selection of three numbers. The numbers were handed in to the association’s offices. A drawing was held twice a day on the stage of Hanson’s Opera House in Kansas City. There, 78 numbers were placed inside a wheel, which was then spun for 30 minutes. A blindfolded boy would withdraw 12 numbers at a noon drawing and 13 numbers during the evening drawing. The numbers were posted on a blackboard and were sent to association offices in Atchison, Wichita, Leavenworth, and several out-of-state locations. If a purchaser’s three numbers had been drawn, the purchaser would win a prize ranging from 45 cents to $2,500.
We construed the word lottery “in the popular sense, with a view of remedying the mischief intended to be prevented.” 45 Kan. at 353. Examining cases from other jurisdictions which found such activities as a gift sale of books, prize concerts, prize tickets which included a newspaper subscription, and raffles to be lotteries, we found the reasoning in a New York case, Wilkinson v. Gill, 74 N.Y. 63 (1878), dispositive. New York had a statute outlawing lotteries. In Wilkinson, a similar scheme, also called “playing policy,” was challenged. The New York appellate court reasoned:
“The word ‘lottery’ has no technical legal meaning. ... It is defined by Webster, ‘a scheme for the distribution of prizes by chance, or the distri bution itself,’ and he defines ‘lot’ as ‘that which causes, falls or happens; that which in human speech is called chance, fortune, hazard,’ and ‘to draw lots’ is ‘to determine an event by drawing one thing from a number, whose marks are concealed from the drawer, and thus determining an event.’ Worcester defines ‘lottery’ as ‘a hazard in which sums are ventured for a chance of obtaining a greater value.’ The language of FOLGER, J., in 56 N.Y. 424 [1874], may be adopted as a result of the accepted definitions. ‘Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out by the public, what and how much he who pays the money is to have for it, that is a lottery.’ ” 74 N.Y. at 66.
Relying on Wilkinson, we declared the association’s charter null and void after concluding that the association’s business was “a scheme for the distribution of prizes by chance,” and that a purchaser did so “to try his luck at ‘fortune’s wheel,’ and not to get a lead pencil.” 45 Kan. at 355.
In In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707 (1895), Smith was arrested for operating a lottery in Wyandotte County. He sought release on a writ of habeas corpus, contending that since there was no statute making the operation of a lottery a crime, he should be released. We rejected this argument, finding that he was charged under a statute which made punishable, by fine or imprisonment, engaging “in any unlawful calling whatever.” 54 Kan. at 706. In so doing, we reinforced the constitutional prohibition against lotteries and defined a lottery as “a hazard in which sums are ventured for a chance at obtaining a greater value.” 54 Kan. at 707.
In Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708 (1895), defendant was a partner in an Ottawa dry goods store. To stimulate business, Davenport put a small box containing $25 in the store window along with a sign stating that anyone who purchased at least 50 cents worth of goods would be given a key which might unlock the box. If it did, the money belonged to that purchaser. Keys would be tried in the box approximately two months after the box was placed in the window. Davenport was arrested and charged with violating Ottawa city ordinances prohibiting the sale of lottery tickets and running a gambling house. He was found guilty and appealed, contending his enterprise was not a lottery because the element of consideration was lacking. We disagreed, reasoning that when a purchaser bought goods during this period, the purchaser was also purchasing a chance to win the money in the box. 54 Kan. at 717. We found no distinction between this case and Mercantile. 54 Kan. at 718.
In State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929 (1936), defendant implemented a “bank night” as an advertising means of increasing theater ticket sales. The theater deposited a certain amount of money in a bank account. Anyone 16 years or older was permitted to register to win the money, whether buying a theater ticket or not. Each registered person was assigned a number. On the designated “bank night,” the numbers were put in a box, from which the winning number was selected. The Attorney General brought a quo warranto action to enjoin the theater, contending that “bank night” was a lottery. Both parties argued that the three necessary elements in a lottery were a prize, a chance, and a consideration. Defendant argued “bank night” was not a lottery, reasoning that since the purchase of a theater ticket was not required to register to win, the element of consideration was lacking. We disagreed, finding that the increased ticket revenue generated by bank nights was sufficient consideration coming directly or indirectly from those entitled to the chances. 144 Kan. at 700. We held:
“The “bank night’ theater plan as set out in the answer of tire defendant in this quo warranto action, and copied in the opinion, is held to include the three necessary elements of prize, chance and consideration, sufficient to make it a policy or scheme of drawing in the nature of a lottery as prohibited by article 15, section 3, of the constitution of the state of Kansas, and as described and defined in R.S. 21-1501.” 144 Kan. 687, Syl. ¶ 1.
In State v. Brown, 173 Kan. 166, 244 P.2d 1190 (1952), Brown was charged with violating G.S. 1949, 21-1502, which prohibited the possession or sale of a lottery, or similar, ticket. Brown had 823 punchboards in his possession and had sold punchboard tickets. Brown contended that the punchboard was not a lottery ticket. We rejected this argument, labeling it a “distinction without a difference.” 173 Kan. at 169. Reviewing the earlier Mercantile, Davenport, and Fox Theatre cases, we found “little difficulty in concluding that the punchboards described in the information are gambling devices and/or schemes designed for the distribution of prizes by chance and hence, within the mean ing of that term as used in our constitution and statutes, must be regarded as ‘lotteries’ per se.” 173 Kan. at 169.
In 111, 283 P.2d 418 (1955), the challenge to lotteries arose from parimutuel betting on greyhound races in Sedgwick County. G.S. 1949, 21-1510 permitted wagering on races two weeks each year. The Sedgwick County Attorney sought to enjoin the operation as violating the art. 15, § 3 prohibition against lotteries. Bissing, the race track operator, contended that the operation did not constitute a lottery or the sale of lottery tickets and that the statute permitted wagering two weeks during the year. The trial court adopted Bissing’s theory and denied an injunction for the remainder of the two-week wagering period, but enjoined the operations for the remainder of the calendar year. The State appealed the denial of the injunction.
We reversed. First, we reviewed learned treatises on lotteries, finding that authorities agreed that the essential elements and ingredients of a lottery are: (1) consideration, (2) prize, and (3) chance. 178 Kan., at 117. Next, we referred to the statutory definition of a lottery contained in G.S. 1949, 21-1506:
"The term 'lottery,’ as used in this act, includes schemes for the distribution of money or property among persons who have given or agreed to give a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.” 178 Kan. at 117.
Citing the public policy of Kansas prohibiting lotteries and the former cases involving attempts to circumvent the prohibition, we reasoned that “an undertaking whereby persons pay a consideration for the chance to receive money or property constitutes a lottery.” 178 Kan. at 118. (Emphasis in original.) We therefore held that parimutuel betting on dog races constituted a lottery and the sale of lottery tickets. 178 Kan. 111, Syl. ¶ 4.
In State ex rel. v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97 (1970), we determined that tuning in a giveaway television program was not consideration; therefore, the game was not a lottery. Highwood Service, Inc., owned a Topeka television station which intended to broadcast^ program called “Dialing For Dollars.” The program involved cutting sections of local telephone directories into segments containing 20 names, placing them in a rotating cage, drawing one slip at random, selecting one name from the slip, and telephoning that person. If the person called knew a predesignated code number and the amount in the jackpot, the person won. The code number and jackpot could be determined from watching the programs. If the person telephoned answered incorrectly, or was not reached, that person received a prize of one dollar. The program was designed to increase the viewing audience for advertising purposes. The Attorney General sought to enjoin the program, contending it was a lottery. The trial court ruled that the program was not a lottery within the meaning of K.S.A. 21-1501 (Corrick). The State appealed. The parties agreed that the elements of prize and chance were present in the program. However, they differed with respect to the element of consideration, with the defendant asserting that element was lacking. Distinguishing the Fox Theatre “bank night” case for requiring some overt act of participation, such as registering to win, we found:
“What does, and what does not, provide the consideration necessary to the operation of a lottery has been the subject of much judicial verbiage to which, at this time, we shall not add materially. It is sufficient here to observe that, in our opinion, the bounds of reason would be exceeded were we to say that the requirement of consideration has been fully met whenever a TV fan turns the dial of his machine to Dialing for Dollars and then relaxes in his easy chair awaiting the call which he hopes will bring him fortune.” 205 Kan. at 823.
After a brief review of the constitutional prohibition against lotteries, and of lottery definitions, we concluded that in 1859, when the constitution was adopted, and in recent years as well, the common understanding of a lottery included a “consideration of value” which did not encompass the act of tuning in a giveaway television program in one’s home. 205 Kan. at 826-27.
In 1969, the Kansas Legislature, in establishing a Kansas Criminal Code, revised the laws of this state concerning gambling. See L. 1969, ch. 180. The former statutes, including K.S.A. 21-1501 through 21-1506 (Corrick), prohibited specific activities such as lotteries. The new statutes defined prohibited conduct generally.
The 1971 Kansas Legislature created a “bingo” exception to the definition of gambling. L. 1971, ch. 111, § 1. Codified as K.S.A. 1971 Supp. 21-4302, the amendment defined, in subsec tion (2), a lottery as an enterprise “wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance.” Subsection (3) excluded as “consideration” money paid to participate “in any bingo game or a game of chance with comparable characteristics.”
In State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972), the bingo exception was challenged. At a gambling raid at the American Legion Club in Iola, agents from the Attorney General’s office saw two patrons in close proximity to five slot machines. They were charged with gambling; the acting club manager was charged with possession of a gambling device. The trial court held as a matter of law that no crime had been committed because of the bingo exception in K.S.A. 1971 Supp. 21-4302. The State appealed. The issue on appeal was whether the phrase “bingo and games of comparable characteristics” included slot machines. We began our discussion by deciding that the issue could not be decided without considering and discussing the elements of a lottery, and, in so doing, making a determination of the constitutionality of the bingo law. 210 Kan. at 443.
Justice Owsley’s well-reasoned opinion for the court, striking down the bingo law as unconstitutional, is worth repeating, for it summarizes the history of art. 15, § 3 and its underlying principles:
“Article 15, section 3 of the Kansas Constitution provides: ‘Lotteries and the sale of lottery tickets are forever prohibited.’
“Although this constitutional provision was undoubtedly borrowed from states previously admitted to statehood, it is apparent that the framers of the constitution of this state conscientiously determined that prohibiting lotteries forever was a method of promoting a sound basis for the welfare and growth of this state. Since its adoption, many efforts have been made by persons and organizations to circumvent this constitutional provision. Such efforts have generally been made for profit, seeking to elicit money from those who cannot refrain from the instinctive weakness of humanity to gamble.
“This court has steadfastly adhered to the constitutional provision by striking down such efforts. (The State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707, [sale of lottery tickets]; The State, ex rel., v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan, 687, 62 P.2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d 386, [punchboards]; State v. Brown, 173 Kan. 166, 244 P.2d 1190, [punchboards]; State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418, [parimutuel betting on dog races].)
“It has been firmly established from these cases as the law of this state that a lottery has three essential elements; namely, (1) consideration, (2) prize, and (3) chance.
“In State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97, we held that the turning of a dial of a television set to a certain program which awarded prizes did not constitute ‘consideration’ within the meaning of K.S.A. 21-1501 (repealed L. 1969, ch. 180) and Article 15, section 3 of the Kansas Constitution. We also stated at page 825:
‘But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts. . . .’
“The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions, but-to govern future contingencies.
“Although a constitution is usually a declaration of principles of fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing. Our constitution put a ban on lotteries and the sale of lottery tickets in plain, unambiguous terms and emphasized the intent of the framers by the use of the language ‘shall be forever prohibited in this state.’ Prohibitory provisions in a constitution are self-executing to the extent that anything done in violation of them is void.
“It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself. (16 C.J.S. Constitutional Law, § 13.) Any attempt by the legislature to obliterate the constitution so construed by the court is unconstitutional legislation and void. Whenever the legislature enacts laws prohibited by judicially construed constitutional provisions, it is the duty of the courts to strike down such laws.
"The legislature, by enacting the statutes in question, attempted to declare that ‘consideration’ shall not include money paid to participate in a bingo game. The legislature, in effect, sought to remove ‘consideration’ as one of the elements of a lottery. In so doing, the legislature exceeded its constitutional power. The constitution must be interpreted and given effect as the paramount law of the state, according to the spirit and intent of its framers. A legislative enactment in evasion of the terms of the constitution, as properly interpreted by the courts and frustrating its general and clearly expressed or necessarily implied purpose, is clearly void.
“The fact that the statute prohibits a profit to any private shareholder, member or employee of an organization exempt from tax, does not create immunity for an enterprise which violates the provisions of the constitution. We cannot insert into our constitution an exception that the framers failed to make. Their reasoning could have been in accord with Harriman Institute of Social R. v. Carrie Tingley C. C. Hospital, 43 N.M. 1, 84 P.2d 1088 (1938), which said:
‘Now the gambling spirit feeds itself with as much relish upon a charity lottery as upon any other kind. If the average person be consumed with a desire to take a chance and get something for nothing, it matters not to him whether the promoter makes a profit or that the profit goes to charity. Indeed, if it does go to charity, his participation wears a cloak of piety otherwise denied it. He thus may be persuaded to purchase tickets oftener and in larger volume because operated in the name of charity or religion. The point we seek to make is that widespread participation in a charity lottery is just as baneful in its effect upon the public as widespread participation in any other kind of lottery. And we think it will be conceded, indeed we feel this court has said as much, that our lottery statutes sought to prevent widespread participation in any kind of lottery.’ (pp. 6, 7.)
“It is immaterial whether slot machines have ‘comparable characteristics’ to bingo since bingo in the context of the statutes falls before the mandate of the constitution. Statutory provisions which attempt to legalize bingo or the use and possession of slot machines are inconsistent with our constitution.
“It is not our proper function to express any opinion with respect to the moral aspects of either operators or players of bingo. We recognize that many respectable persons look upon bingo as an innocent and harmless recreation, and the benefits of bingo are frequently applied to worthwhile religious and charitable purposes.
“In view of the foregoing it is our holding that the bingo exception to the gambling laws passed by the 1971 legislature is unconstitutional and void.” 210 Kan. at 444-46.
The historical thread in Kansas, then, has been from complete prohibition to the authorization and regulation of well-defined forms of gambling. It is clear that the term lottery was broadly defined in Kansas judicial decisions to encompass all forms of gambling which involve consideration, chance, and prize. Clearly, the term lottery, as used in art. 15, § 3 of the Kansas Constitution, has been defined by this court as any game, scheme, gift, enterprise, or similar contrivance wherein persons agree to give valuable consideration for the chance to win a prize or prizes. See State ex rel. Stephan v. Finney, 251 Kan. 559, 569, 836 P.2d 1169 (1992) (Finney I).
II. DID THE ADOPTION OF ART. 15, § 3c ALTER THE BROAD DEFINITION OF LOTTERY PREVIOUSLY EXPRESSED IN KANSAS JUDICIAL DECISIONS?
In 1974, the constitution was amended by Kansas voters to permit bingo games to 'be conducted by bona fide nonprofit religious, charitable, fraternal, educational, and veterans organizations. Kan. Const, art. 15, § 3a. (L. 1974, ch. 461). The Senate resolution proposing the amendment did not provide an explanatory note for the voters.
In 1986, Kansas voters amended the constitution to permit parimutuel wagering in . horse and dog racing and authorize the State to own and operate a lottery. Sixty-four percent of Kansas voters approved the passage of art. 15, § 3c in the November 1986 general election (515,893 for; 291,411 against).
Art. 15, § 3b, which permits parimutuel betting in horse and dog racing, provides:
“Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may permit, regulate, license and tax, at a rate not less than 3% nor more than 6% of all money wagered, the operation or conduct, by bona fide nonprofit organizations, of horse and dog racing and parimutuel wagering thereon in any county in which: (a) A majority of the qualified electors of the county voting thereon approve this proposed amendment; or (b) the qualified electors of the county approve a proposition, by a majority vote of those voting thereon at an election held within the county, to permit such racing and wagering within the boundaries of the county. No off-track betting shall be permitted in connection with horse and dog racing permitted pursuant to this section.”
The House resolution proposing this amendment included an explanatory note on the ballot that informed the voter:
“This proposed amendment would authorize the legislature to permit, license, regulate and tax horse and dog races and parimutuel wagering on such races, conducted by nonprofit organizations, in any county where a majority of the voters have approved this proposition or a later proposition authorizing tile conduct of the races and wagering in their county but would prohibit off-track betting.
“A vote for the proposed amendment would permit horse and dog racing with parimutuel wagering in any county where a majority of the voters approve this proposition or a later proposition authorizing the conduct of the races and wagering in their county but would prohibit off-track betting.
“A vote against the proposed amendment would continue the current prohibition against parimutuel wagering on horse and dog races.” L. 1986, ch. 416, § 2.
Art. 15, § 3c, which permits a state-owned lottery, provides:
“Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by a concurrent resolution approved by a majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game.”
This proposed amendment also included an explanatory statement to be printed on the voting ballot, which read:
“This proposed amendment would authorize the legislature to provide for a state-owned and operated lottery.
“A vote for the proposed amendment would permit the legislature to provide for operation of a state-owned and operated lottery until June 30, 1990, with authority for the legislature to authorize the operation of such lottery after that date by adopting a concurrent resolution by a majority vote of all members of each house during the regular session of the legislature in 1990. The legislature shall provide by law for informing the public of the odds of winning prizes in the lottery.
“A vote against the proposed amendment would continue the current prohibition against such lotteries.” L. 1986, ch. 414, § 2.
Legislation was enacted after the passage of each constitutional amendment, regulating bingo (K.S.A. 79-4701 et seq.), allowing horse and dog racing with parimutuel betting (K.S.A. 74-8801 et seq.), and allowing a state-owned and operated lottery (K.S.A. 74-8701 et seq.).
Since 1891, we have construed the term “lottery” to include any act of gaming which included the elements of consideration, chance, and prize. It is presumed that the legislature acts with full knowledge as to judicial decisions on prior law. State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988). Before 1974, Kansans did not have legalized gambling and lotteries in any form. Against this general backdrop, Kansas entrepreneurs sought devices to spur business and skirt the constitutional prohibition. Until 1974, we struck down every attempt to circumvent the constitutional ban from “playing policy” numbers (State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984 [1891]) to theater bank nights (State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929 [1936]) to parimutuel betting (State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418 [1955]) to bingo and slot machines (State v. Nelson, 210 Kan. 439, 502 P.2d 841 [1972]). Soon after the Nelson decision, the Kansas voters passed the first amendment to the art. 15 prohibition against lotteries by permitting bingo games to be conducted by bona fide nonprofit organizations. Art. 15, § 3a. Since then, the constitutional prohibition has been amended twice to allow horse and dog racing, and parimutuel wagering thereon, art. 15, § 3b, and the authorization of a “state-owned and operated lottery.” Art. 15, § 3c.
We have reviewed how this court has defined lottery prior to the passage of the constitutional amendment to allow state-owned lotteries. There is little evidence in the record of what the Kansas legislators and voters thought or intended when approving art. 15, § 3c to permit all forms of gambling involving consideration, chance, and prize. We will now examine how the executive and legislative branch have acted since the amendment was approved.
The Executive Branch Interpretation
The executive branch’s actions are represented by the opinions of the Attorney General. The following Attorney General opinions indicate that the executive branch’s interpretation of the meaning of the term lottery as used in art. 15, § 3c includes casino gambling.
The first inquiry concerned whether § 3c allowed the State to participate in a multi-state lottery. Att’y Gen. Op. No. 87-16. The opinion stated the legislature did not intend to specifically preclude multi-state lotteries in the proposed constitutional amendment that later became § 3c. Both the legislature and the voters understood the purpose of the lottery amendment was to raise revenue and that a multi-state lottery met the revenue raising aspect of the intent of the amendment. Therefore, the Attorney General opined, “It appears that the intent of the voters in approving the lottery was to allow closely regulated gambling and to raise money for the state. A multi-state lottery would not be repugnant to the intent of the constitutional provisions.”
In response to a legislator’s inquiry regarding the import of the IGRA the Attorney General noted an earlier opinion by stating: “In . . . No. 87-38 we concluded that, because the term lottery has been defined broadly by the Kansas courts to include any game involving the three elements of consideration, chance and prize, and since article 15, section 3c does not limit the types of games the state may conduct, the state is constitutionally authorized to operate any game involving the three elements ‘be it “lotto” or “casino gambling” Att’y Gen. Op. No. 91-119.
The most detailed explanation was issued by the Attorney General in February 1987, in response to a question posed by a state legislator whether the game of “lotto” was authorized under art. 15, § 3c of the Kansas Constitution. The Attorney General opined:
“The constitutional provision as voted on and passed by the Kansas electorate did not define . or restrict • the term ‘lottery,’ nor did it define or restrict itself to any specific games. The definitional responsibility of defining ‘lottery’ is therefore passed to the courts of this state. State v. Nelson, 210 Kan. 439, 445 (1972). In Nelson, the Court stated that ‘[t]he definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time.’ Id. at 445.
“In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11 (1961), the Court stated that a constitution is not to be narrowly or technically construed but its language ‘should be held to mean what the words imply to the common understanding of men.’ This position was adopted in the later case of State, ex rel., v., Highwood Services, Inc., 205 Kan. 821 (1970), when the court used resources available around the time the Kansas Constitution was adopted in 1859 to define ‘lottery.’ The Court wrote in Highwood at 825 and 826 that ‘in ascertaining the meaning of constitutional provisions courts should consider what appears to have been the intendment and understanding of the people at their adoption. (See, also, State v. Sessions, 84 Kan. 856, 115 Pac. 641).’ Thus, in defining the term ‘lottery’ the Court has adopted common usage definitions.
“In Highwood, the Court’s research included the following:
'In Abbott’s Law Dictionary, published in 1879, we have found this definition of a lottery:
“A scheme for the distribution of prizes by chance, among buyers of the chances.
“Such schemes were formerly very common,, were authorized by law, and were even set on foot, in many instances, by the authorities, for raising revenue for public or benevolent purposes. In view of the ill effects of the element of gambling involved, they are now very generally made unlawful.”
‘Foremost among the citations appended to the text, the author has placed the following:
“A lottery is a distribution of prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize. United States v. Olney, 1 Abb. U.S. 275 (1868).”
‘Webster’s Third New International Dictionary, unabridged, (1964) conveys much the same idea as it defines lottery:
“a scheme for the distribution of prizes by lot or chance; esp.: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them, usu. as determined by the numbers on tickets as drawn at random (as from a lottery wheel).”
‘To similar effect, see Oxford Illustrated Dictionary (1962) and The Random House Dictionary of the English Language, the Unabridged Edition (1967).’
“The court has refined the various definitions into three required elements in order to be recognized as a lottery in Kansas. ‘The court has held that the essential elements of a lottery are three: (1) consideration, (2) prize, and (3) chance. (State, ex rel. v. Bissing, 178 Kan. 111, 283 P.2d 418).’ Highwood, 205 Kan. at 823. Using this three element definition the court has adhered to the constitutional provision banning lotteries and struck down such efforts prior to Kan. Const. Art. 15, sec. 3c. ‘The State, ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 70, [sale of lottery tickets]; The State, ex rel. v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d 386, [punch boards]; State v. Brown, 173 Kan. 166, 244 P.2d 1190, [punch boards]; State, ex rel. v. Bissing, 178 Kan. 111, [parimutuel betting on dog races].’ Nelson, 210 Kan. at 444.
“In considering the lottery provision, numerous individuals and state agencies advanced definitions for the term lottery. Included in the minutes were reports that ‘new forms of lottery games are constantly being invented,’ Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Ross Mills, Legislative Research Department, Attachment A., and ‘there are currently several types of lottery products being played . . . weekly game or draw lottery . . . instant lottery ticket . . . online system . . . numbers game . . . pick four.’ Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Secretary of Revenue Harley Duncan, Attachment B.
“It was further presented that some states have restricted their lottery to specific games. Minutes of the House Federal and State Affairs Committee, January 21, 1986, testimony of Patrick J. Hurley, Attachment C. The Kansas Legislature did not preclude any specific game or games with the language used in 1986 Senate Concurrent Resolution 1609, L. 1986, ch. 414.
“In Attorney General Opinion No. 87-16, this office indicated that:
‘[t]he intent and understanding of both the legislature and the people seems to have been to have a government controlled lottery as a revenue raising measure. Minutes of the House Federal and State Affairs Committee, January 21, 1986, testimony of Secretary of Revenue Harley Duncan, Attachment A.
’It appears that the intent of the voters in- approving the lottery was to allow closely regulated gambling and to raise money for the state. A multi-state lottery would not be repugnant to> the intent of the constitutional provisions.’
“In our judgment, the game ‘lotto’ would fall within the scope of the Kansas constitutional ‘lottery’ amendment since it is an unrestricted provision. The lottery could include both an. active game and a passive game. An active game has been recognized as a lottery game in which the player takes action to determine the outcome by choosing a number or set of numbers to bet on, attempting to match the numbers later drawn. A passive game is a lottery game in which tire player takes no active part in determining the outcome; the ticket sold is either a winner or a loser, and no choices of numbers are made. Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Secretary of Revenue Harley Duncan. Attachment B. Again, to be recognized as a lottery the three (3) essential elements must be present in either an active or passive game.
“The Kansas Supreme Court in Highwood> supra, came to the conclusion that:
‘In short, we entertain the opinion that not pnly in 1859, when the constitution was adopted, and in 1895, when K-S.A. 21-1506 was enacted, but in recent years as well, the common understanding of a lottery entertained by men in general has been that, a consideration of value must flow from those who participate. We gravely doubt that had the ordinary man in the streets in 1859 been able to envision the advent of television he would have characterized as a lottery the give-away program known as Dialing for Dollars.’ 205 Kan. at 826.
“In keeping with the court pronouncement that the definition must remain constant and should withstand the test of time, any game, no matter the extent of player participation or the title assigned to the game, be it ‘lotto’ or ‘casino gambling,’ as long as it is state owned and operated and involves the essential elements discussed above, it would be classified as a lottery.
“It is therefore our opinion that a state-owned and' operated lottery could include any game or combination of games, as long as there is consideration, chance and prize involved in each game. Such a game would not be repugnant to the intent of the constitutional provision.” Att’y Gen. Op. No. 87-38.
The next inquiry by the legislature was whether a constitutional amendment was, inter alia, required in order to:- prohibit casino gambling in the state. Att’y Gen. Op. No. 92-1. The Attorney General opined that a constitutional amendment was not required and that the legislature could statutorily prohibit specific types of gaming so long as no one, including the State, could operate that type of game. The final relevant Attorney General opinion concerned whether video lottery games fell within the category of Class II gaming under the IGRA. Att’y Gen. Op. No. 92-46. The Attorney General concluded that video lottery games fell under Class III gaming as defined by the IGRA and not Class II.
The Attorney General’s interpretation of the meaning of the term “lottery” as used in art. 15, § 3c is, then, any game involving the three elements of consideration, chance, and prize, and this definition includes casino gambling.
LEGISLATIVE ACTION
Petitioner contends that the adoption of art. 15, § 3c substantially altered the broad definition of lottery previously expressed in Kansas judicial decisions. Petitioner claims that the intent of the legislature, which proposed the amendment, and the voters who approved it was not to allow every form of game involving chance, consideration, and prize. Petitioner asserts this intent to authorize and implement a very limited form of gambling known as a “lottery” is shown by the amendment’s use of the term “state-owned lottery.” Respondent, on the other hand, argues that the clear language of the amendment, unhindered by limitation or definitions, should prevail, despite what the legislators may have intended. Moreover, respondent contends the simultaneous passage of the parimutuel wagering and lottery amendments indicated a general desire by Kansas voters to allow Class III gaming in Kansas.
Petitioner asserts that the legislative history indicates that the legislature intended to permit only the type of lottery games played in certain states. From all the testimony for and against the proposed amendment to allow a state-owned lottery, plus the attendant publicity generated by lotteries in other states (see Minutes of House Committee on Federal and State Affairs, January 21, 1986, p. 2), we note that the discussion was unmistakably focused on the lottery proposed by the legislature and similar to those already existing in the states operating lotteries. There is no indication that during the hearings and debate the legislature intended to define what constituted a “state-owned lottery” or attempted to limit what types of gambling the State could constitutionally own and operate.
Enabling legislation codified as the Kansas Lottery Act, K.S.A. 74-8701 et seq., set the initial scope of the State lottery. K.S.A. 74-8710 provides for the adoption of rules and regulations governing the establishment and operation of the State lottery. The legislature restricted the variety of lottery games to be conducted:
“Temporary and permanent rules and regulations may include but shall not be limited to:
(a) The types of lottery games to be conducted, including but not limited to instant lottery, on-line and traditional games, but not including games on video lottery machines.”
Respondent argues it does not matter what the legislators intended when passing art. 15, § 3c to permit a state-owned lottery. As authority, respondent cites Colorado Interstate Gas Co. v. Board of Morton County Comm’rs, 247 Kan. 654, 802 P.2d 584 (1990). Colorado Interstate concerned the exemption of merchants’ and manufacturers’ inventory from ad valorem taxation pursuant to art. 11, § 1 of the Kansas Constitution, which had been approved by Kansas voters in 1986. The issue before this court was whether stored natural gas owned by public utilities fell within the merchants’ and manufacturers’ inventory exemption. Despite arguments that the legislative framers of the amendment did not intend to exempt the stored natural gas of public utilities, we applied the clear language of the amendment and “what persons of common understanding would imply from the words used therein,” and found that the natural gas stored by utilities was exempt. 247 Kan. at 662-63.
Respondent asserts that, like Colorado Interstate, in applying the clear language of the amendment and what persons of common understanding would give to the words in question, this court is bound to continue its broad interpretation of the term lottery when construing Art. 15, § 3c. We agree the respondent is correct in its analysis that Colorado Interstate could be the cornerstone of our decision. We also note that while the constitutional ban against lotteries may be self-executing, the amendment to the constitution, § 3c, creates an exemption which is not self-defining. Because the constitutional provision is not self- defining, the definitional function is a function of the courts. We could also follow the sound reasoning of the Attorney General and reach the same conclusion. We choose not to follow either of these paths but instead will note the clear path the legislature has followed from 1895 to the present to determine the question.
In L. 1895, ch. 152, § 6, the legislature defined the term “lottery” to include
“schemes for the distribution of money or property, among persons who have given or agreed to give, a valuable consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name.”
This court defined lottery in 1891 in State ex rel. v. Mercantile Association, 45 Kan. 351, 353-54, 39 Pac. 708 (1891).
The Kansas Criminal Code enacted by the legislature now contains a broad prohibition against gambling, gambling operations, and gambling devices. See K.S.A. 21-4302 through 21-4308. “Gambling” is defined as making a bet or entering or remaining in a gambling place with intent to make a bet, to participate in a lottery, or to play a gambling device. K.S.A. 21-4303. Significantly, the legislature defined a "bet” as “a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value.” The legislature then stated, “A bet does not include: ...(e) a lottery operated by the state pursuant to the Kansas lottery act.” (Emphasis added.) K.S.A. 21-4302(1). Furthermore, a lottery is defined as “an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance,” but this definition does not include “a lottery operated by the state pursuant to the Kansas lottery act.” (Emphasis added.) K.S.A. 21-4302(2). Finally, “consideration” does not include “sums of money paid by or for participants in any lottery operated by the state pursuant to the Kansas lottery act.” (Emphasis added.) K.S.A. 21-4302(3)(b). The legislature clearly has indicated that gambling operated by the State pursuant to the Kansas Lottery Act is not included in the criminal prohibition against gambling.
The bills and concurrent resolutions submitted to the legislature since 1990 indicate the interpretation of art. 15, § 3c by the legislative branch is that the constitution permits the State to operate casino gambling, and a constitutional amendment is re quired to permit a private entity to operate casino gambling. In 1990, a concurrent resolution was proposed in the Senate to amend the constitution to allow the legislature to permit, regulate, license, and tax the operation or conduct of off-shore casino gambling on certain riverboats by private operators. S. Con. Res. 1647. This resolution died on general orders. In 1993, a concurrent resolution was proposed again to amend the constitution to allow a single casino gambling establishment to be located on or adjacent to the parimutuel racetrack operated in Kansas City, Kansas, as well as on Indian reservations. The proposed constitutional amendment would contain an explanatory statement for voters indicating a vote against the amendment “would continue the current prohibition applying to casino gaming.” S. Con. Res. 1608. This resolution has been held over for the 1994 legislative session.
In 1992, three bills were introduced to amend and supplement the Kansas Lottery Act to allow the State lottery agency to operate and conduct casino gambling on excursion boats, S.B. 620, S.B. 772, and H.B. 3191. S.B. 620 and H.B. 3191 died in committee. S.B. 772 was killed on final action in the Senate. None of the bills required that the state-owned casino gambling on excursion boats bills be submitted to the voters as a constitutional amendment.
In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision. In interpreting and construing the constitutional amendment, the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that cause the amendment to be submitted. A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to persons of common understanding. State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, Syl. ¶ 4, 473 P.2d 97 (1970). A constitution should not be interpreted in any refined or subtle sense but should be held to mean what the words imply to the common understanding of persons. State v. Sessions, 84 Kan. 856, Syl. ¶ 1, 115 Pac. 641 (1911). When interpreting the constitution, each word must be given due force and appropriate meaning. Colorado Interstate Gas Co. v. Board of Morton County Commr’s, 247 Kan. at 660; State, ex rel., v. Hines, 163 Kan. 300, 304, 182 P.2d 865 (1947).
The importance of understanding the intentions of the legislature in proposing the amendment cannot be understated. “ ‘[T]he polestar in the construction of constitutions is the intention of the makers and adopters.’ ” Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939) (quoting 11 Am. Jur., Constitutional Law § 61). Where the purpose of the framers of constitutional provisions is clearly expressed, it will be followed by the courts.
Here, terms of such provisions are not entirely free from doubt; therefore, they must be construed as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, and the words employed should be given a practical interpretation which will give them effective operation and suppress the mischief at which they were aimed. Hunt v. Eddy, 150 Kan. 1, Syl. ¶ 3. To obtain the object and purpose contemplated at the time art. 15, § 3c was adopted, we have reviewed (1) the interpretation of the judicial branch of the term lottery in art. 15, § 3 since 1891 and (2) the Attorney General opinions.
In addition, we have noted the legislature’s 1895 definition of a lottery and followed the legislative history of the statutes banning lotteries and gambling and the amendments to the constitutional prohibition of lotteries; pointed out that the explanatory statement to the proposed amendment informed the voters that a vote against the amendment would continue the current prohibition (art. 15, § 3) against such lotteries; observed that the bills introduced during legislative sessions since the approval of art. 15, § 3c to allow the State lottery agency to operate and conduct casino gambling on excursion boats follow the Attorney General opinions and do not require a constitutional amendment for passage; and, finally, noted that the legislature did not include a lottery operated by the State pursuant to the Kansas Lottery Act in the general prohibition against gambling.
Contrary to petitioner’s position, a reading of the legislative history prior to and subsequent to when the constitutional amendment was enacted leaves no doubt that the legislature intended but one result: the advent of a state-owned and operated lottery, developed, organized, and operated to provide revenue and not limited to lotteries such as those functioning in other states, A state-owned lottery, as that term is used in art. 15, § 3c of the Kansas Constitution, means any state-owned and operated game, scheme, gift, enterprise, or similar contrivance wherein a person agrees to give valuable consideration for the chance to win a prize or prizes.
Article 15, § 3c of the Kansas Constitution is not self-executing. Implementation of additional forms of state-owned and operated gambling must be enacted by the legislature.
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The opinion of the court was delivered by
Six, J.:
This first-degree murder case considers: (1) whether the prosecutor violated the trial court’s order in limine on evidence of gang membership; (2) alleged abuse of trial court discretion in: (a) refusing to strike a police officer’s testimony; (b) refusing to grant the defendant’s motion for a mistrial when two jurors indicated that they had seen a newspaper article related to the trial; and (c) striking and prohibiting further cross-examination concerning the probationary status of an identification witness; (3) alleged error in refusing to use the defendant’s requested jury instruction on involuntary manslaughter; and (4) sufficiency of the evidence. Defendant abandoned, at oral argument, his claim that an exhibit introduced through the State’s firearms expert was error.
Defendant Willie J. Bowen appeals from his convictions of one count of first-degree murder and one count of aggravated battery. K.S.A. 1992 Supp. 21-3401 and K.S.A. 21-3414(c). Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (defendant convicted of a class A felony or a maximum sentence of life imprisonment imposed).
We find that the trial court’s limitation on Bowen’s cross-examination of an identification witness was harmless error. We find no error on the remaining issues and affirm.
Facts
Because sufficiency of the evidence is an issue, we set out the facts in detail. At approximately 9:50 p.m. on January 21, 1992, Kent McCray was driving on Stadium Street in Wichita when he was flagged down by Lena Summers. Summers opened the passenger door and asked McCray whether he was looking for a date. McCray replied that he thought she had him mixed up with someone else and instructed her to close the door. According to McCray, after Summers closed the door “all hell broke loose.” McCray heard a succession of at least five shots. He was hit above the eye. McCray recalled seeing a blue flash between two buildings on the passenger side of his car. Summers was shot and killed.
Marcia Redd, a longtime friend of Summers, watched the evening’s events from the front door of a house located in the 2500 block on Stadium Street. The house was owned by Robert Her-rell, a/k/a Cadillac Bob. Redd had been staying at the house for a couple of days. Summers came over to the house just before dark. When Summers first arrived, she and Redd were outside and it was raining. Redd observed Summers approach two cars. One was red and white. Redd heard the gunshots approximately 10 to 15 minutes after Summers had approached the red and white car. Redd had seen two ’African-American men in the same car around 4:00 or 4:30 p.m. She observed the man on the passenger side of the car talking with people who were standing in the yard at Cadillac Bob’s house. Later that evening, Redd noticed that Summers appeared to have spoken to someone on the passenger side of the red and white car just before her death. Redd could not discern the race or sex of the passenger Summers encountered in the car that night.
According to Redd, Summers came back to the porch and the two discussed Summers’ interaction with the passengers in the car. Redd reasoned that the passengers had been asking for a friend of Cadillac Bob’s named Andrew who had argued with the persons in the red and white car that afternoon. Summers agreed with Redd. Redd went into the house. When Redd returned, she wondered why Summers was taking so long to come inside because it was misting. Redd looked out the door and saw Summers talking with a man in a blue car. As she was watching Summers, she heard a “pop” sound. She stuck her head out the door. Redd observed a man standing at the side of the house with a long gun. She saw the man shoot at the car, fatally injuring Summers. Redd said that she must have made some noise because the man started shooting at the house. Redd fell to the floor and crawled back in the house as the man continued to fire. At trial, Redd testified that Bowen was the man she had seen shooting.
Michael Calhoun, age 12, was playing with a football outside with his friends Roger Britt and Cornelius Scales. Michael saw Bowen, who was known to Michael as “Bujo”, and another African-American male get out of a maroon and white car and walk through a field to Cadillac Bob’s house. Michael lived with his mother and two sisters in a house behind Cadillac Bob’s house. Michael testified that Bowen was carrying a gun. He saw Bowen, who was standing at the side of Cadillac Bob’s house, pull out a gun and start shooting at the blue car Summers was leaning against. Bowen ran into the yard and started shooting at the 'house. Michael was standing on the other side of the house. Michael said that Bowen went back to the car and drove off.
When Michael was interviewed by police officers, he did not identify the name of the shooter. He also told the police that two men had fired the shots. He claimed that Summers was standing against the house when she was shot.
Cornelius Scales, age 12, testified that the boys were on the side of the porch at Michael’s house when the shots began. According to Scales, the boys then hid under a car behind Michael’s house. Scales indicated that Michael was under the car when the shots were fired. Scales did not see anyone leaving a car or walking to Cadillac Bob’s house. On cross-examination, Scales indicated that he had forgotten what had occurred at the time of the shooting. His memory had been refreshed by a man in a blue suit who had come to visit his house the day before he testified at trial.
Roger Britt, age 9, testified that while he was with Cornelius and Michael, he saw two men get out of a car and walk through the alley towards Stadium Street. He stated that the boys decided to follow, and when they heard gunshots they ducked behind a car. According to Britt, the boys stayed behind the car until the shots stopped. They then went to the house of a woman who lived next door. Britt said Michael stated that Tyree, an 18-year-old friend of Michael’s, had been shot. Michael’s mother also testified that when her son returned home he said he thought his friend Tyree had been shot. ,
Lawrence Medlock, who was standing on the porch of a house on 20th Street, heard a series of gunshots and saw two African-American males running from the direction of the gunshots to a red and white Buick. He believed the gunshots came from Sta dium Street. Medlock admitted having had prior burglary, robbery, and theft convictions.
Officer Bobby Wiley found Summers lying with her back against the curb. She was not breathing. He found two piles of shell casings, one in front of Cadillac Bob’s house and one to the east of the house. Eighteen shell casings were fired from the same gun. The murder weapon was never found. Bullet fragments recovered from Summers’ body and from a wall in the house were compared. The firearms examiner could not conclusively determine that the two shots came from the same gun but he did identify them as coming from the same type of firearm.
Bowen did not testify at trial. In addition to the testimony of two of the boys, Scales and Britt, Bowen introduced evidence that he was with Vincent Curie at Curie’s home on Mascot Street from 8:45 p.m. until approximately 9:30 p.m. on January 21, 1992. Curie testified that it would take about 15 to 20 minutes to get from his residence to the area where the shooting occurred. Ron Waits, a private investigator who was Bowen’s surrebuttal witness, testified that he drove from Curie’s residence to the 2500 block of East 20th Street and took an odometer reading of 2.9 miles. He said the drive took approximately eight and a half minutes.
Bowen’s live-in girlfriend testified during the State’s rebuttal that she saw Bowen with a man named Brad in a red Cutlass with a white top for a couple of minutes at approximately 8:00 p.m. on the evening of the shooting. She next saw Bowen at home between 10:00 and 11:00 p.m.
The jury found Bowen guilty as charged. Additional relevant facts are set out in the opinion.
The Motion in Limine
Bowen filed a motion in limine which sought “an Order prohibiting the State from introducing evidence or argument of gang membership” at trial. The trial court used the following language in granting the motion: “Well, the Motion in Limine in regard to any evidence referring to gang membership is sustained. If they open the door, of course, the rule would be that you would be allowed to go into it; at this time it’s sustained.”
The State called Tito Labra, a deputy sheriff charged with serving warrants. The State proceeded to elicit an explanation from Labra that he was assigned to the sheriff’s gang task force. Counsel approached the bench and an off-the-record discussion occurred between counsel and the judge followed by an off-the-record discussion between the prosecutor and Labra. Questioning by the State resumed and Labra again stated that he had been assigned to the Special Community Action Team (SCAT), a police/ sheriff’s unit that focuses on drugs and gang activity. Defense counsel again objected to the relevance of the State’s line of questioning. Counsel were called to the bench. The prosecutor explained that he wanted to discuss Bowen’s arrest by a SCAT member on February 22, 1992. When the court further inquired concerning the testimony’s relevance, the prosecutor indicated that he possibly should withhold Labra’s testimony until rebuttal. The trial court directed the State to advise the witness that he was “not to go into anything about gangs under any circumstances.” Defense counsel requested that the officer’s prior testimony be stricken. The trial court denied the request, reasoning as follows: “If I ask him to strike it, it will bring it out even more.”
Bowen emphasizes that the State did not, as it had suggested, present Labra as a rebuttal witness. He believes that the State impermissibly intended to “smear” him with the gang reference.
Bowen explains that the trial court, in granting the motion in limine, determined that testimony concerning gang activities would be prejudicial. Consequently, he maintains that the trial court should have stricken Labra’s testimony from the record. He notes that the striking of testimony is a recognized method of preventing a defendant from being harmfully prejudiced, citing State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987). Bowen observes that in Massey, we held that the State’s violation of an order in limine constituted reversible error. Bowen contends that absent the striking of the testimony in question, he was subject to substantial injustice.
Massey discussed violations of orders in limine. Implicit in Massey is a two-part test for evaluating such violations. First, a determination concerning whether there was a violation of the order in limine must be made. Second, if a violation is found, then a determination is to be made as to whether the facts elicited in violation of the order substantially prejudiced the defendant. 242 Kan. at 265.
In evaluating the alleged violation of the order in limine, the trial court found Labra’s testimony did not violate the order— Labra did not link Bowen or Bowen’s alleged crime to a gang. The trial court provided a reasonable rationale for refusing to strike the testimony. The grant or denial of a motion to strike affecting the admission or exclusion of evidence subject to the exclusionary rules is a matter of trial court discretion. See State v. Friberg, 252 Kan. 141, Syl. ¶ 5, 843 P.2d 218 (1992). The standard of review on whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990). The trial court in the case at bar did not abuse its discretion. Furthermore, under the second part of the evaluation test, even if Labra’s testimony violated the order in limine, defendant did not suffer' substantial prejudice requiring a mistrial.
Bowen suggests that ill intent is shown by the State’s inquiry of Curie, which established that Bowen was from California and that he had attempted to get into his “situation” upon his arrival in Wichita. The State reasons that the fact that Bowen was from California in no way established that he was a gang member. We agree.
Bowen contends that the State’s bad faith also is demonstrated by a newspaper article in the Wichita Eagle in which police officers are quoted as calling Bowen a Los Angeles gang “banger” or hit man. According to Bowen, this information reached the press without regard for the order in limine. He reasons that the State’s misconduct regarding the order violated his right to due process and a fair trial. The State claims that an order in limine does not prohibit the press from publishing information it acquires concerning a criminal trial. We agree. We find nothing in the record to substantiate any claim of prosecutorial misconduct in connection with the newspaper article.
Refusal to Grant a Mistrial
The article which appeared in the Wichita Eagle on the second day of trial carried the headline: “Witness fingers gunman/Woman defies threats to testify in friend's slaying.” The first sentence stated: “The murder trial of a 20-year-old man who police say is a Los Angeles gang “banger,’ or hit man, opened Tuesday in Sedgwick County District Court with nervous testimony from an eyewitness who claimed she had been threatened to prevent her from showing up in court.”
Bowen accents the fact that there was no evidence presented at trial concerning any such threats against Marcia Redd, the witness referred to in the article. The trial court disallowed testimony of such rumors because they were hearsay.
When the trial resumed the morning the article was published, defense counsel brought it to the trial judge’s attention. Counsel requested that the court inquire of the jurors as to whether they had seen or read the article. Counsel also stated that she believed that a mistrial would be in order if any of the jurors had read or seen the article. The trial court agreed to conduct an inquiry.
“THE COURT: Members of the jury, at this time I want to make an inquiry of you to each of you answer — I want you to answer the question. There was an article in the paper about this particular case. Now, did any of you read that article or see that article? If you did please raise your hand.
“MR. LANGE: I saw the article.
“THE COURT: You saw the article?
“MR. LANGE: I realized what it was about and I didn’t read it.
“THE COURT: And, Mr. Patrick Robinson, you also saw it?
“MR. ROBINSON: Now, I saw the headline and saw a name and then set it aside.
“THE COURT: Did anyone else see the article or read any of it?
“I see no affirmative answers.
“THE COURT: On the basis of merely seeing the headline of the article, I do not see that that would in any way . . . influence the jury. You can’t put blinders on the jurors, and, therefore, I will go ahead with the trial. Is the State ready to proceed?”
The motion for a mistrial was denied. Our standard of review of a trial court’s refusal to grant a mistrial under K.S.A. 22-3423 is abuse of discretion. State v. Pioletti, 246 Kan. 49, 65, 785 P.2d 963 (1990).
Bowen believes that trial court did not properly characterize the jurors’ statements concerning what they had seen. He finds it difficult to understand how one juror could realize what the article was about without reading it. Bowen stresses that the trial court did not determine at what point the juror realized the article dealt with the trial. Additionally, Bowen notes that the other juror said he read beyond the headline, which indicates to Bowen that the juror passed the gang “banger” language in the first sentence. Bowen also contends that the trial court’s inquiry was inadequate because the judge failed to determine whether the offending material would prejudice the two jurors.
Bowen notes that in State v. Lumbrera, 252 Kan. 54, Syl. ¶ 6, 845 P.2d 609 (1992), we reasoned that appellate courts have a duty to make an independent evaluation of the circumstances in determining whether a trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influence. The issue in Lumbrera concerned pretrial publicity and voir dire. Bowen discusses State v. Yurk, 230 Kan. 516, 638 P.2d 921 (1982). In Yurk, one juror had read an article that described the defendant’s prior convictions. The Yurk juror was asked whether a newspaper article would affect his ability to be fair and impartial. The juror stated initially that his ability to be fair would be affected but under further questioning by the judge stated he could render a fair decision. The juror said, concerning the newspaper article, that “the main thing that bothered me were the other charges that had been filed against the man and the convictions.” 230 Kan. at 520. We reversed. Bowen reasons that Yurk is analogous to the case at bar.
The trial court in Bowen’s case informed the jurors that they “should not read any material that may be in any of the newspapers or listen to any radio announcement or view items on the radio or television concerning this case.” The admonition was given at the end of trial the day before the article was published.
The State notes that although defense counsel did raise the issue in a motion for a new trial, no juror affidavits were attached suggesting the extent of knowledge of the article’s content or that they were influenced by the news story. The jurors were not produced at hearing on the motion for a new trial. According to the State, defense counsel at the hearing on the motion for a new trial said that she had interviewed one of the two jurors following the trial and found that the juror had read the article after the trial. The State contends that there is nothing in the record to show the juror was influenced at trial by his knowledge of the article.
We have held that “[a] motion to inquire during trial is not a proper method to determine if members of a jury are aware of prejudicial articles published or aired during the trial.” State v. Zimmerman, 251 Kan. 54, Syl. ¶ 10, 833 P.2d 925 (1992). The trial court’s polling of the jury during trial generally is rejected because of the potential for placing prejudicial material before the jury which could form a basis for a mistrial. State v. Stewart, 219 Kan. 523, 530, 548 P.2d 787 (1976). The trial court, in the case at bar, did essentially poll the jury to determine who had read the article.
The manner in which the poll was conducted by the trial judge was not prejudicial. The judge inquired as to whether any of the jurors had seen or read the article. If he had continued in the fashion desired by Bowen and asked the jurors whether they were prejudiced by the article, prejudicial error might have occurred. Such a prolonged inquiry could have caused jurors to focus on the article and wonder whether they should, in fact, have had their opinions altered by its content. In Yurk, we observed:
“No objection to the procedure followed by the trial court has been raised by either party although the polling of the jury during trial was contrary to our holdings in State v. Smith, 215 Kan. 34, 523 P.2d 691 (1974), and State v. Potts, 205 Kan. 42, 468 P.2d 74 (1970). It is quite possible that the actual polling of the jury may have aroused the curiosity of the other jurors and created further prejudice to the defendant.” 230 Kan. at 523.
See State v. Richard, 252 Kan. 872, 850 P.2d 844 (1993).
The fact that a juror has read a newspaper article does not automatically constitute grounds for a mistrial. Roy v. State, 213 Kan. 30, Syl. ¶ 2, 514 P.2d 832 (1973). The two jurors in the instant case who saw the single article in question did not indicate that they had read it in its entirety. The content of the offending headlines is not of such a nature that prejudice should be presumed. Bowen had the burden to demonstrate that he was prejudiced. Pioletti, 246 Kan. at 65. We find no abuse of discretion in the trial court’s refusal to grant a mistrial.
Limitation of Cross-Examination
The following exchange occurred between defense counsel and Marcia Redd, an eyewitness, near the end of cross-examination:
[DEFENSE COUNSEL]: “Well, isn’t it a fact that you were granted probation on April 28, 1992?
[MARCIA REDD]: “It doesn’t have anything to do with it.
“[PROSECUTOR]: Your Honor, I will object to that. May I approach the bench?
“THE COURT: Yes, you may.
“(An off-the-record discussion was had between the Court and Counsel, after which the following proceedings were had:)
“THE COURT: Members of the juiy, the question and the answer is stricken from the record.”
The following occurred on redirect:
[PROSECUTOR]: “Q. I think Ms. Roberts’ [defense counsel’s] last question to you that wasn’t stricken was were you given anything in exchange for your testimony?
[WITNESS, MARCIA REDD]: “A. Sure wasn’t.”
Bowen reasons that the Confrontation Clause of the Sixth Amendment affords the accused the right of cross-examination. He asserts that the exposure of a witness’ motivation in testifying is a proper and important function of cross-examination, citing State v. Humphrey, 252 Kan. 6, 17, 845 P.2d 592 (1992). We agree. We determined in Humphrey that it was reversible error for the trial court to prevent defense counsel from questioning a prosecution witness concerning her “relationship with the police.” 252 Kan. at 17.
According to Bowen, Redd’s status of being on probation created a relationship with the State. He asserts that a person on probation would be loath to do anything that could be displeasing to the authorities and reasons that Redd may have been eager to please the State. Redd received probation in connection with an unrelated possession of cocaine charge. Bowen contends that the inquiry concerning Redd’s probationary status should have been permitted. He claims he was denied his right to confront and cross-examine the witness.
The State argues there was no abuse of discretion because Redd did not enter into any agreement with the State. The State emphasizes the fact that Redd testified on cross-examination and on redirect that she did not receive anything in exchange for her testimony. According to the State, she was granted probation by the court, not the State, following her conviction for possession of cocaine. Bowen failed to make any proffer indicating that one of the conditions of Redd’s probation was that she would testify for the State in the case at bar. Furthermore, there was no indication that Redd’s probation was jeopardized because she was a witness in the instant case. Redd was never a suspect in connection with the murder.
In Humphrey, 252 Kan. 6, the witness in question was solicited by Humphrey to engage in criminal conduct. The possibility that the police could have influenced the witness by initiating criminal charges against her if she failed to cooperate was present. Consequently, the witness’ relationship with the police was a ripe area for cross-examination. By contrast, in the case at bar, there was no such relationship to explore. Revocation of Redd’s probation could be effected only upon a showing that she had violated the conditions of her probation.
In Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), the prosecution was granted a protective order to prevent any reference, in the course of cross-examination, to the juvenile record of a crucial prosecution witness, Richard Green. In opposing the protective order, Davis’ counsel made it clear that he would not introduce Green’s juvenile adjudication as a general impeachment of his character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying Davis, he was on probation for burglary. Green made a photographic identification of Davis as one of the men he had encountered the day before and, two days later, picked Davis out of a lineup of seven African-American males. Davis sought to prove that Green acted out of fear or concern of possible jeopardy to his probation. Davis reasoned that Green may have made a hasty and faulty identification to shift suspicion away from himself as the one who committed the burglary. 415 U.S. at 310-11. The Supreme Court held that the trial court should not have granted the motion for a protective order and reversed the convictions and remanded the case.
Davis endorses a defendant’s right to cross-examine a witness to expose bias and prejudice. However, the Court’s emphasis on the critical nature of Green’s testimony suggests that if testimony is not necessary for conviction, its restriction will not constitute a denial of effective cross-examination.
In Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), a prosecution witness had received a dismissal of a public drunkenness charge after he agreed to speak with the prosecution about the murder allegedly committed by Van Arsdall. At trial, Van Arsdall was denied the right to cross-examine the witness concerning the dismissal of the charge. 475 U.S. at 676. Van Arsdall asserted that Davis foreclosed the application of a harmless error analysis to the Confrontation Clause violation. The Van Arsdall Court interpreted Davis as not establishing a categorical exception to the harmless error rule. 475 U.S. at 682-83.
The cross-examination should have been permitted in the case at bar. The error, however, was harmless. Our harmless error standard of review requires us to declare, beyond a reasonable doubt, that the error had little if any likelihood of changing the result of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950 (1990). See Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d. 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967). Redd’s identification of Bowen was corroborated by a second eyewitness, Michael Calhoun, and by physical evidence. Kent McCray observed someone shooting from the area described by Redd. Shell casings were found in the area from which Redd testified shots were fired. Lawrence Medlock saw two men run from the sound of the gunshots and get into a red and white car. Redd saw a red and white car shortly before the shooting. Redd’s testimony concerning what she had observed was explored on cross-examination, and the jury was instructed on eyewitness identification. Redd was asked on cross-examination whether she was given anything in exchange for her testimony.
An Instruction on Involuntary Manslaughter
Bowen requested an instruction on involuntary manslaughter. The written instruction he proposed advanced the theory that he unintentionally killed Summers while committing the crime of criminal damage to property, McCray’s car, in a wanton manner. At the commencement of the instructions conference, the trial court stated it was not going to give any of the defendant’s proposed instructions. Bowen believes that this error entitles him to a new trial on the homicide count.
The trial court indicated it would give its proposed instruction on involuntary manslaughter premised on the theory that the unintentional killing occurred while Bowen unlawfully discharged a firearm in a wanton manner (Instruction No. 15).
Defense counsel neither objected as the instruction was being read to the jury nor noted error following closing arguments, despite the fact an error in another instruction was noted by the judge and corrected at that point. After the jury was excused to commence its deliberations, the following record was made:
“[PROSECUTOR]: The last thing we have not put on the record is Instruction No. 15. We checked over the language now and as it reads now concerning unlawful discharge of a firearm.
“[PROSECUTOR]: No objection by the State.
“[DEFENSE COUNSEL]: No objection.
“[PROSECUTOR]: And No. 16 which is now the elements of unlawful discharge of a firearm.
“[PROSECUTOR]: No objection by the State.
“[DEFENSE COUNSEL]: No objection by the defense.”
We find no error in the instruction given.
Sufficiency of the Evidence
Bowen contends that the testimony of two eyewitnesses who allegedly identified him as the gunman was so incredible that the conviction should not be allowed to stand.
The standard of review when sufficiency of the evidence is questioned on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
The jury exercises the prerogative to determine the credibility of the witnesses, the weight to be given the evidence, and the reasonable inferences which may be drawn from the evidence. State v. Pondexter, 234 Kan. 208, 215, 671 P.2d 539 (1983). There was sufficient evidence from which the jury could conclude that Bowen was the person who fired the shots which killed Summers and injured McCray.
Affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action in the nature of quo warranto, declaratory judgment and injunction, brought by the city of Lenexa, attacking the annexation of certain lands in Johnson County by the defendant, city of Olathe. The city of Olathe filed a motion to dismiss the action on the ground that the city of Lenexa lacked standing to maintain the action. The district court sustained the motion to dismiss, holding that an action challenging the annexation of land by a city can only be brought by the state through the attorney general or the district attorney or in certain instances by an aggrieved landowner. The city of Lenexa has appealed from that ruling.
In rendering judgment, the Honorable Herbert W. Walton filed a well-written memorandum decision which states succinctly (1) the issues presented in the case; (2) the undisputed facts as shown by the pleadings and exhibits attached thereto; (3) the rules of law applicable to the facts shown; and (4) the reasons for the decision. Because all issues are thoroughly analyzed and discussed in Judge Walton’s memorandum decision, we quote those portions which set forth the considerations upon which his decision was based:
“Issues
“The primary issue to be determined is whether the City of Lenexa has standing to challenge the annexation proceedings of the City of Olathe that were undertaken pursuant to K.S.A. 12-520 and 12-520a. Lenexa sets forth five theories upon which standing may be maintained: (1) a quo warranto action; (2) authorization under home rule powers; (3) an administrative appeal under K.S.A. 60-2101(d); (4) the inherent power to bring an injunctive or declaratory action to protect a municipal interest; and (5) a theory of estoppel based on contract. Olathe counters pointing to the legislative nature of an annexation proceeding and the long held rule of this state limiting the parties who may challenge such a proceeding. For the reasons more fully set out below, this Court agrees with the position advanced by the defendant, City of Olathe, and grants its motion to dismiss.
“Factual considerations
“This motion must be decided on the facts alleged in the plaintiff’s petition, taken in the light most favorable to the plaintiff, and with any factual doubts resolved in the plaintiff’s favor. ‘Dismissal is justified only if the allegations of the petition clearly demonstrated that the plaintiff does not have a claim.’ Woolums v. Simonsen, 214 Kan. 722, 726, 522 P.2d 1321 (1974). For the purposes of deciding the legal questions raised by Olathe’s challenge to Lenexa’s standing to bring this suit, however, no determinative facts are in dispute.
“Statement of the Case
“This action concerns Olathe’s annexation of three parcels of land located to the north of Olathe proper and to the west of Lenexa. The three parcels in question are but a small area of an even bigger tract of land coveted by both parties in this rapidly urbanizing area of Johnson County. In March of this year Lenexa disclosed a specific projected plan of annexation for a 20 square mile area including the properties in question. Subsequent to the publication of the Lenexa plan of annexation, the owners of the parcels in question presented the City of Olathe with petitions for annexation which were accepted and the challenged annexation accomplished under K.S.A. 12-520(g).
“Conclusions of Law
“The City of Lenexa has raised numerous attacks on the procedures followed in the annexation, the legal authority of the defendant to annex the land and the advisability of the annexation itself. In the final analysis, however, the question before this court is whether the legislature intended to allow municipalities to challenge annexations by other municipalities.
“I
“The annexation of land by municipal corporations has traditionally been regarded as a legislative function. As such, ‘[t]he wisdom, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. The basic function and duty of the courts is to determine whether a city has statutory authority and whether it has acted thereunder in passing an annexation ordinance.’ State, ex rel., v. City of Overland Park, 192 Kan. 654, Syllabus 3, 391 P.2d 128 (1964). Also see Clarke v. City of Wichita, 218 Kan. 334, 543 P.2d 973 (1975). In addition, an attack on the annexation of land by a municipality has been construed as a challenge to the legality of the organization or reorganization of a city in much the same manner as an attack on the legality of the corporate existence of the city itself. Babcock v. City of Kansas City, 197 Kan. 610, 419 P.2d 882 (1966). Because of this view the law has always limited the right to bring an action challenging an annexation ordinance. Prior to the 1974 statutory amendments to the annexation laws, this right rested solely with the state acting through a county attorney, district attorney or the attorney general. Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 520 P.2d 1230 (1974); State, ex rel., v. Babcock, supra.
“The Babcock case typifies the law in Kansas regarding standing to challenge annexations prior to the 1974 amendments. In Babcock an individual landowner brought a quo warranto action challenging the annexation by the City of Kansas City of several tracts of land including his own. The court held that it was the well established rule that private individuals could not maintain such an action and that the right to challenge an annexation vested solely with the state. The court went on to observe that it was a rule of universal application that had been
‘examined and re-examined with great care and has always been reaffirmed; it is said to be founded upon public policy and has been consistently applied regardless of whether the procedure was a direct attack upon annexation such as here presented. (Smith v. City of Emporia, supra [168 Kan. 187, 211 P.2d 101 (1949)]; State, ex rel., v. City of Kansas City, 186 Kan. 190, 350 P.2d 37) or an indirect or collateral attack upon annexation such as in Topeka v. Dwyer, supra [70 Kan. 244, 78 Pac. 1162 (1904)]. The rule has been held applicable to all types of actions attacking the legality of corporate existence of cities and districts regardless of whether the attacking procedure was injunction (Chaves v. Atchison, supra, [77 Kan. 176, 94 Pac. 624 (1908)]), quo warranto (State, ex rel., v. City of Kansas City, supra), declaratory judgment (Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P.2d 35), appeals from an order of the Board of County Commissioners (Lampe v. City of Leawood, 170 Kan. 251, 225 P.2d 73), habeas corpus (In re Short, Petitioner, 47 Kan. 250, 27 Pac. 993), or criminal defense (City of Topeka v. Dwyer, supra).’
“The application of this rule to cities was also recognized in State, ex rel., v. City of Overland Park, supra, where, in dicta, the court observed that ‘[o]ne city cannot prosecute an action attacking the validity of an annexation ordinance of another city.’ See also City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P.2d 403 (1974).
“In 1974 the Kansas Legislature adopted amendments to the state’s annexation procedures that modified the standing rules for challenging the validity of an annexation. In essence, the amendments changed the law to allow individual landowners standing to challenge annexation and also repealed K.S.A. 12-502(c)(1964) which related to quo warranto actions maintained by the state. The new language added to K.S.A. 12-520 in effect overruled the Babcock decision as to individual standing. The provision provides:
‘Any owner of land annexed by a city under the authority of this section may within thirty (30) days next following the publication of the ordinance annexing such land maintain an action in the district court of the county in which such land is located challenging the authority of the city to annex such lands and the regularity of the proceedings had in connection therewith.’ K.S.A. 12-520.
“The plaintiff contends that the- amendment completely alters the prior law regarding challenges to annexation. The defendant, of course, argues the amendment was intended to remedy the result of Babcock and provide the aggrieved landowner an opportunity to oppose an unlawful annexation. The answer to this lies in a determination of the legislative intent in amending the annexation statutes. In . making such a determination, this court is not limited to the mere consideration of the language employed, but may also look to the historical background of the enactment, the circumstances accompanying its passage, the purposes to be accomplished, and the effect the statute may have under the various suggested constructions. Southeast Kansas Landowners Ass’n. v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978); State v. Luginbill, 223 Kan. 15, Syl. 2, 574 P.2d 140 (1977); Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, 172, 596 P.2d 103 (1979).
“In the present case, the statute in question was considered by the Special Committee on Local Government, an interim study committee for the 1974 Legislature. A report that accompanied the committee’s proposed bill, effectively sets out the thinking of the bill’s architects. The report noted that individual property owners did not have the right to challenge annexations by cities and that ‘[t]he committee is of the opinion that the rights of individual property holders should be enhanced in order to bring about more of a balance between public and private interests.’ Reports of Special Committees to the 1974 Kansas Legislature, Proposal No. 92 - Annexation p. 92-4 (1973). (emphasis added.) The committee went on to conclude that their proposal would provide the individual property owner access to the courts that had previously been denied in annexation challenges. The committee’s proposal, HB 1621, was adopted without change by the legislature.
“Also helpful in determining the legislature’s intent in adopting the amendments to the annexation laws are the minutes from legislative hearings held on the subject. A number of public officials and citizens testified before the Special Committee while it was formulating its proposal. The clear emphasis by a large number of the participants was the inability of the affected landowner to challenge the annexation. Preliminary Minutes of the Special Committee on Local Government (Interim Committee) for the 1974 Session, June 9 & 10, 1973.
“It is this court’s conclusion that the language of the statute allowing ‘Any owner of land annexed’ to bring suit challenging the annexation does not in and of itself extend standing to a neighboring municipality. The limited scope of that portion of the 1974 amendments relating to standing was recognized in Clarke v. City of Wichita, 218 Kan. 334, 543 P.2d 973 (1975), where the court discussed the change in legislative policy as follows:
‘The 1974 legislative amendment allowing any owner of land annexed by the city to “challenge the authority of the city to annex such lands and the regularity of the proceedings had in connection therewith” changes our prior law only to the extent that it is no longer necessary that an action be brought in the name of the state.’ 218 Kan. at 349.
“The plaintiff further contends that the repeal of K.S.A. 12-502c in 1974 removed any statutory impediment preventing one municipality from challenging an annexation by another. But the repealed version of 12-502c was not an enabling statute permitting the state to challenge annexations. Instead, it was merely a statute of limitations imposed on quo warranto actions by the state. This argument gains added force when it is realized that 12-502c was first added to the statute books in 1957 while quo warranto actions by the state prior to 1957 are legion. See e.g., State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P.2d 901 (1953); State, ex rel., v. City of Topeka, 173 Kan. 387, 246 P.2d 250 (1952). In other words, 12-502c imposed a limitation on the right of the state to bring a quo warranto action against a municipality but its presence did not otherwise affect the inherent and sole right of the state to bring such actions. Likewise, its repeal should be construed as removing only the limitations that it had originally imposed, the statute of liniitations on quo warranto actions.
“Finally, it should be recognized that the 1974 legislature studied the annexation problem and must be assumed to have known the law of Kansas. In the preparation of the committee report and the bill that was subsequently adopted, the members of the committee and their staff spoke only of the injustice of prohibiting an affected landowner in the annexed area from challenging an annexation. No mention was made of extending the right to challenge annexation to neighboring municipalities. Hence, this court can only conclude that the legislature did not intend to enlarge the right of standing beyond that granted by the express language of the amendment. Clearly if the legislature had intended to so enlarge the standing provisions, it could have done so by express language.
“II
“The plaintiff next asserts that the Kansas home rule amendment gives the power to a municipality to challenge the annexation procedure of another municipality. For the purposes of this dispute both parties have conceded that the state has exclusive jurisdiction to establish annexation procedures. But the City of Lenexa seeks to draw a line between the state’s exclusive jurisdiction in establishing the procedures to be followed and the right to challenge an annexation as not following those procedures. They point to the general grant of power contained in Art. 12 § 5(b) and the liberal construction clause in favor of the cities found in Art. 12 § 5(d). Thus, they argue that they need not base their standing on a particular statutory provision passed by the legislature, but instead have standing absent an express statutory provision denying standing in annexation matters.
“It must be questioned, however, whether the home rule amendment was intended to allow one city to challenge the actions of another city when the amendment itself denies cities the power to annex other than as provided by statute. The general rule is that legislative intent to reserve to the state exclusive jurisdiction must be clearly manifested by statute before it can be held that the state has withdrawn from the cities the power to take action in a certain area. Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976); City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). Here, the constitutional amendment granting home rule authority to cities expressly re serves annexation matters to the state and the legislature has expressly provided by statute who can challenge an annexation proceeding. In addition, the authority over annexation reserved by Art. 12 § 5 must be read as effectively recognizing and preserving the inherent power of the state in this area. . . .
“Such a result is not surprising when a municipality’s home rule powers are considered in conjunction with the intent of the home rule amendment. Home rule is intended to give cities flexibility in their local affairs and government. Home rule allows a city to respond to a local problem with a local solution without the necessity of seeking authorization from the legislature unless a specific statute of general application prevents action. See City of Junction City v. Lee, supra; Martin, Home Rule for Kansas Cities, 10 Kan. L. Rev. 501 (1962); Crumment, City Home Rule in Kansas, 9 Washburn L.J. 1 (1969). But home rule cannot be construed as authority for one municipality to determine its relationships with other municipalities through the use of court actions challenging the annexation or corporate existence of the others. Questions concerning the relationships between cities call for statewide action. Art. 12 § 5 and K.S.A. 12-520 provide the answer for annexation challenges. Both the state and aggrieved landowners have standing and one city may not take unilateral action to challenge an annexation by another.
“Ill
“Finally, Lenexa has urged that its standing to prosecute this suit may be based on an administrative appeal under K.S.A. 60-2101(d), its inherent power to bring injunctive or declaratory actions to protect its interests and a theory of estoppel based on contract. While each of these theories may have some merit to support standing in a suit other than that challenging an annexation proceeding, from the discussion above it is clear that the law of Kansas narrowly restricts standing in annexation challenges and that the City of Lenexa does not qualify. The cases cited in Rabcock v. City of Kansas City, supra, effectively illustrate this point.”
As correctly noted by the trial court in the memorandum decision, the Kansas Constitution, under the Home Rule Amendment, Article 12, Section 5, vests in the state legislature full power and authority over the subject matter of the alteration of city boundaries by annexation. The most recent legislation in this area was adopted in 1974 (K.S.A. 12-519 et seq.). There the legislature adopted a statutory scheme for the annexation of land by cities, which the courts of this state are bound to recognize and follow. As we analyze the 1974 amendments, the legislature has divided city annexations into two distinct categories: (1) annexations of land which adjoins the city or which is owned by or held in trust for the city, and (2) annexations of land not adjoining the city. In the present case, the undisputed facts show clearly that we are dealing with an annexation of land which adjoins the city.
K.S.A. 12-519(d) defines the word “adjoins” as used in the annexation statutes in the following manner:
“(d) ‘Adjoins’ means to lie upon or touch (1) the city boundary line; or (2) a highway, railway or watercourse which lies upon the city boundary line and separates such city and the land sought to be annexed by only the width of such highway, railway or watercourse.”
The tracts of land involved in the present case adjoined the city within the statutory definition at the time the annexations occurred. The sections pertaining to the annexation of land which adjoins the city are K.S.A. 12-520, 12-520a, and 12-520b which provide in part as follows:
12-520. “Except as otherwise hereinafter provided, the governing body of any city may by ordinance annex land to such city if any one or more of the following conditions exist;
“(a) The land is platted, and some part of such land adjoins the city.
“(b) The land is owned by and held in trust for the city or any agency thereof.
“(c) The land adjoins the city and is owned by or held in trust for any governmental unit other than another city.
“(d) The land lies within or mainly within the city and has a common perimeter with the city boundary line of more than fifty percent (50%).
“(c) The land if annexed will make the city boundary line straight or harmonious and some part thereof adjoins the city, except no land in excess of twenty (20) acres shall be annexed for this purpose.
“(f) The tract is so situated that two-thirds (%) of any boundary line adjoins the city, except no tract in excess of twenty (20) acres shall be annexed under this condition.
“(g) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner.
“Whenever any city shall annex any land under the authority of subsection (b) of this section which does not adjoin the city, tracts of land adjoining the land so annexed shall not be deemed to be adjoining the city for the purpose of annexation under the authority of this section until such adjoining land or the land so annexed adjoins the remainder of the city by reason of the annexation of the intervening territory.
“The governing body of any city may by one ordinance annex one or more separate tracts or lands each of which conforms to any one or more of the foregoing conditions. . . .
“Any owner of land annexed by a city under the authority of this section may within thirty (30) days next following the publication of the ordinance annexing such land maintain an action in the district court of the county in which such land is located challenging the authority of the city to annex such lands and the regularity of the proceedings had in connection therewith.” (Emphasis supplied.)
12-520a. “(a) The governing body of any city desiring to annex land under the authority of K.S.A. 12-520 shall first adopt a resolution stating that the city is considering the annexation of such land. Such resolution shall;
“(1) Give notice that a public hearing will be held to consider the annexation of such land and fix the date, hour and place of such public hearing.
“(2) Describe the boundaries of the land proposed to be annexed; and
“(3) State that the plan of the city for the extension of services to the area proposed to be annexed, which is required under the provisions of K.S.A. 12-520b, is available for inspection during regular office hours in the office of the city clerk.
“(b) The date fixed for such public hearing shall be not less than sixty (60) nor more than seventy (70) days following the date of the adoption of the resolution fixing the date of such hearing.
“(c) A copy of the resolution providing for the public hearing shall be mailed by certified mail to each owner of land proposed to be annexed not more than ten (10) days following the date of the adoption of such resolution. Such resolution shall be published in the official newspaper of such city not less than one week and not more than two weeks preceding the date fixed for such public hearing. A sketch clearly delineating the area in such detail as may be necessary to advise the reader of the particular land proposed to be annexed shall be published with such resolution and a copy thereof mailed to the owner of the property with such resolution.
“(d) At the public hearing, a representative of the city shall present the city’s proposal for annexation, including the plan of the city for the extension of services to the area proposed to be annexed. Following such explanation, all interested persons shall be given an opportunity to be heard. The governing body may for good cause shown recess such hearing to a time and date certain, which shall be fixed in the presence of persons in attendance at the hearing.
“(e) No resolution, notice and public hearing required under the provisions of this section shall be required as a prerequisite to the annexation of land owned by or held in trust for the city or any agency thereof or land all of the owners of which petition for or consent thereto in writing.” (Emphasis supplied.)
12-520b. “The governing body of any city proposing to annex land under the provisions of K.S.A. 12-520 shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the adoption of the resolution provided for in K.S.A. 12-520a, prepare a report setting forth such plans. . . .
“The preparation of a plan for the extension of services as hereinbefore required shall not be required for or as a prerequisite to the annexation of land all of the owners of which petition for or consent to such annexation in writing. ” (Emphasis supplied.)
These statutes make it clear that the legislature has determined that, where a dispute arises as to the annexation of land which adjoins the city, the only interested parties to the controversy are the city and the owner of the land which has been proposed for annexation. It should be noted that K.S.A. 12-520, in the last paragraph, provides that an owner of land annexed by a city under K.S.A. 12-520 may maintain an action in the district court challenging the authority of the city to annex his property and the regularity of the proceedings had in connection therewith. That statute does not recognize any right of action by another incorporated city in the county to dispute the proposed annexation. It should also be noted that under 12-520a(e), where the land adjoins the city and a written consent is filed with the city by the owner, no resolution, notice, or public hearing is required. Likewise, the preparation of a plan for the extension of services is not required where the land adjoins the city and the landowner consents to the annexation (K.S.A. 12-520b[h]). We have concluded from these statutory provisions that other incorporated cities in the county are not recognized as interested parties in cases of annexation of land which adjoins a city and the owner of the property consents to the annexation.
The subject matter of annexation of land not adjoining the city is covered by K.S.A. 12-520c. That section provides as follows:
“12-520c. Annexation of land not adjoining city, when; resolution to county commissioners; findings by board spread upon journal; effect; appeals to district court.
“(a) The governing body of any city may by ordinance annex land not adjoining the city if the following conditions exist:
“(1) The land is located within the same county as such city;
“(2) The owner or owners of the land petition for or consent in writing to the annexation of such land; and
“(3) The board of county commissioners of the county find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county.
“(b) No land adjoining any land annexed by any city under the provisions of this section shall be deemed to be adjoining the city for the purpose of annexation under any other act or section of this act until such adjoining land or the land annexed under this section shall adjoin the remainder of the city by reason of the annexation of the intervening territory.
“(c) Whenever the governing body of any city deems it advisable to annex land under the provisions of this section such governing body shall by resolution request the board of county commissioners of the county to make a finding as required under subsection (a)(3) of this section. . . .
“Any owner or city aggrieved by the decision of the board of county commissioners may appeal from the decision of such board to the district court of the same county in the manner and method set forth in K.S.A. 19-223. Any city so appealing shall not be required to execute the bond prescribed therein.” (Emphasis supplied.)
It is important to note that in order for the governing body of a city to annex land not adjoining the city, the owner of the land considered for annexation must consent to such annexation in writing and, in addition, the board of county commissioners of the county must find and determine “that the annexation of such land will not hinder or prevent the proper growth and develop ment of the area or that of any other incorporated city located within such county.” Subsection (c) of K.S.A. 12-520c provides that any owner or city aggrieved by the decision of the board of county commissioners may appeal from the decision of the board to the district court. We have concluded from this statutory language that it is the intent of the legislature that in cases of a proposed annexation of land not adjoining the city, the rights of another incorporated city in the county must be considered and it has an interest which entitles it to challenge such an annexation in the district court.
As we have emphasized above, there is involved in the case presently before us an annexation of land which adjoins the city and to which annexation the owner of the property has consented. In the present case, the city of Olathe annexed the three tracts by means of three ordinances enacted and proposed on successive days. The first tract annexed directly adjoins the city of Olathe on that city’s northern boundary. The ordinance annexing the first tract of land was enacted on June 4, 1979, and was published on June 5, 1979. The annexation became effective on publication under K.S.A. 12-523. The second tract of land was annexed by ordinance on June 5, 1979, which ordinance was published on June 6, 1979. The third tract of land was annexed by city ordinance on June 6, 1979, and the ordinance was published on June 9, 1979. Under these undisputed facts, it appears that in each instance the land adjoined the city at the time the annexation occurred.
On appeal, the city of Lenexa contends that it has standing to bring the action because the three tracts annexed were located within an area where the city had previously exercised exterritorial jurisdiction by developing a comprehensive plan for the area and by reviewing proposed subdivision regulations. We fully understand the concern of the city of Lenexa as to the annexation in this case. We are, however, bound by the statutory provisions, noting in particular K.S.A. 12-524 which prohibits the annexation by one city of any part or the whole of any other incorporated city. In its wisdom, the legislature could have provided in 12-524 a remedy where one city proposes to annex land included within an area where another city has already exercised exterritorial police power. Unfortunately for the city of Lenexa, the legislature did not provide such protection to cities where that situation arises. Any statutory amendments to cover that situation must be addressed by the legislature and not by the courts. For the reasons set forth above, we have concluded that the district court did not err in sustaining the defendant’s motion to dismiss the appeal on the ground that the city of Lenexa lacked standing to bring the action.
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The opinion of the court was delivered by
Fromme, J.:
Curtis Leon Underwood appeals from a jury conviction of felony murder (K.S.A. 21-3401). The underlying felony which is being used to classify the homicide as a felony murder is unlawful possession of a firearm as defined in K.S.A. 21-4204(l)(b). This forms the basis for appeal No. 51,401 in this court.
In an attempt to erase the underlying or collateral felony the defendant filed two motions in a 1974 case in which he had been convicted of felony theft. He filed one motion to annul this conviction and a second motion to withdraw his plea of nolo contendere. Both motions were overruled. Defendant then perfected an appeal from the order denying these motions. This forms the basis for appeal No. 51,420 in this court.
The two appeals were consolidated and are now before this court for decision. We will consider the appeal in the 1974 case first. On August 2, 1974, when appellant Underwood was eighteen years old, he assisted Gus Hankins, Jr. in stealing a bicycle from the Wichita State University campus. Appellant testified that he was with Hankins and observed Hankins cut a security chain with bolt cutters. Hankins gave him the bolt cutters and rode off on the bicycle. Appellant put the bolt cutters in his pocket. An eyewitness, who later identified both appellant and Hankins, notified the police. The appellant and Hankins were arrested and charged with felony theft. Hankins was arrested in possession of the bicycle. Appellant had the bolt cutters in his pocket when he was arrested. The appellant entered a plea of nolo contendere to the charge of felony theft and was sentenced for a period of from one to ten years. He was placed on probation for a two year period. His probation was terminated when fully served in September, 1976.
The events leading to appellant’s conviction on the felony murder charge occurred on October 28,1978. Appellant and some friends were attending a card party at 2718 East 10th Street, Wichita, Kansas. While appellant was watching the game, one of the players, Earl Brewer, accused him of stealing a bag of marijuana. They exchanged angry words and eventually began fighting in the yard. During this altercation the bag of marijuana dropped to the ground. The fight stopped. A friend of Brewer came from the house carrying a shotgun and handed it to Brewer. Brewer brandished the shotgun. The appellant and his friends entered their cars to leave. From the car appellant announced that he would return.
The appellant and his friends went to appellant’s home where he changed his clothes. The appellant changed from dress clothes and platform shoes to jeans and tennis shoes. Appellant also obtained a .32 caliber pistol. The pistol had recently been purchased by appellant with funds from his live-in girl friend, ostensibly, for her protection. Appellant gave the gun to his half-brother, Phil Marzett, for safekeeping before returning to the scene of the fight.
The appellant and his friends returned to the 10th Street address and Brewer was summoned to come outside the house. The fight was resumed. Friends of both men became embroiled in the fighting. One man was stabbed. A friend of Brewer emerged from the house with the shotgun. Brewer and appellant had been fighting on the ground. Brewer stood up and ran toward his friend with the shotgun. The appellant retrieved the pistol from Marzett and shot at Brewer. Four shots were fired by appellant. One bullet struck and killed Brewer. Appellant testified he fired the shots because he saw Brewer reaching for the shotgun; he feared for the safety of his friends and himself.
Shortly after the shooting appellant telephoned the police and arranged to turn himself in. Appellant was charged with the unlawful possession of a firearm and with felony murder. The firearm charge which formed the underlying felony for the felony murder charge was based on the fact that appellant had been convicted of the 1974 bicycle theft and had possession of a firearm.
Appellant filed a motion in the trial court seeking annulment of the 1974 bicycle theft conviction. He argued that his attorney, the prosecutor, and the judge had assured him that the 1974 conviction would be cleared and annulled as soon as he finished serving his two year probationary period. Appellant further contended he entered his plea and testified against Hankins because of this assurance.
After conducting an evidentiary hearing on the motion, the trial court refused to annul the 1974 conviction. The court found that although appellant may have been aware of the possibility of annulment, the sentencing court did not discuss annulment when the plea was accepted and apparently no one explained that the annulment procedure was not automatic. The trial court, after examining the statutes providing for annulment and for ex-pungement, held the present statutes would not permit the annulment or expungement of appellant’s firearm violation in any event.
Appellant then filed the motion to withdraw his nolo contendere plea under K.S.A. 22-3210(7) “to correct manifest injustice.” Appellant asserted the plea was entered when he was eighteen years old, that he was not guilty of the charges, and that the plea was inadvertently made on the advice of unqualified counsel. Appellant alleged that neither the prosecutor nor the court complied with their agreements to dismiss the case on completion of probation, that probation was completed in September, 1976, but the case was neither dismissed nor expunged.
The trial court held:
“The defendant has served his period of probation and has been released by the court. The judgment has been completed, the order executed, and the defendant released by the court. Therefore, the court has no jurisdiction to carry out the provisions under K.S.A. 22-3210(7), as requested by the defendant.”
We will first consider the question of annulment. The statute in effect at the time of appellant’s conviction was K.S.A. 21-4616 and it provided:
“Every defendant who had not attained the age of twenty-one (21) years at the time of the commission of the crime for which he was convicted, and who has served the sentence imposed or who has fulfilled the conditions of his probation or suspension of sentence for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court may set aside the verdict of guilty; and in either case, the court shall thereupon dismiss the complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the crime of which he has been convicted, and he shall in all respects be treated as not having been convicted, except that upon conviction of any subsequent crime such conviction may be considered as a prior conviction in determining the sentence to be imposed. The defendant shall be informed of this privilege when he is placed on probation or suspended sentence.
“In any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose conviction of crime has been annulled under this statute may state that he has never been convicted of such crime.”
This statute states that a defendant may be “permitted” to withdraw his plea and have the complaint dismissed. The annulment process is referred to as a “privilege.” Our former decisions construing this statute never have indicated the annulment process is automatic. In State v. Miller, 214 Kan. 538, 544, 520 P.2d 1248 (1974), we distinguished the California “mandatory” annulment provision and the “automatic” Federal Youth Corrections Act provisions for annulment. We described K.S.A. 21-4616 as providing for “permissive” annulment, stating:
“Like the granting of probation the annulment of a conviction is a part of the sentencing process. The sentencing judgment is a judicial function and the granting or denial of probation under 21-4603 is a part of the sentencing process vested in the trial court. (State v. Owens & Carlisle, 210 Kan. 628, 504 P.2d 249.) Likewise the granting or denial of an application for annulment of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way that a court exercises its discretion in the granting of probation, and in deciding whether or not probation should be revoked. The granting or denial of an application for the annulment of a conviction rests within the district court’s sound discretion.” 214 Kan. at 545.
In State v. Boone, 220 Kan. 758, 770, 556 P.2d 864 (1976), we state “[a] person’s conviction is annulled under K.S.A. 21-4616 only after judicial inquiry and ruling.”
We now continue to hold that annulment under K.S.A. 21-4616 is not automatic. Appellant’s probation was successfully served and terminated in September, 1976. The annulment statute, K.S.A. 21-4616, was repealed July 1, 1978. Appellant failed to apply for annulment until January 5, 1979. By then the statute had been replaced with the expungement statute, K.S.A. 1979 Supp. 21-4619, which has certain pronounced limitations affecting appellant’s request for annulment. K.S.A. 1979 Supp. 21-4619(g) expressly prohibits relief in a situation like the one in which appellant finds himself. That statute now provides:
“[B]ut the expungement of a felony conviction does not relieve an individual of complying with any state or federal law relating to the use or possession of firearms by persons convicted of a felony."
In addition the language of K.S.A. 1979 Supp. 21-4619(d)(1) prohibits expungement as follows:
“That the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner;”
A felony murder charge was pending against appellant when he filed his motion to have the 1974 conviction annulled.
Although appellant makes an assertion that he had a vested right in annulment, he provides no legal support for this statement. The above case law and the statutes indicate otherwise. The granting or denial of an application for annulment or expungement of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way a court exercises discretion in the granting of probation, in the setting of conditions of probation, and in deciding whether probation should be revoked, subject, however, to those limitations imposed by the annulment or expungement statute. Neither annulment nor expungement are automatic procedures.
We turn now to the question raised as to the refusal of the trial court to allow appellant to withdraw his plea of nolo contendere in the bicycle theft case. K.S.A. 22-3210 relating to entry and acceptance of pleas in pertinent part provides:
“(7) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”
Appellant argues that at the hearing on the motion to withdraw the plea the testimony of both the appellant and his mother supported his position that no sentence was to be imposed and that after two years of successfully serving probation the case against appellant was to be dismissed. The appellant testified that in exchange it was agreed that he was to waive preliminary hearing, waive trial by jury, enter his plea, and testify against his codefendant on behalf of the State. A paper in the file of the county attorney also indicated the State had agreed to recommend probation and suspension of the imposition of sentence in exchange for appellant’s cooperation. In the absence of evidence otherwise we must assume this recommendation was made to the court and rejected.
Although the appellant may have entered his plea in 1974, believing that the conviction would be automatically annulled, this information apparently was given to him by his attorney prior to entry of the plea. The record at the time of sentencing does not indicate that the prosecution or the judge ever made such a promise or stated that the conviction would be automatically annulled on successful termination of probation. The record does indicate appellant was sentenced for a period of from one to ten years. Sentencing was not suspended in 1974. No objection was then registered by either appellant or his attorney. When appellant completed his period of probation in 1976, he did not thereafter inquire concerning dismissal of the theft charge or annulment of his conviction.
The trial court after considering the conflicts in the evidence found that the motion to withdraw the plea should be overruled. Inherent in such a finding is a negative finding refusing to accept as true the testimony of the appellant and his mother.
A plea of guilty or nolo contendere may be withdrawn after sentence as provided in K.S.A. 22-3210(7) for good cause shown only when in the discretion of the trial court it becomes necessary to correct manifest injustice. Not every deviation from the requirements of the statute governing entry of pleas will require withdrawal of a plea. Trotter v. State, 218 Kan. 266, 269, 543 P.2d 1023 (1975). In Hicks v. State, 220 Kan. 279, 283, 552 P.2d 889 (1976), we held the failure of the sentencing court to advise the defendant as to his parole eligibility did not require withdrawal of defendant’s plea of guilty. Withdrawal of a plea is discretionary with the trial court. Considering the lapse of time and the facts of this case we cannot find the trial court abused its discretion in refusing to permit the appellant to withdraw his plea.
The final issue raised by the appellant is not new to the case law of this state. This court is again confronted with the question decided in State v. Moffitt, 199 Kan. 514, Syl. ¶ 6, 431 P.2d 879 (1967), and State v. Goodseal, 220 Kan. 487, Syl. ¶¶ 3, 11, 553 P.2d 279 (1976). The question in those cases was whether the collateral felony of unlawful possession of a firearm by an ex-felon under K.S.A. 21-4204 was an inherently dangerous felony so as to support the application of the felony murder rule under K.S.A. 21-3401. This court held in Moffitt and Goodseal that this possession felony would support the charge of felony murder. Since Moffitt and Goodseal were decided this rule has been followed in State v. Guebara, 220 Kan. 520, 553 P.2d 296 (1976); and State v. Birch, 221 Kan. 122, 558 P.2d 119 (1976). Other cases of felony murder which followed Moffitt do not appear to rely on the collateral felony of unlawful possession of a firearm by an ex-felon.
For the reasons set forth below a majority of this court has concluded that it was prejudicial error for the trial court to instruct the jury on the theory of felony murder. Accordingly we reverse the judgment.
This court in arriving at its decision in State v. Moffitt, 199 Kan. 514, relied on three California cases, People v. Ford, 60 Cal. 2d 772, 36 Cal. Rptr. 620, 388 P.2d 892 (1964); People v. Williams, 63 Cal. 2d 452, 47 Cal. Rptr. 7, 406 P.2d 647 (1965); and People v. Robillard, 55 Cal. 2d 88, 10 Cal. Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086 (1960). In State v. Goodseal, 220 Kan. at 491, this court acknowledged that the California Supreme Court had receded from its former position in the foregoing cases in deciding the later case of People v. Satchell, 6 Cal. 3d 28, 98 Cal. Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383 (1971). The California court ruled in Satchell that the unlawful possession of a firearm by a convicted felon, when viewed in the abstract, is not a felony inherently dangerous to human life for purposes of the felony murder rule and will not support a felony murder charge. However, this court in Goodseal in a 4-3 decision refused to reverse its previous position taken in Moffitt, and continued to rely on Moffitt and the cases overruled by the California Supreme Court.
The difference in the result reached in Satchell and in Goodseal comes from the rules adopted by these respective courts to help determine whether a particular collateral felony could be considered inherently dangerous to human life so as to support a conviction of felony murder. In Goodseal the court in considering the nature of the collateral felony not only views the felony in the abstract but also considers the circumstances of its commission. So in Goodseal it was not the possession of the firearm but its use by the ex-felon which enabled the court to find the felony was inherently dangerous to human life. In Satchell the California court decided that whether a collateral felony is inherently dangerous should be determined by viewing the elements of the crime in the abstract without considering the circumstances of commission. It held the possession was passive and not inherently dangerous to human life. Use of the gun was not considered.
The Kansas felony murder statute provides:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felonyK.S.A. 21-3401. Emphasis supplied.
Under the literal wording of this statute any felony is sufficient to support a charge of felony murder if a causal relation exists. This court in State v. Goodseal, 220 Kan. at 492, quoting from a Delaware case, acknowledges that the ostensible purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and that the doctrine should not be extended beyond its rational function which it was designed to serve. To invoke the felony murder rule there must be proof that a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. This court has declared certain rules applicable to such cases. Some of these rules are summarized in State v. Smith, 225 Kan. 796, 799-800, 594 P.2d 218 (1979), as follows:
“In order to invoke the felony murder rule under K.S.A. 21-3401, there must be proof that the homicide was committed in the perpetration of or an attempt to perpetrate a felony. This means there must be a direct causal connection between the commission of the felony and the homicide. State v. Moffitt, 199 Kan. 514, 534, 431 P.2d 879 (1967); see also 40 Am. Jur. 2d, Homicide § 73, p. 367; 40 C.J.S., Homicide § 21 (b). Moreover, the underlying felony must be one inherently dangerous to human life. State v. Moffitt, 199 Kan. at 534. Thus, the State must establish the defendant committed a felony inherently dangerous to human life and the killing took place during the commission of the felony. State v. Branch and Bussey, 223 Kan. 381, 382, 573 P.2d 1041 (1978) and cases cited therein.”
An interesting discussion of the history of the felony murder rule of various states and countries, including England where it was abrogated in 1957, and the varied application of the rule in this country appears in the Model Penal Code § 201.2, Comment (Tent. Draft No. 9, 1959.) A constructive critique entitled Felony Murder in Kansas may be found in 26 Kan. L. Rev. 145 (1977). We recommend both articles to the interested scholar.
Theoretically the elements of malice, deliberation and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. It is not necessary for the prosecutor to prove these elements or for the jury to find such elements of the crime. They are established by proof of the collateral felony. State v. Wilson, 220 Kan. 341, Syl. ¶ 2, 552 P.2d 931 (1976). Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony. State v. Bey, 217 Kan. 251, 260, 535 P.2d 881 (1975).
The felony murder rule has logic based on the theory of transferred intent. The malicious and premeditated intent of committing the inherently dangerous collateral felony is transferred to the homicide to supply the elements of malice and premeditation without further proof. Consistent with this thinking, most courts require that the collateral felony be inherently dangerous for the felony murder rule to be applicable. 2 Wharton’s Criminal Law § 146, p. 210 (14th ed. 1979).
“In the typical case of felony-murder, there is no malice in ‘fact’, express or implied; the malice is implied by the ‘law’. What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a resúlt of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.” 2 Wharton’s Criminal Law § 145, p. 204 (14th ed. 1979).
The collateral felony we are dealing with in the present case is defined in K.S.A. 21-4204 as follows:
“(1) Unlawful possession of a firearm is:
“(a) Possession of any firearm by an habitual drunkard or narcotics addict; or
“(b) Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
This crime is a status crime in that it is limited to drunkards, drug addicts and ex-felons. It is malum prohibitum. The possession of the firearm is prohibited because a firearm in the possession of a habitual drunkard, a narcotics addict or an ex-felon is against the public policy of the State as declared by the legislature. The possession of the firearm when viewed in the abstract is not inherently dangerous to human life. This is true because it seems unlikely that mere possession, which has been defined as dominion and control over an object, and not its use, could be undertaken in so dangerous a manner that the prohibited possession would result in murder in the first degree. The above meaning of the possession as contemplated in this firearm statute is taken from State v. Neal, 215 Kan. 737, 738-39, 529 P.2d 114 (1974). It appears quite impossible to find an intent in this collateral felony encompassing malice, deliberation and premeditation so as to transfer these elements to the homicide and relieve the prosecution from proof of the same. If these elements are present in the use of the firearm they are not present in the possession of the firearm. They should then be proven as elements of premeditated first degree murder by reason of the malicious and deliberate use of the gun.
We note that once the use of the firearm begins, a separate crime is committed; e.g., assault with a deadly weapon assuming the required intent is present. Aggravated assault is an integral part of the homicide and felony murder cannot be based thereon. State v. Clark, 204 Kan. 38, Syl. ¶ 1, 460 P.2d 586 (1969). It follows that unlawful possession of a firearm, when viewed in the abstract, does not harbor the malice and premeditation for the transferred intent so as to make a homicide a felony murder.
Mr. Justice Prager in the dissent in State v. Goodseal, 220 Kan. 503, beginning at page 506, sets forth three examples of the illogical results which can flow when a homicide is unintentional and the collateral felony is not viewed in the abstract in determining whether it is inherently dangerous to human life. These examples are as follows:
“For example, let us assume that a defendant, having been previously convicted of felony for writing an insufficient fund check, purchases a firearm to protect himself and his family against criminal invaders of his home. He accidentally drops the gun, causing it to strike the floor and be discharged, killing a guest in his home. Since the killing occurred during commission of a felony, possession of the gun unlawfully, defendant would be precluded from interposing the defense of accident. Under the rule adopted by the majority defendant would be guilty of murder in the first degree and possibly subjected to a term of life imprisonment in the state penitentiary.
“Another example — a farm lad served in the Vietnam war and at the time of his discharge obtained an automatic rifle which he took to his farm home. He wanted the gun not only for the protection of himself and his family but also for use in the killing of predators that might attack his livestock. Under the provisions of K.S.A. 21-4201(l)(g) it is a class E felony for any person to possess a firearm capable of discharging automatically more than once by a single function of the trigger. An intruder comes upon the defendant’s farm. The defendant points a gun at the intruder, directing him to get off his place. The gun accidentally discharges and kills the intruder. The rule adopted by the majority in this case would require the jury to convict the defendant of murder in the first degree since at the time of the killing the defendant was committing another felony — possession of an automatic weapon — at the time the killing took place.
“One more example should suffice. A defendant having been previously convicted of a felony accidentally shoots another person. At the time defendant was in possession of a firearm with a barrel eleven-inches long. Applying the felony-murder rule the defendant would be guilty of felony murder and upon conviction a life sentence would be imposed. If the firearm involved in the case had a barrel twelve-inches long the defendant would not be guilty of any criminal offense since the shooting was accidental and would fall into the category of an excusable homicide. It does not seem reasonable to impute malice to the defendant in the first situation and not to do so in the second situation; yet this absurd result would follow under the rule adopted by the majority of the court in this case.” 220 Kan. at 506-507.
Further injustice may occur in felony murder cases because the charge of felony murder may strip an accused of the normal defenses possible in a murder case. In the present case, for instance, appellant had no intent to violate the law by possessing the firearm. He believed his previous bicycle theft conviction was automatically dismissed when he successfully completed his probation. He was in error and he possessed a firearm so under the felony murder charge the defenses such as accident, lack of malice and heat of passion were not open to him for the possession establishing the underlying felony could not be disputed. When proof of the underlying felony is strong no instructions on lesser degrees of murder are required. State v. Sullivan & Sullivan, 224 Kan. 110, 124, 578 P.2d 1108 (1978); State v. Reed, 214 Kan. 562, 564, 520 P.2d 1314 (1974).
In addition, filing a charge under the felony murder rule in most, if not all, cases removes any possibility of establishing the defense of self-defense. Under K.S.A. 21-3211, a person is justified in the use of force against an aggressor when and to the extent it appears to him, and he reasonably believes, that such conduct is necessary to defend himself or another against the aggressor’s imminent use of unlawful force. If two men are fighting, as in this case, and one grabs a shotgun he is then the aggressor and the other may defend himself by use of a gun, if he can find one in time. However, under K.S.A. 21-3214 an instruction on self-defense permitted by K.S.A. 21-3211 is not available to a person who is committing a forcible felony. State v. Purdy, 228 Kan. 264, 615 P.2d 131 (1980). Under K.S.A. 1979 Supp. 21-3110(8) the definition of forcible felony includes treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person. Unlawful possession of a firearm is not included in the forcible felonies enumerated nor does it fit within the catch-all phrase at the end of the definition.
Now, where does that leave the person who is confronted with the rule in Moffitt and Goodseal holding that possession of a pistol after conviction of a felony is inherently dangerous to human life? Logically under Goodseal it follows that the defendant when charged with felony murder is not entitled to an instruction on self-defense. If the court considers the use of the firearm to establish that the collateral felony is inherently dangerous to human life, the use also establishes that the collateral felony is a forcible felony. This takes away from the accused the defense of self-defense.
A majority of this court now are convinced that the logic, reasoning and rule urged by Mr. Justice Prager in the dissent in State v. Goodseal, 220 Kan. at 503, should be adopted for Kansas. Accordingly, we hold that in determining whether a particular collateral felony is inherently dangerous to human life so as to justify a charge of felony murder under K.S.A. 21-3401, the elements of the collateral felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination. State v. Moffitt, 199 Kan. 514, Syl. ¶¶ 6, 7, and all cases holding to the contrary are disapproved.
The unlawful possession of a firearm proscribed by K.S.A. 21-4204(l)(fc) when considered in the abstract is not a felony inherently dangerous to human life and will not sustain a conviction for murder in the first degree under the felony murder rule. The rule formerly stated and applied in State v. Moffitt, 199 Kan. 514, Syl. ¶¶ 6, 7, 431 P.2d 879 (1967); and its progeny, State v. Goodseal, 220 Kan. 487, 553 P.2d 279 (1976); State v. Guebara, 220 Kan. 520, 553 P.2d 296 (1976); and State v. Birch, 221 Kan. 122, 558 P.2d 119 (1976), is disapproved and overruled.
There remains for consideration the question of retroactive-prospective application of the new rule declared herein. A discussion of the factors to be considered in arriving at a proper solution may be found in Vaughn v. Murray, 214 Kan. 456, 464-467, 521 P.2d 262 (1974). We are aware of some of the effects that retroactive application may have on the administration of justice in the courts of this state, and we realize no rule stating the limits of the forward operation, as opposed to that of relation backward, can be declared without possible injustice and hardship in some cases. However, the rule as this day declared shall govern the present case and be applied to other cases pending on the date the opinion in this case is filed and to all future cases in which the question has been timely raised and presented in the trial court.
The order of the trial court denying annulment of the conviction and refusing to allow withdrawal of the plea of nolo contendere in the bicycle theft case, in Appeal No. 51,420 herein, is affirmed.
The judgment of conviction on the felony murder charge, in Appeal No. 51,401 herein, is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
McFarland, J.:
Craig M. Bryant appeals from his conviction by jury trial of aggravated robbery (K.S.A. 21-3427).
On June 15, 1978, a service station attendant, Jimmie L. Stevens, was shot and killed during a robbery of the Universal Service Station on North Ohio Street in Wichita. A few days later defendant and Clarence Ferguson were arrested for the crimes committed at the service station. Each man was offered immunity in exchange for testifying against the other. Ferguson accepted the offer and testified for the State at defendant’s trial. Defendant was charged with first degree felony murder (K.S.A. 21-3401), unlawful possession of a firearm (K.S.A. 21-4204), and aggravated robbery (K.S.A. 21-3427). Defendant was acquitted of the murder and firearms charges, but was convicted on the aggravated robbery charge. Six months after his conviction defendant filed a motion for new trial based on newly discovered evidence. The motion was overruled. Defendant appeals from his conviction and the denial of his motion for a new trial.
The first issue on appeal is whether the trial court erred in refusing to admit evidence offered by defendant of prior and subsequent criminal conduct of the State’s witness, Clarence Ferguson. The evidence was offered for impeachment purposes and to prove identity pursuant to K.S.A. 60-455.
Some additional facts are necessary to place the issue in perspective. The testimony of both defendant and Ferguson is in agreement on certain facts. It is undisputed that on the night of the robbery both men were riding around in Wichita in defendant’s automobile. They agree that they drove to the service station in question. Both agree that the aggravated robbery and killing of Jimmie Stevens occurred while they were at the station. Each man testified the crimes were essentially the individual effort of the other.
Defendant sought to introduce evidence pursuant to K.S.A. 60-455 of a prior conviction and both prior and subsequent criminal conduct to prove Ferguson’s “identity” as the perpetrator of the crimes for which defendant was standing trial. Defense counsel characterized the trial as a liars’ contest and alleged under the circumstances such evidence was admissible on the identity ground of K.S.A. 60-455.
The proffered evidence related to (1) a 1974 conviction of aggravated robbery of the operators of a potato chip truck; (2) a relatively recent acquittal of an aggravated robbery of a pawnshop charge; and (3) pending charges of aggravated robbery, aggravated sodomy, and rape arising out of a flower shop robbery, the incident having occurred subsequent to the crimes herein. The trial court held that K.S.A. 60-455 applied to witnesses in criminal cases and admitted evidence of the potato chip truck robbery to prove the identity of the perpetrator of the crimes for which defendant was charged and for impeachment purposes. The trial court excluded evidence of the pawnshop and flower shop incidents as not being sufficiently similar in nature to the present charges.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
By way of explanation of the statutes referred to in K.S.A. 60-455, K.S.A. 60-447 relates to character trait as proof of conduct; K.S.A. 60-448 relates to character trait for care or skill; and K.S.A. 60-445 relates to discretion vested in the trial judge in determining questions arising under the rules of evidence set forth in Article 4 of Chapter 60 of the Kansas Statutes Annotated.
The threshold question is whether K.S.A. 60-455 is applicable to witnesses in criminal cases.
K.S.A. 60-455 is extensively discussed in State v. Ely, 215 Kan. 168, 523 P.2d 397 (1974). No effort will be made to quote the entire Bly opinion, but the following is particularly noteworthy:
“The legal concepts contained in 60-455 may be found in Kansas decisional law as it existed prior to the adoption of the statute. As early as the turn of the century the general rule was recognized that testimony as to the commission of offenses by a defendant in a criminal case, not in any way connected with that charged in the information, and which would tend to degrade and prejudice him, should be carefully excluded from the jury. (The State v. Kirby, 62 Kan. 436, 63 Pac. 752.) Exceptions were recognized to the rule prior to the adoption of 60-455. The general rule and the exceptions which developed have been repeatedly recognized and applied by many decisions of this court. . . .
“It is suggested by the authors of Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, at page 376, that evidence of other offenses is ordinarily excluded because of the great danger of prejudice to the defendant which would result from the admission of such evidence. The authors point out there are at least three types of prejudice which might result from the use of other crimes as evidence. First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed. Thus, in several ways the defendant may be prejudiced by such evidence.
“Since the enactment of 60-455 it has been broadly stated by this court on several occasions that the rule of evidence stated in 60-455 as applied to criminal proceedings has not materially changed the case law as it developed in Kansas prior to the enactment of that statute. (State v. Wright, supra.) [194 Kan. 271, 398 P.2d 339.] This statement is not entirely correct because as a matter of fact the provisions of 60-455 more strictly limit the admissibility of evidence of other crimes than did the case law as it existed prior to its enactment. Our decisions interpreting 60-455 have established certain basic principles as guidelines to be followed by the trial courts in applying the statute. By way of summary some of these basic principles are the following:
"1. By its specific language 60-455 makes inadmissible evidence of other crimes or civil wrongs to prove the defendant’s disposition to commit crime. Our more recent cases hold without equivocation that K.S.A. 60-455 expressly excludes evidence of other crimes if its only purpose is to show the defendant’s disposition, inclination, attitude, tendency or propensity to commit crime. (State v. Clingerman, 213 Kan. 525, 516 P.2d 1022; State v. Seely, 212 Kan. 195, 510 P.2d 115; State v. Taylor, 198 Kan. 290, 424 P.2d 612; and State v. Jenkins, 203 Kan. 354, 454 P.2d 496.) We specifically disapprove the language in State v. Lewis, 195 Kan. 389, 405 P.2d 796, and that of any other cases where we have stated that evidence of other crimes is admissible to prove inclination, tendency or any other words which mean the same as ‘disposition’ to commit crime.
“2. To be admissible under 60-455 evidence of a prior conviction must be relevant to prove one or more of the material factors of proof specified in the statute. There are eight of them listed: i.e., (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity and (8) absence of mistake or accident. (State v. Clingerman, supra [p. 527].)
“3. The rule set forth in 60-455 is to be strictly enforced. This means that evidence of other offenses or civil wrongs is not to be admitted without a good, sound reason. The rule of strict enforcement is recognized in State v. Gunzelman, 210 Kan. 481, 488, 502 P.2d 705; State v. Anderson, 202 Kan. 52, 446 P.2d 844; and State v. Wright, supra.
“4. In determining whether or not to admit evidence of other crimes a trial court must employ a ‘balancing’ procedure, i.e. a court must weigh the probative value of the evidence offered against its tendency to prejudice the jury. If the potentiality of natural bias and prejudice overbalances the contribution to the rational development of the case, the evidence must be barred. We wish to emphasize in passing that if trial judges content themselves with merely determining whether the particular evidence of other crimes fits into one of the approved exceptions, they may lose sight of the underlying policy of protecting the accused against unfair and sometimes unbridled prejudice. (M. C. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411.) The obligation of a trial court to exercise its sound judicial discretion in determining the admissibility of other crimes is discussed in some depth in State v. Davis, 213 Kan. 54, 515 P.2d 802. In Davis we emphasized that relevancy is not the only test to be applied in determining whether or not evidence of other crimes has probative value. Probative value consists of more than logical relevancy. Evidence of other crimes has no real probative value if the fact it is supposed to prove is not substantially in issue. In other words the element or elements being considered (e.g., intent, motive, knowledge, identity, etc.) must be substantially in issue in the case before a trial court should admit evidence of other crimes to prove such elements. Examples might be helpful. Where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent. Where an armed robber extracts money from a store owner at gunpoint his felonious intent is obvious from the act itself and is not really in dispute. Hence evidence of other robberies to prove intent should not be admitted since the element of intent is not really at issue in the case. Likewise where a defendant admits that he committed the act and his presence at the scene of the crime is not disputed, a trial court should not admit other crimes evidence for the purpose of proving identity. The obvious reason is that such evidence has no probative value in the case. To summarize, other crimes evidence has no probative value if the fact it is supposed to prove is not substantially in issue, because such evidence fails to advance the search for truth; it serves no purpose to justify whatever prejudice it creates, and must be excluded for that reason.” (pp. 173-176.) (Emphasis in original.)
It is true that K.S.A. 60-455 speaks of “person” rather than “defendant.” However, defendant can take no refuge in the use of the term “person.” One must bear in mind that the statute also applies to civil actions where the acts of a plaintiff or, say, a nonparty agent for a party principal might be at issue. K.S.A. 60-455 has been before this court in numerous cases and our research has disclosed no instance where its applicability to witnesses in criminal cases has been even intimated.
In State v. Johnson, 219 Kan. 847, 549 P.2d 1370 (1976), the defendant sought on various grounds to introduce evidence of prior criminal activity by a witness. The relevant syllabi are:
“[4] Under K.S.A. 60-421 only convictions of crimes involving dishonesty are admissible to impeach the credibility of a witness.”
“[5] Under K.S.A. 60-422(d) evidence of specific instances of misconduct of a witness relevant only as tending to prove a trait of his character is inadmissible where offered for the sole purpose of attacking the credibility of the witness.”
“[6] K.S.A. 60-455 has no applicability to evidence offered to impeach the credibility of a witness.”
Corresponding portions of the opinion are as follows:
“Defendant next alleges that the trial court erred in refusing to permit counsel to cross-examine one of the state’s witnesses about an alleged arrest for housebreaking several weeks earlier. The contention is without merit. The evidence could have no conceivable relevance except to affect the credibility of the witness. Attacks on credibility are covered by K.S.A. 60-421 and 422. Section 421 provides:
“ ‘Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility.’
The clear import is that only relevant convictions are admissible. The witness had not been convicted.
“Section 422 in part provides:
“ ‘As affecting the credibility of a witness . (d) evidence of specific instances of his conduct relevant only as tending to prove a trait oí his character, shall be inadmissible.’
This latter section was most recently discussed in State v. Humphrey, 217 Kan. 352, 363-4, 537 P.2d 155. There the defendant sought to cross-examine on and introduce direct evidence of specific instances of a state drug agent’s past activities in the world of vice. We concluded that because the evidence went solely to credibility § 60-422(d) made it inadmissible. See Syl. para. 9. Under that rule evidence of this specific instance of wrongdoing which had not resulted in a conviction was clearly inadmissible, as the trial court ruled.
“Appellant also cites K.S.A. 60-455, but we are unable to see how that section is applicable. It ‘is directed against the idea that when it is shown that a person committed a crime on a former occasion there arises an inference that he has a disposition to commit crime and therefore committed the crime with which he is now charged.’ (Advisory Committee Notes in Gard, Kansas Code of Civil Procedure Annotated, § 60-455. See also, State v. Bly, 215 Kan. 168, 523 P.2d 397.) The witness here was, of course, not charged with a crime, and 60-455 is simply not pertinent.” (pp. 851-52.) (Emphasis in original.)
In our opinion, the extension of K.SA. 60-455 to witnesses in criminal cases, other than the accused, would defeat the limited purpose and permissible use of the statute as previously construed by this court. The fallacy of extending the application of the statute to witnesses in criminal cases is well demonstrated by its use in the case before us. The trial court admitted Ferguson’s conviction of the potato chip track robbery to identify Ferguson as the perpetrator of the service station robbery and murder. Ferguson was not a defendant in the case and his guilt or innocence could never properly be a matter for this jury’s determination. The following instruction was given to the jury:
“Instruction No. 11
“Evidence has been admitted tending to prove that a witness, Clarpnce E. Ferguson, committed certain crimes other than the offenses charged against the defendant. That evidence may be considered solely for two purposes, and no other purposes, those two purposes being as follows:
“l.In relation to the issue raised by the defendant of the identity of said Clarence E. Ferguson as the person committing the offenses in Counts One and Two with which the defendant is charged, those offenses commonly being called First Degree Murder, or ‘Felony Murder,’ and Aggravated Robbery, respectively.
“2. As it might affect the credibility of the testimony of the witness, Clarence E. Ferguson.”
Contrast this instruction with PIK Crim. 52.06:
“Evidence has been admitted tending to prove that the defendant committed (crimes) (a crime) other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s (motive) (opportunity) (intent) (preparation) (plan) (knowledge) (identity) (absence of mistake or accident).”
Note how the PIK instruction correctly limits the use of such evidence to one or more material factors of proof specified in the statute; whereas, paragraph one of the trial court’s instruction, while flying the flag of “identity,” is little more than an instruction saying that the evidence is to be considered by the jury in determining whether Clarence Ferguson committed the crimes for which defendant was charged and, hence, which version of the offense should be believed.
Ferguson and defendant each testified to different versions as to what transpired at the service station. Each placed the commission of the crimes on the other. Obviously, defendant desired that the jury believe his version rather than Ferguson’s version. The credibility of Ferguson was a factor in the trial. Evidence of prior criminal conduct of Ferguson would be subject to the limitations of K.S.A. 60-421, which provides:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
The potato chip truck robbery was the only incident which had resulted in conviction. The pawnshop incident had resulted in acquittal and the charges were pending on the flower shop incident. Evidence of the latter two incidents would, accordingly, on its face not be admissible under K.S.A. 60-421.
We therefore conclude that K.S.A. 60-455 does not apply to a witness in a criminal case other than the accused, and evidence that such a witness may have committed a crime or civil wrong cannot be introduced thereunder. It follows that the trial court did not err in refusing to admit evidence relative to the pawnshop and flower shop incidents offered pursuant to K.S.A. 60-455. As previously stated, inasmuch as neither incident had resulted in a conviction, such evidence on its face was inadmissible under K.S.A. 60-421. No reversible error is shown on this issue.
The next issue is whether the trial court erred in instructing the jury under the aiding and abetting statute, K.S.A. 21-3205.
Defendant was charged as a principal. The following instruction was given:
“Instruction No. 8
“With respect to the charges in Counts One and Two, First Degree Murder, or ‘Felony Murder,’ and Aggravated Robbery, respectively, you are further instructed that a person is criminally responsible for a crime committed by another if, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he aids, abets, advises or counsels the other to commit the crime. A person who so aids, abets, advises or counsels another to commit the crime is guilty of the crime charged regardless of the extent of his participation.
“You are therefore instructed in this case that if you find beyond a reasonable doubt that the defendant, Craig M. Bryant, knowingly counseled, aided, abetted or advised Clarence E. Ferguson in the commission of the crime or crimes charged in the Information, as defined in instructions numbered two (2) and three (3), then he, individually, is guilty of such crimes as though he, by himself, without assistance, committed those crimes.”
Defendant objected to the instruction on the ground that under the evidence he was either the principal (Ferguson’s version) or a nonparticipant (defendant’s version). The same contention is made on appeal. Defendant further argues that such instruction permitted a compromise verdict. The jury was not obligated to accept either version in toto. From the totality of the evidence the jury could have reasonably concluded that Ferguson was the principal and that defendant aided or abetted Ferguson in the robbery. No error is shown in the giving of the aiding and abetting instruction.
Defendant’s next issue is whether the trial court erred in not compelling Clarence Ferguson to testify at the hearing on defendant’s motion for a new trial, which was based on alleged newly discovered evidence.
Some additional facts are necessary to the determination of this issue. The motion was filed several months after defendant’s conviction. At the time, Ferguson and defendant were both inmates at the Kansas State Penitentiary. The basis for the motion was the alleged recantation of Ferguson’s testimony at Bryant’s trial. Defendant offered two exhibits, a letter and an affidavit, both purportedly written by Ferguson, recanting Ferguson’s prior testimony. At the hearing, Ferguson and defendant Bryant were both present and represented by counsel. A third inmate, who allegedly had a conversation relevant hereto with Ferguson, was also present and represented by counsel.
At the hearing, upon advice of counsel, Ferguson refused to testify, asserting the Fifth Amendment privilege against self-incrimination. As a result of Ferguson’s assertion of his Fifth Amendment rights, the exhibits were not admitted inasmuch as the witness was not available for cross-examination by the State. Defendant argues the State could have granted Ferguson further immunity which would have made the witness available. Defendant appears to argue that somehow the court should have compelled the State to grant immunity to the witness.
K.S.A. 22-3415 provides:
“The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of the parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute.
“The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him unless such testimony is a violation of federal law. He shall not ‘be granted immunity from prosecution for perjury or false statement or any other crime committed in giving such evidence.” (Emphasis added.)
Clearly, the statute precluded the State from granting immunity to Ferguson for perjury in Bryant’s trial.
Finally, defendant argues the exhibits should have been admitted pursuant to K.S.A. 60-460(J) as declarations against interest. In State v. Prince, 227 Kan. 137, 147, 605 P.2d 563 (1980), this court stated:
“The test of admissibility under K.S.A. 60-460(j) was correctly stated in Thompson v. Norman, 198 Kan. 436, 424 P.2d 593 (1967). This court stated the statute requires, as a ‘preliminary measure of trustworthiness’ the trial judge make a finding, prior to admitting a declaration against interest, that
“ ‘the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used. The judge may in a particular case be faced with a difficult decision where caution should be exercised; in making it he necessarily must be vested with a wide discretion.
“ ‘In determining admissibility he may consider the nature and character of the statement, the person to whom it was made, the relationship of the parties, the probable motivation of the declarant in making the statement, and the circumstances under which it was made.
“ ‘The burden was upon the defendant to satisfy the foundational requirements prior to admission of the declaration. Whether these requirements were satisfied is a matter committed to the discretion of the trial judge.’ Thompson v. Norman, 198 Kan. at 443.”
Although the same are not in the record, the court mentioned at the hearing that it had received letters, purportedly from Fer guson, recanting the offered exhibits and, in effect, reinstating Ferguson’s trial testimony. Under the totality of the circumstances, did the trial court commit an abuse of discretion in failing to admit the exhibits pursuant to K.S.A. 60-460(j)? We think not. We find no reversible error in the trial court’s denial of defendant’s motion for a new trial.
As his final issue on appeal defendant contends he was denied effective assistance of counsel at trial. The standard for determining effective assistance of counsel was last set forth in State v. Rice, 227 Kan. 416, 418-19, 607 P.2d 489 (1980), wherein we approved the following from Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶ ¶ 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978):
“ ‘The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.
“ ‘Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage iri it, and which causes the client’s conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of “effective” counsel.
“ ‘In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.’ ”
Defendant’s complaint is predicated on the fact that his own testimony placed him at the scene of the crime. In view of Ferguson’s testimony, as well as other evidence introduced at trial, had defendant not testified there was a strong possibility defendant would have been convicted on all three counts, including felony murder. Applying the Schoonover test, we have no hesitancy in concluding this point is wholly without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
John Purdy, 16 years of age at the time of the offenses, was convicted by a jury in Sedgwick County of first degree murder (K.S.A. 21-3401), aggravated burglary (K.S.A. 21-3716), and two counts of aggravated robbery (K.S.A. 21-3427). He was sentenced to life imprisonment for murder, ten years to life for aggravated robbery count 1, fifteen years to life for aggravated robbery count 2, and five to twenty years for aggravated burglary. Purdy was tried with codefendant Kenneth Hutchison but each appealed separately. See State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980).
The charges which led to Purdy’s conviction arose from the armed robbery and burglary of the home of Robert Eugene Humphrey on West Kellogg in Wichita, in the late evening of September 1, 1977. Prior to the crime, John Purdy was riding around drinking beer with Hutchison, Jack Jefferies and Jessica Finn in a pickup truck belonging to Jefferies’ father. Jessica advised the others she had knowledge of a large amount of cash in Humphrey’s home, and the four drove to the house with the appropriation of that money in mind.
Upon arrival at Humphrey’s home, Hutchison cut open the screen door with his buck knife, opened the latch and Purdy kicked the door open. Purdy and Hutchison then entered the house. Purdy was armed with a .44 magnum pistol and Hutchison with a .357 handgun.
Robert Humphrey and his financee, Nadine Schoenhoff, had just retired for the night. At approximately midnight, Nadine heard a banging sound from the kitchen. Humphrey grabbed the gun which he kept at the head of his bed, and cocked it. He crawled through the bedroom door on his hands and knees toward the kitchen. Purdy saw him crawl around the side of a desk and fired the .44 magnum revolver at Humphrey’s back and into his chest. When Humphrey raised to his knees Purdy shot him again, killing him. Purdy reached down and removed Humphrey’s wallet. Purdy and Hutchison then went into the bedroom where Nadine was screaming hysterically. They demanded the location of the money and she replied there was none. Purdy ordered her to lie down on the floor and to keep her eyes closed. He kicked her in the face, grabbed her purse and both men fled to the pickup. They got into the pickup and drove to a home on Hiram Street where John Purdy sometimes stayed, and deposited the guns. All of the parties, except Jefferies, drove to South Broadway and checked into a motel. There they searched the stolen billfold and purse, taking what valuables were present. The billfold and purse were later burned in an alley near the motel.
On September 13, 1977, Kenneth Hutchison was arrested for failure to appear pursuant to a juvenile court order. At that time he indicated to the police he had some knowledge of the Humphrey homicide and implicated John Purdy. The police kept him throughout the day until 2:00 a.m. on September 14th to talk with him and search for Purdy. The police released Hutchison and picked him up at 9:30 the next morning to continue the search for Purdy, who was later located and arrested. At 5:25 p.m. on September 16, 1977, Hutchison was given a Miranda warning at which time he signed a waiver of his rights and gave a statement to the police. The statement was ruled voluntary by both the juvenile court and the trial court.
John Purdy also gave a statement to the police on September 16, 1977. Purdy admits he advised the police he waived his Miranda rights but claims he didn’t understand the meaning of his waiver and states he requested an attorney and permission to talk to his stepmother. The court also refused to suppress Purdy’s statement and both statements were introduced in evidence at the joint trial. Neither defendant took the stand. Each statement was excised to prevent reference to the other defendant pursuant to the Bruton rule on confrontation. The effect of the excision is the principal point on this appeal. Both defendants were convicted. This appeal is that of John Purdy.
Purdy’s first issue concerns the introduction into evidence of excised versions of his own statement and that of Hutchison. For proper consideration of this issue it is important to fully understand how the trial court handled the statements made by Purdy and Hutchison. In Hutchison’s statement the court with the assistance of the attorneys carefully deleted all references to Purdy. Officer Sproul’s testimony laid a foundation for admission of the excised statement by testifying to the time, place and circumstances of the statement. He identified the original typed transcript which was introduced into evidence but was not shown to the jury. Hutchison was not permitted to cross-examine Sproul on the portions of the statement referring to Purdy. The court then ordered the unexcised portion of Hutchison’s statement read into evidence to the jury.
The events surrounding Purdy’s statement are as follows: After finding Purdy’s statement was voluntarily made, the court, with the assistance of the attorneys, deleted the portions of Purdy’s statement which referred to Hutchison. The entire statement was introduced into evidence upon the foundation laid by Policeman Ray Davis and Patrolman Jim Bogle, but was not shown to the jury. The excised statement was read to the jury by two court reporters, the same procedure used with Hutchison’s statement. The trial court gave the following limiting instruction:
“You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.
“The statement made by defendant John Purdy can only be considered as evidence against John Purdy.
“The statement made by defendant Kenneth Hutchison can only be considered as evidence against Kenneth Hutchison.”
Purdy argues excising the statements changed the meaning to such extent the admission was improper and could not be cured by the limiting instruction. Let us examine the precedent.
Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968) held, in the words of this court in State v. Rodriquez, 226 Kan. 558, 561, 601 P.2d 686 (1979):
“[A] defendant is deprived of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution where the extrajudicial statement of a non-testifying codefendant inculpating the defendant is admitted and where the codefendant is not available for cross-examination, although an instruction is given limiting the use of the confession to the codefendant.”
The extrajudicial statement of the non-testifying codefendant must pose a substantial threat to the complaining defendant’s case.
Bruton was applied retroactively in Roberts v. Russell, 392 U.S. 293, 20 L.Ed.2d 1100, 88 S.Ct. 1921 (1968). Some of the more recent Kansas cases applying Bruton are:
State v. Rodriquez, 226 Kan. 558; State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978); State v. Edwards, 224 Kan. 266, 579 P.2d 1209 (1978); State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978); State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
An important exception to Bruton emerged in Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726 (1969). In that case the United States Supreme Court held that although the trial court erred in admitting the codefendant’s confessions, the error was harmless because the confessions were merely cumulative in light of the overwhelming evidence against the defendant. In Brown v. United States, 411 U.S. 223, 231, 36 L.Ed.2d 208, 93 S.Ct. 1565 (1973), the Supreme Court rejected the notion that “a Bruton error can never be harmless,” and applied the rule set forth in Harrington.
With this background information regarding the impact of Bruton in hand, we proceed to the special circumstances of this case. The process of editing a defendant’s statement or confession to excise or delete incriminating references to a codefendant is known as redaction. There are no Kansas cases post-Bruton dealing with this procedure but the process has undergone extensive review in numerous federal and state jurisdictions. In Bruton, the United States Supreme Court recognized the use of redaction in various jurisdictions, without specific approval or disapproval. Bruton v. United States, 391 U.S. at 134.
The following federal and state cases illustrate recent holdings regarding the use of redacted statements in trials of joint codefendants.
(1) Redaction is proper “if there is no ‘substantial threat’ to an accused’s right of confrontation and cross-examination of witnesses.” United States v. Hernandez, 608 F.2d 741, 749 (9th Cir. 1979). The statement admitted into evidence in Hernandez eliminated any suggestion of codefendant’s involvement in the crime charged.
(2) The witness presenting the redacted statement cannot pointedly reveal to the jury that the statement is in excised form. United States v. Danzey, 594 F.2d 905 (2nd Cir. 1979).
(3) Redacted statements are allowed if the excused versions do not “explicitly suggest the participation of a complaining defendant.” United States v. Belle, 593 F.2d 487, 493 (3rd Cir. 1979). The court in Belle also enunciated the view that the statement alone must inculpate the non-testifying codefendant, not the effect of the statement coupled with other incriminating evidence.
(4) Although the redacted statement referred to “other persons,” the 2nd Circuit Court of Appeals applied the following rule: “[T]he admission of the statements of a non-testifying codefendant [is] a violation of the defendant’s Sixth Amendment right of confrontation if they are both clearly inculpatory as to the defendant and vitally important to the Government’s case against the defendant, cautionary instructions notwithstanding.” United States v. Knuckles, 581 F.2d 305, 313 (2nd Cir. 1978). The complaining defendant in Knuckles was not named, therefore the court found the admission was not clearly inculpatory. In addition, there was a great deal of evidence independent of the statement implicating the defendant.
(5) There was no error in admitting a redacted statement indicating the confessing defendant had been assisted by two other men. The statement referred to “male individuals.” United States v. Holleman, 575 F.2d 139 (7th Cir. 1978). See also United States v. English, 501 F.2d 1254 (7th Cir. 1974), where a confession was approved in which it was made known that two other people were involved without identifying or describing them.
(6) The statement may be admitted if not clearly inculpatory as to the complaining codefendant and not vitally important to the government’s case. United States v. Wingate, 520 F.2d 309 (2nd Cir. 1975).
(7) Redacted statements were allowed pursuant to the court’s interpretation of Federal Rule of Criminal Procedure 14 in Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969).
(8) The defendant’s rights were violated where the “jury is highly likely to infer that the defendant is a nameless individual incriminated by the statement.” State v. Williams, 27 Ariz. App. 279, 287, 554 P.2d 646 (1976).
(9) The admission of a redacted statement which did not mention the complaining defendant was proper pursuant to North Carolina statute G.S. 15A-927(c)(l)(b). State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978).
(10) The admission of a redacted statement was improper because the statement, while excluding names, implied that the complaining defendant who was admittedly present during the crime inflicted the more serious blows to the victim. Mathews v. State, 353 So. 2d 1274 (Fla. App. 1978).
(11) The admission of redacted statements constituted a Bruton violation, but the error was harmless in the light of the overwhelming independent evidence against the complaining defendants. Note the Florida court’s discussion of the inconsistent rationale in State v. Williams and United States v. Wingate, regarding whether a redacted statement is to be judged alone or in conjunction with other evidence presented at trial. Cook v. State, 353 So. 2d 911 (Fla. App. 1977).
Redaction of a codefendant’s statement is also the subject of an extensive annotation, Confrontation Clause - Bruton Rule, 29 L.Ed.2d 931,991. The collection of cases generally falls in one of three catagories: (1) no error in admitting the statement; (2) error, but harmless in light of either the impact of the statement itself or in light of the overwhelming evidence against the defendant; (3) reversible error.
Applying the law gleaned from the foregoing authorities, it is clear the introduction of Hutchison’s and Purdy’s redacted statements was not error pursuant to Bruton. We do not agree with Purdy’s objection that the meaning of his own statement was substantially changed by the process of redaction. We have been furnished with copies of both the original statements and the redacted versions in the record on appeal. Those statements have been examined and compared and the meaning is not distorted. This case is similar to the facts and circumstances present in United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970). In that case, each defendant’s confession implicated the codefendant and redacted versions of .each confession were, therefore, introduced into evidence. Defendants alleged on appeal that they were entitled to have the entire confessions introduced into evidence, rather than selected portions. Defendant Smith alleged the trial court erred in admitting a “highly concentrated and out-of-context synopsis, which was not fairly representative of what he had said.” United States v. Kershner, 432 F.2d at 1069. The court held that unless the redaction procedure “distorts a confession, it may be used because it does not violate any constitutional right of the defendant to be confronted with the witnesses against him.” Kershner at 1071. As in the case at bar, the court in Kershner had copies of the full, written confessions made by each defendant as well as the redacted versions. They were able to review the excision procedure and found no distortions of meaning. The procedure was approved and the convictions affirmed.
In addition, we do not agree that the introduction into evidence of the redacted version of codefendant Hutchison’s statement constituted error pursuant to Bruton. Hutchison’s statement does not mention Purdy, nor does it state anything that might refer to him. The jury was not made aware that the statements had been redacted. The trial court gave an instruction to the jury limiting the use of each confession to the defendant who gave it, and the jury’s verdict indicated that instruction was followed. Finally, the case presents a special set of circumstances not found in most of the foregoing cited authorities. Allegations of a Bruton violation arise more often where one defendant confesses and, in the process, implicates his codefendant, who has not confessed. Here, as in Kershner, both defendants gave statements to police. We have examined those statements in their original and redacted form and find they are almost identical. The recitation of events and persons present on the night in question is the same in each statement, making them interlocking confessions. Additionally, while Nadine Schoenhoff could not identify the men who broke into the house the night of the murder, her testimony directly corresponds with the statements of Purdy and Hutchison as to the sequence of events which occurred that night. The redaction process did not distort the meaning of Purdy’s statement, and we hold the introduction into evidence of the redacted version of Hutchison’s statement did not constitute a violation of Bruton.
Appellant’s next point challenges the jurisdiction of the district court, alleging he should have been tried pursuant to juvenile court jurisdiction. This issue was previously tried and affirmed on appeal to the Court of Appeals and it will not be re-examined in this appeal. In re Purdy, (unpublished opinion) 3 Kan. App. 2d xiii (1979). See State v. Hutchison, 228 Kan. at 285. The point is without merit.
Purdy next argues the trial court erred in preventing defense counsel from cross-examining the court reporters who read the redacted statements into evidence. The court reporters had no knowledge or information about the statements; their duty was merely to mechanically read the material furnished to them. Appellant cross-examined the officers who laid the foundation for the reading of the statements. Cross-examination of the court reporters regarding their knowledge of the statements would have proved fruitless. The scope of cross-examination lies within the discretion of the trial court (Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 [1979]; State v. Nixon, 223 Kan. 788, 576 P.2d 644 [1978]; State v. Hutchison, 222 Kan. 365, 564 P.2d 545 [1977]; State v. Woods, 218 Kan. 163, 542 P.2d 319 [1975]), and we find no abuse of discretion.
Appellant next contends the trial court should have given instructions on the lesser included offenses within first degree murder and on self-defense. K.S.A. 21-3107(3) states:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced even though such instructions have not been requested or have been objected to.”
This court stated in State v. Prince, 227 Kan. 137, 140, 605 P.2d 563 (1980):
“The court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime. [Citation omitted.] The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction on the lesser charge.”
in State v. Sullivan & Sullivan, 224 Kan. 110, this court was faced with a similar allegation. The rule regarding instructions of lesser degrees of murder was taken from State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977), as follows:
“Normally, a trial court is required to give a full range of lesser included offense instructions; however, when a murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. [Citations omitted.] If a murder is committed during the perpetration of a felony, the felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder.”
See also State v. Reed, 214 Kan. 562, 564, 520 P.2d 1314 (1974).
In Sullivan & Sullivan we applied the exception to that rule which requires instructions on lesser degrees of murder when the evidence of the underlying felony is weak or inconclusive. In this case, however, the evidence of an underlying felony is conclusive. The defendants were, by their own admission, inside the house in the process of committing a burglary when the homicide occurred. Applying the rule set forth in Sullivan & Sullivan, it is clear the trial court did not err in refusing to give instructions on lesser degrees of first degree murder.
The defendant contends an instruction on self-defense should have been given the jury. The justifiable use of force is statutorily authorized by K.S.A. 21-3211 through -3214. K.S.A. 21-3211 allows the use of force against an aggressor in defense of a person. K.S.A. 21-3214(1), however, does not allow the use of such force by a person who: “[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.” The defense of self-defense is not available to the defendant in this case because he committed a forcible felony. See State v. Marks, 226 Kan. 704, 712, 602 P.2d 1344 (1979). See generally State v. Booker, 200 Kan. 166, 434 P.2d 801 (1967), cert. denied 391 U.S. 965 (1968); State v. Pfeifer, 143 Kan. 536, 56 P.2d 442 (1936); State v. Schroeder, 103 Kan. 770, 176 Pac. 659 (1918); 40 Am. Jur. 2d, Homicide §§ 140-143, 145, pp. 430-434.
Purdy argues the trial court erred in refusing to suppress his confession. He claims he requested an attorney and that request was ignored, although he admits he stated to the police he understood the Miranda warning and expressly waived his rights thereunder. John Purdy was 16 years of age when he committed this offense. In Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964), the United States Supreme Court ruled that a proper determination of the voluntariness of a confession must be made prior to its admission into evidence. In this case a hearing was held and the trial court determined the confession was voluntary. Does the defendant’s age affect that determination? In State v. Cross, 223 Kan. 803, 806, 576 P.2d 698 (1978), we stated:
“A confession is not inadmissible merely because the person making it is a juvenile. [Citations omitted.] This court has also said that a determination of whether a confession of a juvenile was freely and voluntarily given is to be based upon a consideration of the totality of the circumstances. [Citation omitted.]
“ . . The age of the juvenile, the length of the questioning, the juvenile’s education, the juvenile’s prior experience with the police, and the juvenile’s mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile’s confession into evidence.’ State v. Young, 220 Kan. 541, Syl. ¶ 2, 552 P.2d 905 (1976).
“Confessions or admissions voluntarily made are not inadmissible because made at a time when the accused in a criminal action did not have counsel.”
See In re Edwards, 227 Kan. 723, 608 P.2d 1006 (1980); State v. Young, 220 Kan. 541, 552 P.2d 905 (1976). The record indicates the court applied the proper test to the facts in this case and was justified in finding the confession voluntary.
Finally, defendant argues the court erred in sentencing him under the firearm statute, K.S.A. 1978 Supp. 21-4618, because the law was amended to exclude minors from its provisions, effective July 1, 1979. The mandatory sentencing provisions were applicable to this defendant at the time the offenses were committed and defendant was sentenced on May 11, 1979. Defendant contends had he been sentenced after July 1, 1979, the mandatory firearms statute would not have applied. He argues the new provision should be retroactively applied. This argument is extensively discussed in State v. Hutchison, 228 Kan. at 287, wherein we hold retroactive application of the amendment would violate the statute’s terms. We find no merit to this issue.
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The opinion of the court was delivered by
McFarland, J.:
On April 11, 1974, the defendant Board of County Commissioners, upon recommendation of defendant Zoning Board for Aubry Township, rezoned a portion of the plaintiffs’ property from retail business/light industry to residential. Plaintiffs objected to the zoning change and on October 8, 1974, commenced this action challenging the reasonableness of the zoning change.
On June 16, 1975, the district court dismissed the action on the ground that it was an attempted appeal pursuant to K.S.A. 60-2101(a) [Corrick] (now K.S.A. 1979 Supp. 60-2101[d]) and had not been filed within the statutory 30-day period. On June 23, 1975, plaintiffs filed a motion to reconsider and to reinstate the action. Said motion was overruled on April 20, 1976. On May 4, 1976, plaintiffs filed their notice of appeal seeking appellate review.
Two years and fifteen extensions of time for reproduction of the record later, plaintiffs requested and received permission to proceed without a printed record. The sole issue presented to the Court of Appeals was whether or not judicial review had been timely sought. The plaintiffs contend the action was an independent action pursuant to K.S.A. 19-2913, and not subject to the 30-day limitation for the filing of appeals pursuant to K.S.A. 19-223 and K.S.A. 60-2101. The Court of Appeals held that actions pursuant to K.S.A. 19-2913 are independent actions subject to the five-year statute of limitations set forth in K.S.A. 60-511(5). Bolser v. Zoning Board for Aubry Township, 4 Kan. App. 2d 288, 605 P.2d 156 (1980). The matter is before this court on petition for review filed by defendants.
In addition to the issue relative to the timeliness of seeking judicial review in the district court, a second issue is raised before this court, relative to whether the appeal to the Court of Appeals was timely commenced. Although not previously raised, we will consider this issue since it is a challenge to appellate jurisdiction.
Defendants contend the plaintiffs’ motion to reconsider and reinstate is not one of the motions enumerated in K.S.A. 60-2103 [Corrick] (since amended), and hence it did not toll the running of the time for appeal. K.S.A. 60-2103 [Corrick], in effect at the time involved herein, provided in relevant part:
“(a) When and how taken. When an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by section 60-258, except that in any action in which the state, or an officer or agency thereof, is a party the time as to all parties shall be sixty (60) days from such entry, and except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under section 60-250(fc); or granting or denying a motion under section 60-252(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under section 60-259 to alter or amend the judgment; or denying a motion for new trial under section 60-259.”
The motion requested reconsideration of the dismissal of the action. Looking through form to substance we conclude it was the equivalent of a motion for a new trial. The notice of appeal was filed within thirty days after the motion was denied. We conclude the appeal from the judgment of the district court was timely commenced. See Loose v. Brubacher, 219 Kan. 727, 729, 549 P.2d 991 (1976); Heim v. Werth, 214 Kan. 855, 857, 522 P.2d 389 (1974); Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922 (1966).
We turn now to the principal issue involved herein. Did the district court err in dismissing plaintiffs’ action on the ground that it was not filed within thirty days after defendant Board of County Commissioners approved the zoning change?
The statutes involved are:
“19-2913. Reasonableness; action to determine. That any and all acts and regulations provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act or regulation determined by bringing an action against the county commissioners in the district court in the county in which any such township is situated.”
“19-223. Appeals to district court; notice; bond. Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
“60-2101 [1979 Supp.]. Appellate jurisdiction of court of appeals and supreme court; administrative appeals to district court.
“(d) A judgment rendered or final order made by an administrative board or officer 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 aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.” [Formerly K.S.A. 60-2101(a) (Corrick).]
“60-511. Actions limited to five years. The following actions shall be brought within five (5) years:
“(5) An action for relief, other than the recovery of real property not provided for in this article.”
In summary, the district court held that K.S.A. 19-2913 did not authorize aggrieved persons in zoning disputes to bring an independent action with an unlimited time for so doing. The district court reasoned that, in construing K.S.A. 19-2913, 19-223, and K.S.A. 60-2101(a) [now K.S.A. 1979 Supp. 60-2101(d)] together, the legislature intended that there be a 30-day period for seeking judicial review of such matters. The Court of Appeals held that K.S.A. 19-2913 authorized the bringing of an independent action with a 5-year statute of limitations pursuant to K.S.A. 60-511(5).
K.S.A. 19-2913, K.S.A. 19-2926, and K.S.A. 12-712, applicable to zoning acts of townships, counties, and cities, respectively, are virtually identical and, over the years, have been the vehicles for many appeals to this court. None of the prior cases deal with the time for maintaining such actions. This court has previously attempted to determine the nature of actions under such statutes for evidentiary purposes.
In West v. City of Wichita, 118 Kan. 265, 268, 234 Pac. 978 (1925), this court stated:
“In deciding the case the court construed section R.S. 13-1106, which reads as follows:
“ ‘That any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city,’ and held that this statute, as far as it relates to the reasonableness of specific provisions of zoning ordinances, abrogates the general rule that ordinances of the city are presumed to be reasonable, and before a court should hold otherwise their unreasonableness should be established by clear and positive evidence, and has the effect of placing the person having an interest in the property affected upon an equal standing with the city upon the question of the reasonableness of the provisions in question of the ordinance. We construe this section of the statute as giving to any taxpayer or any other person having an interest in property affected a right to bring a suit in the district court to test the reasonableness of the ordinance or any specific provisions thereof which affects his particular property in the use he desires to make of it; that is, the suit does not have to be brought by the state on the relation of the county attorney or attorney-general, and the forum in which to bring the suit is made definite, but it may be doubted whether it in any way affects the question of the burden of proof. In any event, the person bringing such action is a plaintiff and has the ordinary burden of establishing his cause of action by preponderance of the evidence. Before a court should set aside a specific provision of the ordinance, it should be made to appear affirmatively that it is unreasonable when applied to plaintiff’s property and the specific use which plaintiff desires to make of it.”
The above statement lends support to plaintiffs’ position. Over the years, however, a different interpretation has evolved. In Keeney v. City of Overland. Park, 203 Kan. 389, 392-93, 454 P.2d 456 (1969), this court stated:
“Plaintiffs’ contention the trial court misconstrued our decision in Bodine v. City of Overland Park, supra, [198 Kan. 371, 424 P.2d 513 (1967)] with respect to what evidence may be considered in an action of this nature is well founded. In Bodine we said:
“ ‘. . . The statutory proceeding authorized by 12-712, supra, (and 19-2913, supra) is neither a trial de novo nor an appeal in the true sense of the word. When the trial court hears evidence anew in a case of this character, the proceeding resembles a trial de novo, but there the semblance ends.
“ ‘It is to be noted the statutes.(12-712, supra, and 19-2913, supra) do not set out the procedure to be used in the district court in proceedings of this nature. In Appleby v. Board of County Commissioners, 166 Kan. 494, 203 P.2d 224, the court recognized this fact and held that the trial procedure is governed by our code of civil procedure; that the defendants may defend the action, demur to the plaintiffs’ evidence and appeal if the demurrer is overruled. While the Appleby decision was made prior to the adoption of our new code of civil procedure the basic rule must be the same. In other words, in the instant case the proceeding was to be conducted in accordance with the new code of civil procedure which became effective January 1, 1964. Incorporated therein is Article 4 — Rules of Evidence. (K.S.A. 60-401 to 60-470, inclusive.) Thus, the reasonableness of the action taken by the governing body of the city of Overland Park in denying the appellees’ R-4 garden apartment zoning application should be determined from the issues made up by the pleadings and the evidence submitted thereon in accordance with the rules of evidence. (See, Hillebrand v. Board of County Commissioners, 180 Kan. 348, 350, 305 P.2d 517.)’ (Emphasis added.) (pp. 385, 386.)
“Although we said that the proceeding in district court bears some semblance of a trial de novo, we cautioned that the power of the court is limited to determining (a) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed; and (b) the reasonableness of such action. With respect to the question of reasonableness, the court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. The presumption exists that the governing body acted reasonably, and it is incumbent upon those attacking its action to show the unreasonableness thereof. (Also, see, Arkenberg v. City of Topeka, 197 Kan. 731, 421 P.2d 213; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261; Konitz v. Board of County Commissioners, 180 Kan. 230, 303 P.2d 180.)
“The city governing body in Bodine, unlike here, made no record of the hearing which it conducted upon the zoning application. The district court heard evidence as if the case were presented as a trial de novo upon the issues framed by the pleadings.
“Since Bodine we have had further occasion to reemphasize the limitations upon the power of the district court to review by a trial de novo the decisions of administrative bodies. (Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239; Lauber v. Firemen’s Relief Association, 202 Kan. 564, 451 P.2d 488; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828.)
“In Rydd v. State Board of Health, supra, we had before us the provisions of K.S.A. 65-504 wherein an applicant or licensee aggrieved by the order of the board in denying or revoking a license may seek judicial review in the district court on the limited question of whether or not the order was arbitrary, unlawful or unreasonable. The statute provides that ‘Such an appeal shall be tried de novo and the court shall receive and consider any pertinent evidence, oral or documentary, concerning the order of the board from which the appeal is taken.’ In the opinion we stated:
“ ‘It is true the appeal statute here (65-504) provides for trial de novo; however, as in Foote, the statute is to be construed in the light of the constitutional inhibition prescribed by the separation of powers doctrine. This means the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.’ ”
In Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 865, 518 P.2d 410 (1974), this court stated:
“The review proceedings authorized by K.S.A. 12-712 relate to actions of an administrative body and the statutory issue to be determined is the reasonableness of the ordinance or of the action of said body under the ordinance or regulation. The mark of unreasonable action as contemplated in K.S.A. 12-712 is when the action is so arbitrary it can be said it was taken without regard to the benefit or harm involved to the community at large including all interested parties and was so wide of the mark its unreasonableness lies outside the realm of fair debate. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show unreasonableness. The reviewing court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable unless clearly compelled to do so by the evidence.”
Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978), held:
“A city, in enacting a general zoning ordinance, or a planning commission, in exercising its primary and principal function under K.S.A. 12-704 in adopting and in annually reviewing a comprehensive plan for development of a city, is exercising strictly legislative functions. When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. While policy is involved, such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues.”
This evolutionary process has resulted in zoning disputes arising from the zoning of particular tracts being considered quasi-judicial decisions which are subject to judicial review under the same rules applicable to appeals from decisions of administrative agencies while operating in a quasi-judicial capacity.
Increasingly, judicial review of zoning disputes relative to particular tracts has been treated the same as, and referred to as, zoning appeals. For an example thereof, see International Villages, Inc., of Amer. v. Board of Comm’rs of Jefferson County, 224 Kan. 654, 585 P.2d 999 (1978).
The Court of appeals handed down its decision in this case on January 18, 1980. In direct response thereto, the 1980 Kansas legislature enacted Senate Bill 699 which provides:
“SENATE BILL No. 699
“AN ACT relating to zoning in cities and counties; concerning the time limits for filing of appeals from zoning decisions; amending K.S.A. 12-712, 19-2913 and 19-2926, and repealing the existing sections.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. K.S.A. 12-712 is hereby amended to read as follows: 12-712. Any ordinance or regulation or amendment thereto provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance, regulation or amendment thereto determined by bringing an action against the governing body of the city within thirty days after the making of a decision on a zoning ordinance or regulation, or amendment thereto, by such governing body. Such action shall be brought in the district court of the county in which such city is situated.
“Sec. 2. K.S.A. 19-2913 is hereby amended to read as follows: 19-2913. Any and all acts and regulations or amendments thereto provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners within thirty days after the making of a decision on a zoning regulation, or amendment thereto. Such action shall be brought in the district court in the county in which any such township is situated.
“Sec. 3. K.S.A. 19-2926 is hereby amended to read as follows: 19-2926. Any and all acts and regulations or amendments thereto provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners within thirty days after the making of a decision on a zoning regulation, or amendment thereto. Such action shall be brought in the district court of the county.” [Emphasis indicates change in existing statutes.]
While not legally an expression of legislative intent, the following excerpt from the Legislative Research Department’s note on Senate Rill 699 reflects legislative awareness of the Court of Appeals decision herein:
“The Senate Committee amendments (formerly contained in S.B. 792) are in response to a recent Kansas Court of Appeals decision (Bolser v. Zoning Board of Aubry Township, No. 50,269, Kansas Court of Appeals). The court held that an action under K.S.A. 19-2913 is an independent action not subject to the 30-day time limits established in K.S.A. 19-223 and K.S.A. 1979 Supp. 60-2101(d). (K.S.A. 19-223 requires any person aggrieved by any decision of the board of county commissioners to appeal to the district court within 30 days. K.S.A. 1979 Supp. 60-2101(d) requires any person appealing a judgment or final order by an administrative board or officer exercising judicial or quasi-judicial functions must do so within 30 days of the decision.) The court held that the five-year statute of limitations under K.S.A. 60-511(5)- — the limitations of actions article of the Kansas Code of Civil Procedures applied.
“The Bolser decision only deals with appeals regarding the reasonableness of decisions of township zoning boards. Presumably, however, the court would rule the same way in regard to challenges as to the reasonableness of zoning decisions of cities and counties also.”
K.S.A. 19-223, the general appeals statute from decisions of boards of county commissioners, was enacted in 1868. K.S.A. 19-2913 was enacted in 1939. In so doing, did the 1939 legislature intend to create a new independent cause of action with an attendant lengthy statute of limitations for persons aggrieved by zoning acts and regulations? We think not.
In our present-day society, zoning limitations on the use of real property are established and accepted facts of life. It is easy to forget that zoning represents a major inroad on the right to own and use property. To zone is to limit usage — to take something away from the individual owner’s rights to his property in the name of the common good. The votes of two members of a board of county commissioners can substantially affect a landowner’s use of his property. The concept and operation of zoning could justifiably warrant concern in the Kansas citizenry.
K.S.A. 19-2913 speaks of “acts and regulations”; whereas, K.S.A. 19-223 speaks of “decision.” The two statutes must be considered in para materia. We conclude that the purpose of K.S.A. 19-2913 (and comparable provisions of other previously referred-to zoning acts) was to assure the availability of judicial review for reasonableness of all zoning actions taken by a board of county commissioners, whether decisions, acts, or regulations. The inclusion of such provisions was intended to assuage citizen concerns by the assurance that unreasonable zoning could be judicially reviewed and corrected. K.S.A. 19-2913 is a reaffirmation of the pre-existing right to judicial review by appeal, contained in K.S.A. 19-223 and expanded to include all zoning acts and regulations, with reasonableness being specifically set forth as the test to be applied. K.S.A. 19-2913, accordingly, does not create an independent cause of action. The time limitation for seeking judicial review pursuant to K.S.A. 19-2913 is the 30-day limitation fixed by K.S.A. 19-223. Such result is consistent with the procedures generally afforded in Kansas for judicial review of administrative decisions.
This result is further buttressed by recognition of the practical need for a short period of time in which to seek judicial review from adverse zoning decisions and acts. If challenges to zoning could be made anytime within a five-year period, the development and sale of property would be stymied. Frequently, contracts for sale of real estate are conditioned on the present owner obtaining a zoning change. If such zoning changes were secured, but subject to challenge for five years, chaos would result. Construction of apartments, shopping centers, warehouses, etc., could not be expected to await the running of the five-year period. A lengthy statute of limitations is particularly a problem in zoning matters where one’s “adversary” could be any one of several landowners whose opposition may or may not have surfaced prior to the commencement of the action.
Further, a judicial determination as to the reasonableness of the act or decision of a governing body or administrative agency presupposes that such determination will be reasonably contemporaneous with the complained-of act or decision. This is particularly true of zoning matters where the facts to be considered are not fixed in time, but involve ever-changing factors such as surrounding land usage, community resources, streets, traffic patterns, sewers, police and fire protection, schools, population, etc.
The district court correctly concluded that the action herein was not timely commenced and dismissed the action. In so doing the court incorrectly relied on K.S.A. 60-2101(a) (Corrick) (now K.S.A. 1979 Supp. 60-2101[d]); whereas, the time for seeking judicial review herein is fixed by K.S.A. 19-223. Each statute has a 30-day time limitation. Having reached the right result, the district court must be affirmed.
Plaintiffs herein are not without remedy. If they desire to pursue the matter further they may make application for a zoning change. If granted, they have their relief. If denied, the reasonableness of the denial may be judicially reviewed based on more current facts and circumstances.
The judgment of the Court of Appeals is reversed and judgment of the district court is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
The City of Manhattan instituted proceedings in eminent domain for a total taking of a 71.43-acre tract of land for airport expansion purposes. Thomas Sign Service leases, for sign purposes, a 50-foot by 2,300-foot strip of the tract adjacent to the Kansas Highway 18 right-of-way. The appraisers’ report found the total value of the tract to be $258,650 and, in an advisory report, stated that $21,000 of said value was attributed to the signs. The City and the landowners, Rex J. and Emma J. Kent, appealed to the district court.
A dispute arose in district court as to the proper extent of the lessee’s participation in the upcoming jury trial. The City maintains: (1) Lessee has no right to participate in the jury trial wherein the fair market value of the land as a unit is determined; and (2) the lessee could only participate in a post-trial proceeding pursuant to K.S.A. 26-517 for division of the award. The landowners and lessee maintain: (1) Lessee has the right to unlimited participation as a separate party thereto; (2) lessee is entitled to introduce evidence as to the specific dollar value of its leasehold interest; (3) the jury should be instructed to determine the value of the leasehold, separate and distinct from the value of the unencumbered whole; and (4) any limitation on the lessee’s participation at trial would deny it due process of law.
The district court determined that the lessee would be afforded limited participation at trial and set guidelines for the lessee’s participation. The court held inter alia that evidence could not be admitted concerning the specific value of the leasehold interest and that the leasehold interest could only be considered as a factor in arriving at the fair market value of the tract.
The condemner, landowners, and lessee were dissatisfied with the interlocutory order and this appeal was duly perfected pursuant to K.S.A. 60-2102(b). The case before us is on transfer from the Court of Appeals. Inasmuch as the landowners and the lessee have identical positions on the single issue on appeal, for simplification we will henceforth refer only to the lessee.
The sole issue on appeal is the propriety of the district court’s determination of the extent of the lessee’s participation in the jury trial, including the exclusion of evidence as to the specific value of the leasehold interest.
The appealed-from interlocutory order provides:
“By means of clarification, the landowner and lessee will be at counsel table together and the landowner will conduct the trial in all respects except when the lessee desires to clarify a point directly or otherwise participate directly to protect the lessee’s interest.
“Inasmuch as the landowner and the lessee have a common interest as owners in the tract at this stage of the proceedings, to wit: a desire for the highest award possible, I feel it would be prejudicial to the condemner to be limited to three value witnesses and give the landowner and lessee more than three value wit nesses. Therefore, the landowner and the lessee are hereby limited to a total of three value witnesses each plus, of course, the landowner himself who generally may testify as to value. The landowner and lessee must ascertain among themselves which three value witnesses will be used. Because of the common goal for a maximum award, I do not foresee any dispute in this regard. If one arises, it should be taken up with the Court prior to trial.
“The lessee will be allowed to ask questions on voir dire if necessary but pursuant to K.S.A. 60-247(c), in the discretion of the Court, additional peremptory challenges may or may not be allowed.
“The lessee may present separate evidence of its own, may make objections and may argue to the jury, if relevant, if not cumulative or repetitious of the landowner’s evidence or cross-examination and if necessary to protect the lessee’s interest.
“When appropriate under the general guidelines heretofore set forth, the lessee may directly examine the landowner’s witnesses and may cross-examine the condemner’s witnesses.
“The lessee’s direct participation in the trial will only be necessary when the landowner and the lessee cannot agree on the joint presentation of evidence and cross-examination.
“Evidence will not be allowed concerning the specific value of the leasehold interest. It may be considered as a factor only in arriving at the market value of the tract at the time of taking.
“Other procedural questions will be disposed of as they might arise.”
Without burdening this opinion with an exhaustive review of the law of eminent domain, some basic principles need to be stated.
A person may not be deprived of his property without due process of law. If his property is taken by exercise of the power of eminent domain, the procedure must be adequate to provide just compensation. Within these boundaries the legislature may determine the mode of exercising the right of eminent domain. These concepts were expressed in 27 Am. Jur. 2d, Eminent Domain § 376, pp. 241-243, in relevant part as follows:
“Inasmuch as both federal and state constitutions protect all persons from being deprived of their property without due process of law and warrant the equal protection of the law, proceedings to condemn property must be such as not to violate these guaranties. But in the absence of any provision in the organic law prescribing a contrary course, the mode of exercising the right of eminent domain is within the discretion of the legislature. In other words, the mode of exercising the right of eminent domain is generally legislative. The due process clause does not guarantee to the citizen of a state any particular form or method of state procedure nor a right to trial by jury. Its requirements are satisfied if he has reasonable notice and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. In condemnation proceedings as in lawsuits generally, the Fourteenth Amendment is not a guaranty that a trial shall be devoid of error. To bring about a taking without due process of law by force of such a judgment, the error must be gross and obvious, coming close to the boundary of arbitrary action. Nor does the equal protection clause exact uniformity of procedure. The legislature may classify litigation and adopt one type of procedure for one class and a different type for another. That condemnation proceedings are conducted on behalf of the state is in itself sufficient basis for the exercise of legislative judgment in providing for it a different procedure from that prescribed for the exercise of eminent domain by a corporation. Alternative procedures for condemnation may be prescribed by the legislature, provided each procedure satisfies the demands of due process and equal protection, even though the election as to which procedure is to be used is in the condemnor only.
“In any event, however, the procedure must be adequate to provide just compensation.”
A lessee is an owner of the property and is entitled to just compensation if his leasehold is damaged from the exercise of eminent domain. Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P.2d 539 (1958). See also eminent domain procedure act, K.S.A. 26-501 et seq., which speaks of “interest to be taken,” “parties in interest,” “damages to all interest [interests],” etc.
The states have developed a variety of procedures to determine just compensation to the owners of various interests in one tract of land. See Annot., Condemnation Proceedings — Bifurcated Trial, 94 A.L.R. 3d 696, which discusses the various means employed. Some states have procedures for determining the total value and the value of separate interests, all in one proceeding. Others separate the determination of total value from the determination of damages to particular interests in accordance with procedures prescribed by statute or judicial construction.
Statutorily, Kansas has a bifurcated procedure. K.S.A. 26-508 provides:
“If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, he may, within thirty (30) days after the filing of the appraisers’ report, appeal from the award by filing a written notice of appeal with the clerk of the district court. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three (3) days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interest [interests] in the tract before the court for trial de novo. The appeal shall be docketed as a civil action and tried as any other civil action: Provided, however, The only issue to be determined therein shall be that of just compensation to be paid for the land or right therein taken at the time of the taking and for any other damages allowable by law.”
K.S.A. 26-513(d) provides in relevant part:
“(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist but they are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section:”
K.S.A. 26-517 provides:
“In any action involving the condemnation of real property in which there is a dispute among the parties in interest as to the division of the amount of the appraisers’ award or the amount of the final judgment, the district court shall, upon motion by any such party in interest, determine the final distribution of the amount of the appraisers’ award or the amount of the final judgment.”
When K.S.A. 26-508 speaks of just compensation for the land or right therein taken it is referring to what the condemner is taking — the fee or a lesser taking, such as an easement.
Urban Renewal Agency v. Naegele Outdoor Advertising Co., 208 Kan. 210, 214, 491 P.2d 886 (1971), discussed at some length the nature of division proceedings authorized by K.S.A. 26-517. The court stated:
“This 1969 enactment [K.S.A. 26-517] plainly authorized the district court to act as a forum for the resolution of disputes among the parties in interest as to the division of the amount of an award, either as made by the appraisers or upon final judgment after appeal. The determination of such disputes is judicial work, adversary in nature, as contrasted with the usual type of inquest or inquisition where the inquiry is largely or wholly in a nonadversary setting. We think the rule announced in Decker [197 Kan. 157, 415 P.2d 373 (1966)] and like cases inapplicable to a proceeding authorized by 26-517 of our eminent domain procedure act. Accordingly, we hold that the function placed upon a district court in determining final distribution of the appraisers’ award in an eminent domain proceeding is judicial in nature so that an appeal lies to this court from the action taken.”
The court in Naegele reaffirmed both the right of a tenant to share in the award if damaged by the exercise of eminent domain and the following statement from Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 247, 468 P.2d 95 (1970):
“It has long been the rule that where leased property is taken by eminent domain, it is ordinarily valued as though held in a single ownership rather than by separately valuing the interests of the lessor and lessee, and the compensation for the property taken or damaged is apportioned by the district court between the lessor and lessee according to their respective interests. The condemner has no interest in the apportionment proceedings. It has met its obligation when it has paid into court the total amount of the award. (29A C.J.S., Eminent Domain, § 198, p. 873.)”
The citation from Phillips is a recognition of the undivided fee rule discussed in 4 Nichols on Eminent Domain § 12.36 [1], pp. 685-687 (3d ed. 1979), as follows:
“It was formerly one of the most firmly established principles of eminent domain, and it is still the law in the usual case, that when a tract of land is taken by eminent domain, as the land itself is taken by a paramount title rather than the separate estates of different persons having interests in the land, the compensation awarded is for the land itself and not for the sum of the different interests therein. The duty of the public to make payment for the property which it has taken is not affected by the nature of the title or by the diversity of interests in the property. The public pays what the land is worth, and the amount so paid is to be divided among the various claimants, according to the nature of their respective estates.”
In Montgomery Ward v. Sterling, 185 Colo. 238, 523 P.2d 465 (1974), the Colorado Supreme Court, in affirming a slight variation of the undivided fee rule, noted two advantages therein: (1) All condemnees are in a united position of seeking to maximize the total award in the first proceeding and only in the subsequent division proceeding do they become adversaries; and (2) the time lag between determination of award and division provides an opportunity for the owners of interests to settle the division among themselves.
In Rostine v. City of Hutchinson, 219 Kan. 320, 323, 548 P.2d 756 (1976), the court discussed the “unit rule” and the “summation method” relative to determining value as follows:
“To assist the court or jury in ascertaining the amount of damages the legislature has designated fifteen factors to be considered if shown to exist. The statute, however, directs that the factors are not to be considered as separate items of damage, but are only to be considered as they affect the total compensation. (K.S.A. 26-513[d].) This latter requirement is a codification of the rule of law of this state which prohibits the use of the ‘summation method’ of valuation.
“The ‘summation method’ denotes a process of appraisal whereby each of several items that contribute to the value of real estate are valued separately and the total represents the market value thereof. Use of this method of appraisal has generally been rejected since it fails to relate the separate value of the improvements to the total market value of the property. (1 A.L.R. 2d Anno., Eminent Domain — Valuation as Unit, p. 878.) In contrast, the ‘unit rule,’ which is the generally accepted method of valuation, denotes a process of appraisal whereby the total value of real estate is first determined without placing a value on each of the separate contributing items. Consideration of the value of buildings and improvements is limited to the extent they enhance the value of the land taken.”
This court again approved the unit rule in Ellis v. City of Kansas City, 225 Kan. 168, 589 P.2d 552 (1979).
The unit rule as to improvements on the property and the undivided fee rule are consistent with each other and in harmony with the statutory requirement that the initial determination must be confined to the fair market value of the land as a unit at the time of the taking. In unusual circumstances, such as where the fee interest is of lesser value than another interest or aggregate of interests, exceptions to the general rule are sometimes made, but this is not the situation herein.
The interlocutory order herein actually deals with two different areas. The exclusion of evidence as to the specific value of the leasehold, but permitting the leasehold to be considered as a factor in determining the market value of the land, relates to the purpose and scope of the trial. The balance of the order deals with the extent of the lessee’s participation in the trial.
On the rationale hereinbefore expressed we conclude the district court did not err in excluding evidence of the specific value of the leasehold interest but permitting the leasehold interest to be considered as a factor in arriving at the market value of the tract at the time of the taking.
As we have previously determined, Kansas has a bifurcated procedure wherein the total award is made, either based on the appraisers’ report or by court or jury on appeal therefrom. If a dispute arises concerning the division of the total award, the court in a judicial determination pursuant to K.S.A. 26-517 makes the division. In such circumstances a lessee is in a considerably different situation than if total award and the division thereof were to occur in one proceeding. However, inasmuch as the leasehold interest is a factor to be considered in determining the market value of the land, evidence relating to same may properly be presented to the jury. How then is this to be accomplished?
Conduct of condemnation proceedings is discussed in 30 C.J.S., Eminent Domain § 286, pp. 44-45, as follows:
“Jury trials in condemnation proceedings are conducted pursuant to sound legal principles and in accordance with the rules of procedure and evidence, and generally the trial is similar to that of other civil actions. This is particularly true under statutes specifically providing that condemnation proceedings are to be tried as are other causes, since such provisions merely require that the procedure conformed to that followed in other civil actions, except as specific provision is made for a departure therefrom, such as the provision that if a view by the jury is requested by either party it must be granted, as discussed supra § 288.
“It has been said that a condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner, and that the trial of such a proceeding is essentially an informational inquisition in which the boundaries of the inquiry must be liberally intrusted to the sound discretion of the trial judge. Thus, the law allows a trial judge a broad discretion as to the methods that shall be used to accomplish the best results in a jury trial of a condemnation case.
“It is generally recognized that the owner of the property being taken by condemnation is entitled to full and fair judicial proceedings, and while it is desirable, permissible, and essential that the length and expense of such proceedings be minimized, any procedure that is calculated to achieve this end must at the same time guarantee the property owners a fair opportunity to have their compensation determined from the evidence in reasonable proceedings.
“Where a number of condemnees are involved in a proceeding, the rule that the trial judge has broad discretion as to the methods which shall be used to accomplish the best results is particularly applicable; but the discretion of the trial judge in this respect is subject to limitations, and if a lessee is claiming an interest in the property condemned, the trial judge may not, as a matter of discretion, permanently exclude the lessee at the outset of the trial. The trial judge has the right to limit the introduction of cumulative evidence on the question of value, but if the issue is not being adequately presented by an owner, the court may permit a lessee to present such proof. Where several condemnees are each represented by different counsel, the court may properly limit the number of opening and closing statements that may be made, and the trial court need not, as a matter of law, extend to each counsel the privilege of cross-examination.”
The above C.J.S. citation refers to condemnation trials in general, with no distinction being made between all-inclusive proceedings and bifurcated proceedings. Logically, in bifurcated proceedings the trial court should have broader discretion to limit a lessee’s participation in the trial to determine the total award than where all issues will be determined in one trial.
We conclude that in a trial to determine the fair market value of the property taken, a lessee is neither wholly excluded from participation as a matter of the condemner’s right nor entitled to unlimited participation therein as a matter of lessee’s right. The extent of a particular lessee’s participation in the trial is within the broad discretionary power of the court. In making such determination the court should consider the totality of the circumstances. Absent some abuse of that discretion the trial court’s determination will not be disturbed on appeal.
We have carefully reviewed the guidelines set by the district court herein, and find no abuse of discretion under the totality of the circumstances. We note the guidelines are flexible and subject to modification as the need may arise.
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The opinion of the court was delivered by
Fromme, J.:
This appeal comes to us on Petition for Review from the Comí of Appeals. The Court of Appeals affirmed the trial court’s orders which dismissed a third-party claim of the City of Sawyer and Gene Aubley against third-party defendant Continental Research Corporation and a similar claim of Continental against the Huge Company, Inc. Kennedy v. City of Sawyer, 4 Kan. App. 2d 545, 608 P.2d 1379 (1980). The third-party claim was filed in a negligence action.
The negligence action was filed by Paul G. and Alice C. Kennedy against the city and Mr. Aubley, city councilman. The Kennedys owned fifty acres of pasture land adjacent to a 3.7 acre tract owned by the city on which are located sewage lagoons used and maintained for the benefit of the city. The 3.7 acre tract is fenced. The Kennedys had 53 head of cattle in their pasture adjacent to the sewage lagoons. Mr. Aubley, acting on behalf of the city, sprayed a herbicide solution along the fence surrounding the 3.7 acre tract. Three days later on July 20,1975, the Kennedys found in their pasture six dead cattle and many others were sick. Examination of the cattle revealed they were victims of arsenic poisoning. The city’s herbicide solution had been mixed by adding water to a chemical compound of sodium arsenite.
It appears that in 1973 a salesman for Continental Research Corporation examined the sewage lagoon area and recommended a chemical compound “CR-125” for use in weed control around the sewage lagoons. The CR-125 was shipped and received by the city sometime before April, 1974. Continental obtained this product from the Huge Company, Inc., which packaged and labeled it as a private label product of Continental. It was packaged by Huge in a metal drum which bore a use direction and warning label.
The label bore a skull and crossbones with the following warning:
“DANGER:
“DO NOT USE OR STORE IN OR AROUND THE HOME. DO NOT ALLOW DOMESTIC ANIMALS TO GRAZE TREATED AREAS. DO NOT RE-USE EMPTY DRUM. RETURN TO DRUM RECONDITIONER, OR DESTROY BY PERFORATING OR CRUSHING AND BURYING IN A SAFE PLACE.”
The label further set forth the contents and description of the ingredients which were sodium arsenite — 40.0% and inert ingredients — 60.0%. Mixing instructions were given for both weed control and plant growth prevention.
In the petition filed by the Kennedys it was alleged that the city and Mr. Aubley “were negligent in not properly using, supervising the use of, storing and safeguarding the deadly arsenic compound used in the spray mixture herein which caused the Plaintiffs’ loss.” The defendant city and Mr. Aubley answered in part by stating “[plaintiffs’ alleged injuries and damages were proximately caused and contributed to by their own negligence.” It is apparent from these allegations that the action raised issues of both negligence and contributory negligence. The damage to the cattle occurred on or about July 17, 1975. Our comparative negligence statute, K.S.A. 60-258a, became effective July 1, 1974. Comparative negligence was not mentioned by any party in the pleadings or during later arguments on motions.
The defendant city and Mr. Aubley filed a third-party petition bringing Continental Research Corporation into the proceedings. They alleged that the weeds at the site of the city’s sewage lagoons were sprayed by Mr. Aubley with the chemical CR-125; that the Kennedys alleged some of their cattle died and others were injured by ingesting the chemical; that the city and Mr. Aubley denied any liability but in the event it is established they were negligent in any manner so as to be liable to the Kennedys, their negligence was passive and secondary to the negligence of Continental Research Corporation; that Continental’s negligence was active and primary negligence and the proximate and direct cause of the Kennedys’ damages. The city and Mr. Aubley alleged they are entitled to judgment against Continental for all sums for which they may be liable to the Kennedys.
For this alleged liability of Continental the city and Mr. Aubley set forth three theories: (1) negligence in compounding, formulation, manufacture, testing, labeling, research, sale and distribution of CR-125, (2) breach of implied warranties to the city and Mr. Aubley, including warranty of merchantability and warranty of fitness for a particular purpose, and (3) under the doctrine of strict liability in tort the chemical CR-125 was in a defective condition unreasonably dangerous for use when it left the hands of Continental and was shipped to the city. The city and Mr. Aubley prayed for judgment against Continental for all sums for which they might be found liable to the Kennedys.
Continental Research Corporation then filed an answer as third-party defendant denying generally all such allegations of the city. It also filed a petition as third-party plaintiff against the Huge Company, Inc., alleging that Huge manufactured, packaged and labeled the chemical CR-125 for Continental; that in the event Continental is found negligent in any manner for which it would be liable to the city and Mr. Aubley, such negligence was passive and secondary to the negligence of Huge; that the action of Huge was primary negligence and the proximate and direct cause of the Kennedys’ damages; and that Continental is entitled to judgment against Huge for all sums for which Continental may be found liable to the city and Mr. Aubley.
To establish this alleged liability of Huge, Continental set forth the identical theories pled by the city against Continental: (1) common law negligence, (2) breach of implied warranties, and (3) strict liability in tort for sale of a product in a defective condition unreasonably dangerous for use. It concluded with a prayer for judgment against Huge for all sums for which it might be found liable arising out of the matters alleged in the petition of the Kennedy s.
Other parties in the chain of manufacture and distribution of CR-125 were brought into these proceedings but they were later relieved from participation on stipulation. Since the presence of those parties now has no bearing on the issues in this appeal, we see no reason to complicate the facts by further detailing their relationship to other parties in this action.
The parties answered interrogatories. Depositions were taken and then motions for summary judgment and to dismiss Continental and Huge from the lawsuit were filed. The issues were briefed and presented to the trial court. The comparative negligence statute was never mentioned. Comparative negligence principles played no part in the court’s ultimate decision. On October 31, 1977, the court handed down a memorandum opinion followed by a formal journal entry on November 17, 1977. Later, on December 13, 1977, the court amended some of its previous findings of fact and conclusions of law. A notice of appeal from the two memorandum opinions and one journal entry was served on December 16, 1977.
In dismissing Continental and Huge from the proceedings, the trial court made certain findings of fact and refused to make others based upon what were referred to as uncontroverted facts. It found Mr. Aubley’s actions in spraying the CR-125 on plaintiffs’ pasture were negligent as a matter of law. It refused to make any finding as to the adequacy of the label on the CR-125 container, for it said the adequacy of the label did notenter into the court’s decision to dismiss. It found that the defendant Aubley was guilty of active negligence in directing the spray so as to contaminate the pasture belonging to the Kennedys, and that on the basis of Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967), it was impossible for the city to establish a right to indemnity from Continental. It then con- eluded since Continental had no liability to the city for the Kennedys’ damages, Continental had no right to indemnity against Huge. Both Continental and Huge were dismissed from the proceeding. The orders of dismissal were treated by the parties as a final appealable order and as if so declared by the court (see K.S.A. 60-254[b]), even though the Kennedys’ claim was pending. This appeal was taken by the City of Sawyer and Mr. Aubley from the orders of dismissal. The notice of appeal was served December 16, 1977.
So, when the appeal was taken to the Court of Appeals, the comparative negligence of the parties in the action brought by the Kennedys against the city and Mr. Aubley was in issue in that case. The Kennedys had sued to recover damages caused by the negligence of Mr. Aubley and the city. Mr. Aubley and the city in their answer denied negligence on their part and alleged that the damages, if any, were a result of Kennedys’ own negligence. At this same time the city, Mr. Aubley, Continental and Huge had on file third-party pleadings which raised questions as to who should be liable for the Kennedys’ damages in the event recovery was had against the city and Mr. Aubley. This is the usual situation when comparative negligence principles apply. The parties, by oversight, should not be able to circumvent the statute, K.S.A. 60-258a.
While the appeal was pending the City of Sawyer settled the claim of Kennedys for $29,000.00. On January 27, 1978, the trial court entered an order of dismissal of the Kennedys’ claim with prejudice. This was a month after the notice of appeal was filed. The journal entry quoted the following portions of the release by the Kennedys:
“Release and discharge, and by these presents do for plaintiffs, their heirs, executors, administrators, and assigns release and forever discharge the said defendants and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 17th day of July, 1975, near Sawyer, Kansas.
“Plaintiff understands said defendants, by reason of agreeing to this compromise payment, neither admit nor deny liability of any sort, and said defendants have made no agreement or promise to do or omit to do any act or thing not herein set forth and plaintiffs further understand that this release is made as a com promise to avoid expense and to terminate all controversy and/or claims between plaintiffs and defendants for injuries or damages of whatsoever nature, known or unknown, including future developments thereof, in any way growing out of or connected with said accident.” Emphasis supplied.
The appeal by the City of Sawyer and Mr. Aubley came to the Court of Appeals in this posture and on oral argument before the Court of Appeals the applicability of comparative negligence under K.S.A. 60-258a was raised by the Court of Appeals sua sponte. The trial court had dismissed the city’s claim for indemnification based on principles set forth in Russell v. Community Hospital Association, Inc., 199 Kan. 251. The Russell case had been decided in 1967. Comparative negligence did not come into being until July 1, 1974. The active/passive dichotomy used in tort indemnity actions, which was recognized in Russell, has not been examined by this court in the light of the comparative negligence statute. We granted review and the appeal comes to us in this rather awkward position, the claim of the Kennedys having been dismissed after the appeal was taken.
At the outset it is questioned whether the original pleadings would support an action based on strict liability in tort. Our decision in Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), embraced the doctrine of strict liability as set forth in the Restatement (Second) Torts § 402A (1965). The doctrine was applied to a design defect in a safety switch on a gas furnace manufactured by Bryant Air-Conditioning Co., Inc. Injury in such case was not to the homeowner or his family but to a plumber who was preparing to repair the furnace which he had installed seven years before. The Restatement § 402A, pp. 347, 348, specifies that “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property.” Emphasis supplied. Recovery by Brooks was affirmed on the theory of strict liability.
In our present case the city was a user or consumer and there were no injuries to its person or property. The city’s loss or damage, if any, was in the nature of economic loss occasioned to the property of a bystander or third party, the Kennedys. Imposition of liability for foreseeable injury to bystanders or third parties is based on a desire to achieve maximum protection for the injured party and to promote the public interest in discouraging the marketing of products having defects that are a menace to the public. See Annot., 33 A.L.R.3d 415 (1970). Damage to be recoverable by a third party must be foreseeable. Foreseeability is that which is objectively reasonable to expect, not merely that which might conceivably occur. Under the doctrine of strict liability the liability of a manufacturer and those in the chain of distribution extends to those individuals to whom injury from a defective product may reasonably be foreseen, and then only in those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable it may be used. Winnett v. Winnett, 57 Ill. 2d 7, 310 N.E.2d 1 (1974); see also West v. Caterpillar Tractor Company, Inc., 336 So. 2d 80, 89 (Fla. 1976); Darryl v. Ford Motor Company, 440 S.W.2d 630, 633 (Tex. 1969); Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976).
In the present case, because of the dangerous nature of the product and its purpose, the damages were clearly foreseeable and the possibility of damage to grazing livestock was specifically mentioned on the warning label. However, settlement of the claim and dismissal of the Kennedys’ action with prejudice removed the question of liability to the Kennedys, except as it might serve as a possible basis for the indemnity claim by the city, Continental and Huge respectively.
It is further questioned whether the third-party practice pleadings which were filed by the city, Continental and Huge were sufficient in form and content to raise questions of comparative negligence and indemnity. The pleadings were concerned with questions of indemnity in the event the Kennedys recovered for loss and damage to livestock caused by use of the chemical CR-125. K.S.A. 60-258a(c) provides:
“On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.”
No further directions are set forth in the statutes as to what pleadings are required after such a motion has been sustained. Good practice would dictate that the successful movant should file pleadings setting forth the basis for his claim that the other person’s causal negligence contributed to the injury or damage to the plaintiffs. In turn the party brought into the action should file an answer or other pleading. Under third-party practice (K.S.A. 60-214[o]) when a defendant wants to bring in a third party the statute provides:
“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him [the third-party plaintiff] for all or part of plaintiff’s claim against him.” Emphasis supplied.
It is contended the third-party pleadings between the city, Continental and Huge were defective and not sufficient to raise the issue of comparative liability for the Kennedys’ damages. It is argued that to raise comparative negligence the third parties, when brought into the action, would have to respond by answer concerning their degree of liability to the Kennedys, instead of answering a claim for indemnify raised by the City of Sawyer and Mr. Aubley.
Technically this may be correct, but Kansas has adopted notice pleading and it is a rare occurrence when a pleading cannot be corrected by amendment. Amended and supplemental pleadings are to be liberally authorized. See K.S.A. 60-215. When permitted an amendment relates back to the date of the original pleading. A trial court is given broad discretionary power under K.S.A. 60-215 to allow amendment of pleadings, and amendments should be permitted in the interest of justice. Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 92, 484 P.2d 38 (1971); Rinsley v. Frydman, 221 Kan. 297, Syl. ¶ 2, 559 P.2d 334 (1977). This court has gone so far as to permit a party to be brought into proceedings after judgment so as to permit participation in appeal proceedings. See Moyer v. Board of County Commissioners, 197 Kan. 23, 27, 415 P.2d 261 (1966).
In pleading a matter all that is required by the statute to constitute a sufficient claim for relief is to give (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled. K.S.A. 60-208. See Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 7, 612 P.2d 150 (1980). In our present case the parties were brought into the case and the pleadings can be amended at the discretion of the trial court in the interest of justice to cover the issues to be decided.
The parties have fully briefed the questions having to do with comparative negligence and tort indemnity. We have been favored with amici curiae briefs filed with leave by this court by both the Kansas Association of Defense Counsel and Kansas Trial Lawyers Association. We believe it is in the best interests of all concerned to disregard technicalities of pleading and proceed to examine the larger questions which concern the interests of these parties rather than sidestep the issues addressed by the Court of Appeals. The pleadings on file when the present appeal was taken presented questions arising from a products liability action. It was questioned whether comparative negligence principles should be applied to a product strict liability action and whether indemnity might be recovered. With a settlement of the Kennedys’ claim the comparative negligence questions became secondary to the indemnity issue. However, even if it is only a collateral issue, we must determine whether comparative liability principles should apply in products liability actions.
The application of comparative fault principles to product strict liability actions has won the approval of an appreciable number of courts as is illustrated by the list of citations compiled by the Court of Appeals in its opinion in this case. See 4 Kan. App. 2d at 553-554. Application of comparative fault principles to strict liability actions in Kansas was forecast in Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740 (D. Kan. 1978).
An examination of the comparative negligence statute, K.S.A. 60-258a, will indicate the statute refers repeatedly to negligence actions “where the comparative negligence of the parties in any action is an issue.” In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 845, 610 P.2d 1107 (1980), we pointed out the comparative negligence statute applies in those situations where a defendant could have traditionally set up a defense of contributory negligence or an “analogous defense.”
In both strict liability and implied warranty claims the defense of “assumption of risk” is recognized. Brooks v. Dietz, 218 Kan. 698, and Bereman v. Burdolski, 204 Kan. 162, 460 P.2d 567 (1969). In such a context assumption of risk is a contributory negligence concept. Traditionally it is a form of negligence which meets a threshold at which a party’s conduct is considered so culpable as to bar that party from all recovery. Other forms of misconduct have barred recovery under our prior system. Included was “product misuse” or “unreasonable use.” Prentice v. Acme Machine & Supply Co., 226 Kan. 406, 601 P.2d 1093 (1979). These defenses in products liability cases depended on the plaintiff’s conduct. Reasonableness of conduct is a negligence concept.
The city, as appellant, questions whether the action accrued after the comparative negligence statute became effective. The city would have the court find the present cause of action was for a breach of warranty and it accrued at the time the product, CR-125, was sold to the city which was in April of 1974. See K.S.A. 84-2-725(2). It then argues that the comparative negligence statute, K.S.A. 60-258a, was not in effect in April, 1974. It applies only to actions accruing after July 1, 1974. We disagree with this reasoning. This is not a contract warranty case. The action was and is essentially a tort action which accrued when the act giving rise to the cause of action first caused substantial injury. K.S.A. 60-513(b). This was no earlier than July 17, 1975, when the sewage lagoons were sprayed by Mr. Aubley. The comparative negligence statute had become effective a year before.
There are practical considerations which seem to dictate the application of comparative liability principles to products liability cases. In the third-party petitions on file in this case three theories are alleged as a basis for recovery: (1) common law negligence, (2) strict liability, and (3) implied warranty. These are the usual theories asserted in products liability actions. When common law negligence is pleaded, the provisions of K.S.A. 60-258a must be applied to that theory of recovery, and in such case, whenever a negligent defendant is joined with a defendant charged with strict liability, it would seem to be impossible to escape a comparison of negligence as required by the comparative negligence statute. This is true because this would be necessary in order for the trial court to preserve the right of the defendant, against whom only a negligence claim is asserted, to have his exposure to liability reduced proportionately.
The defenses of assumption of risk and product misuse in strict liability actions were recognized by the courts because of a desire to soften the harsh barring effect of traditional rules of contributory negligence upon a plaintiff. The term assumption of risk as used herein refers to the action of a party in exposing himself or herself to a danger after that danger is both known and appreciated. The degree of misconduct necessary to bar a plaintiff’s claim was enlarged in such cases by requiring a greater culpability if the claim were to be barred.
Comparative negligence concepts also came as a result of a desire to soften the “all or nothing” rule of common law contributory negligence. See Stueve v. American Honda Motors Co., Inc., 457 F. Supp. at 751; and Davis, Comparative Negligence — A Look At The New Kansas Statute, 23 Kan. L. Rev. 113,114 (1974).
In this context, strict liability and comparative negligence are akin in that an injured plaintiff need not negate completely his own wrongdoing to recover something in the action. Comparative liability provides a system for allocating responsibility for an injury while still serving the social policy of not allowing a manufacturer or seller to escape liability for defective products merely because of slight culpability on the part of the product user in bringing about the injury. Application of comparative negligence principles to strict liability has found support in Kansas, not only in the Court of Appeals and the United States District Court, but also in the opinions of various legal writers who discussed the advent of comparative negligence in this state. Woods, The New Kansas Comparative Negligence Act — An Idea Whose Time Has Come, 14 Washburn L.J. 1,25 (1975); Schwartz, Comparative Negligence in Kansas — Legal Issues and Probable Answers, 13 Washburn L.J. 397, 412 (1974); Kelly, Comparative Negligence — Kansas, 43 J.B.A.K. 151,199 (1974); and Westerbeke and Meltzer, Comparative Fault and Strict Products Liability in Kansas: Reflections on the Distinction Between Initial Liability and Ultimate Loss Allocation, 28 Kan. L. Rev. 25 (1979).
This court has decided if the rules of comparative liability are applied to cases involving the special duties imposed by law upon product manufacturers, distributors and sellers, there can be an equitable resolution, on the one hand, of the social policy which commands that a manufacturer be deterred from producing defective and dangerous products, and, on the other hand, of the equitable policy enunciated in Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), of assessing proportionate liability based upon comparative degrees of causation.
Much of what has been said in connection with the strict liability theory holds true for a products liability claim based upon implied warranty. The two theories are closely allied. In Brooks v. Dietz, 218 Kan. at 701, it is pointed out liability for damages resulting from putting a dangerously defective product in commercial channels, although predicated on an implied warranty of fitness and sometimes considered a concept peculiar to the law of contracts, is not the result of an express contract when applied in products liability cases. It is imposed in such .cases because of public policy the same as in cases based on other theories of tort liability. Defenses to such claims are usually analogous to contributory negligence and there is a high probability of joining such a claim with one for common law negligence. In the final analysis it must be admitted a products liability action based on implied warranty is more akin to an action in tort than one in contract. The general standards of conduct required are implied irrespective of any particular agreement between the parties, just as in any tort case. The same arguments leading to the conclusion that comparative liability principles should be applied to strict liability actions retain their force and effect when applied to an action based on implied warranty. Although strict liability has served as the battleground in acceptance or rejection of comparative liability in products liability cases, there has been recognition that “comparative implied warranty” is a viable concept as well. Signal Oil & Gas v. Universal Oil Products, 572 S.W.2d 320 (Tex. 1978). In Signal the court observed the requirement of “proximate” causation of injury calls into question the reasonableness of a plaintiff’s use of the product. This may lead to the evaluation of a comparative percentage of causal fault between a warranty plaintiff and a defendant.
In Westerbeke and Meltzer, supra, 28 Kan. L. Rev. at 97, 98, it is stated:
“[T]he conceptual nature of implied warranty does not provide any sound reason for failing to apply comparative fault principles to those implied warranty actions that overlap strict liability actions.”
In the lead comparative negligence case of Brown v. Keill, 224 Kan. 195, it was held the concept of joint and several liability between joint tortfeasors which previously existed in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be entered. Brown v. Keill was a case in which the plaintiff relied only on principles of negligence for recovery. The comparative negligence statute clearly applied.
In Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978), which followed, it was claimed a highway defect contributed to the occurrence from which the injuries and damages arose. It was held the comparative causation or fault of the Department of Transportation for failure to repair arising from a statutory liability was of a nature as to come within the purview of the comparative negligence statute even though the basis for such liability is not generally considered as falling into the category of negligence. A similar holding as to a claimed township highway defect was handed down in Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978).
In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, where it was claimed the defendant was negligent in violating K.S.A. 21-4209, prohibiting sales of explosives to persons under 18 years of age and certain others, and that such negligence caused plaintiff’s injury, it was held the comparative negligence statute, K.S.A. 60-258a, applied. In such case breach of duty, or negligence per se, results from a finding that the criminal statute was violated. The negligence of the child is to be compared with that of the violator of the criminal statute. In Wilson, Thomas and Arredondo, we have considered and applied the comparative negligence statute to occurrences which previously were considered beyond the ordinary tort negligence situation.
After considering the foregoing matters we agree with the Court of Appeals that the doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases.
However, the application of comparative negligence principles to strict liability and implied warranty is a collateral issue in this case, for the plaintiffs-Kennedys did not put forth a claim against Continental or Huge. They sued the city and Mr. Aubley. A decision as to the applicability of comparative negligence principles becomes necessary, however, in considering the active/passive features of the city’s claim for indemnity against Continental.
We further agree with the Court of Appeals that the statutory adoption of comparative negligence in Kansas has had the effect of abrogating the concept of indemnification based on the dichotomy of active/passive negligence as conceptualized in Russell v. Community Hospital Association, Inc., 199 Kan. 251, Syl. ¶ 3. In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, and distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the all or nothing concepts are swept aside.
In our present case the city settled the entire liability for Kennedys’ damages. Contrary to the holding of the Court of Appeals the settlement and release given covers all parties who may have contributed in any way to the damages. The plain and unambiguous wording of the release given by the plaintiffs did:
“[R]elease and forever discharge the said defendants and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 17th day of July, 1975, near Sawyer, Kansas.” Emphasis supplied.
When one considers not only the plain wording of this release and the fact the pending action brought by the Kennedys was dismissed with prejudice there can be little doubt that all third-party defendants were relieved of possible future liability to the Kennedys, along with the city and Mr. Aubley. The holding of the Court of Appeals in Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), upon which the Court of Appeals relied, was based upon a very different type of release. Geier was riding in the Wikel car which struck a freight train. Geier received a settlement from the railway company and executed a release which provided:
“ ‘The release . . . further recited that the accident occurred under circumstances which [Randy Geier and Norman Geier] claim render said Company liable in damages, although such liability is denied by said Company, and [Randy Geier and Norman Geier are] desirous to compromise, adjust and settle the entire matter.’ ” 4 Kan. App. 2d 188.
It was held the release did not inure to the benefit of Wikel since under the plain wording of the release it did not appear there was an intention to release more than the proportionate liability of the railway company. In such case the release did not relate to other possible tortfeasors either by name or by general description, and the intent shown by the wording in the release was to limit the discharge of liability to the railroad.
We conclude that the Court of Appeals misconstrued the effect of the release given by the Kennedys in the present case. The court’s reliance upon the Geier case was misplaced because of the clear difference in the wording of the two release forms and because of the decision we have reached today in the field of indemnity.
In Brown v. Keill, 224 Kan. 195, Syl. ¶¶ 5, 6, we held the concept of joint and several liability between joint tortfeasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer necessary in such cases. We further hold in Broten that the intent and purpose of the legislature in adopting the comparative negligence statute was to impose individual liability for damages based on proportionate fault of all parties to the occurrence which gave rise to the injuries and damages.
It appears somewhat ironical in light of the foregoing expressed intent if, under our indemnity law as it exists, one liable for a proportionate share of liability for an occurrence cannot afford to settle the claim presented in a pending court action before trial and then in turn seek a determination of the reasonableness of the amount of his settlement in light of the damages and a further determination of comparative causal responsibility of other tortfeasors for the amount so determined. Courts have always taken the position that compromise and settlement of disputes between parties should be favored in the law in the absence of fraud or bad faith. Massey-Harris Co. v. Horn, 132 Kan. 206, 294 Pac. 666 (1931); Fieser v. Stinnett, 212 Kan. 26, 509 P.2d 1156 (1973).
Traditional implied indemnity, such as that sought by the city in this case, implies a shifting of 100% of a loss from the indemnitee to the indemnitor. In this respect it is distinguishable from “contribution,” which contemplates a shift of only part of the loss to another. Cullen v. Atchison, T. & S. F. Rly. Co., 211 Kan. 368, 375, 507 P.2d 353 (1973); Prosser, Handbook of the Law of Torts § 51 (4th ed. 1971) at 310. There are two traditional situations in which claims of indemnity have been allowed in Kansas. The first (and more usual, since indemnity is a creature of contract) occurs when there is an express contract of indemnity, such as a “hold harmless” agreement. Bartlett v. Davis Corporation, 219 Kan. 148, 547 P.2d 800 (1976); Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763 (1969). It is the second type of indemnity, implied indemnity, which is at issue in this case. A contract of indemnity may be implied when one is compelled to pay what another party ought to pay. 42 C.J.S., Indemnity § 20; see Chicago City v. Robbins, 67 U.S. 418, 425, 17 L.Ed. 298 (1863). This may arise in a case of implied or constructive liability when one personally without fault is made to pay for the tortious acts of another; liability of a principal in respondeat superior for the acts of an agent or employee provides a good example. See Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277 (10th Cir. 1969); Prickett v. Hawkeye-Security Insurance Company, 282 F.2d 294 (10th Cir. 1960); Fenly v. Revell, 170 Kan. 705, 228 P.2d 905 (1951). However, the present case concerns a variant of the implied indemnity contract as recognized in Kansas when the fault of one defendant may be characterized as “active” and that of the other as “passive.” See Denneler v. Aubel Ditching Service, Inc., 203 Kan. 117, 453 P.2d 88 (1969); Russell v. Community Hospital Association, Inc., 199 Kan. 251.
The development and acceptance of implied indemnity based upon characterizations of “active” and “passive” negligence is evidence of this court’s desire to see that the most culpable party, as between two wrongdoers, bears the ultimate loss. Implied indemnity gave some defendants the means, albeit limited, to avoid the common law ban on contribution among tortfeasors, and has represented an attempt to allocate damages on the more equitable basis of “superior fault.” It is clear that this active/passive doctrine forms the basis of the claim for indemnity put forth by the city in this case. The city’s third-party claim emphasizes the allegedly “passive and secondary” character of any fault which may be attributable to the city. It recognizes that “primary/secondary” or “active/passive” standards apply to indemnity claims based on negligence, warranty, and strict liability alike. See Lenhart v. Owens, 211 Kan. 534, 507 P.2d 318 (1973), where warranty indemnity was based on primary/secondary causation. There it is held, liability based on concurrent fault of indemnitee and indemnitor will not justify recovery.
The problems with traditional implied indemnity are many. Courts have had difficulty in characterizing specific conduct as active or passive, primary or secondary, since this language is so imprecise and capable of various interpretations. See Stanfield v. Medalist Industries, Inc., 17 Ill. App. 3d 996, 999-1000, 309 N.E.2d 104 (1974); Pachowitz v. Milwaukee & S. Transport Corp., 56 Wis. 2d 383, 389, 202 N.W.2d 268 (1972). Also, the theory necessarily distributes loss on an all or nothing basis. The traditional defense of the “no contribution” rule has been that it denies wrongdoers the benefits of the law. However, it must be recognized that a “passive” or “secondary” indemnitee received that benefit regardless of the extent of his wrong. Bielski v. Schulze, 16 Wis. 2d 1, 17-18, 114 N.W.2d 105, (1962); Restatement (Second) of Torts 886B, Comment (1). Settlements, which are ordinarily made with reference to the relative fault of codefendants, have been complicated by the possibility of all or nothing loss distribution, the consequent exoneration of the indemnitee, and the shouldering of the entire burden by the indemnitor. The traditional implied indemnity, regardless of its beneficent purpose, has been at best a “blunt instrument” for reallocating loss. Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362, 367 (Minn. 1977).
The advent of comparative negligence has made it possible in most cases to avoid the inadequacies of implied indemnity, since a mechanism now exists to assess the relative fault of various wrongdoers on a much more precise basis. Thus, a number of jurisdictions have seized upon the opportunity to abolish traditional implied indemnity in favor of a theory of “comparative causal responsibility.” Such a rule avoids the all or nothing aspect of implied indemnity law, and distributes loss in relation to fault, serving at once the remedial goals of strict liability, the equitable loss allocation goals of comparative liability, and the general deterrence goals of tort law.
A large and well-reasoned body of law in comparative negligence jurisdictions has determined that the concept of active/passive negligence has been extinguished by the introduction of comparative negligence. Wisconsin, an “early” comparative negligence state, judicially adopted a rule of comparative contribution in Bielski v. Schulze, 16 Wis. 2d 1. Since Wisconsin had historically allowed contribution among joint tortfeasors on a “share and share alike” basis, no implied indemnity doctrine was needed in that state. However, Bielski marks a relatively early recognition of the fact that in a comparative negligence case the only fair means of allocating responsibility as between joint tortfeasors is allocation on a percentage basis. The Bielski case laid the groundwork for the adoption of “comparative contribution” both in states recognizing a right to contribution by shares and jurisdictions in which the existence of a right to contribution was unclear. See Packard v. Whitten, 274 A.2d 169 (Me. 1971); and Gomes v. Brodhurst, 394 F.2d 465 (3rd Cir. 1967).
One of the first states to expressly abrogate the active/passive indemnity theory was New York in the case of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288 (1972). Dole is particularly instructive in the context of the present case since it involved toxic chemicals and a claim of a manufacturer’s failure to warn of the dangers inherent in use of the chemicals. The indemnity claim, however, was asserted “downstream” rather than “upstream,” in that the manufacturer asserted a right to indemnity from the user for the latter’s assertedly “primary” negligence. The New York court observed the many shortcomings of implied indemnity theory, and concluded that the liability of defendants inter sese should be determined on a percentage-of-fault basis.
Dole was followed by Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974), which adopted “comparative contribution” or “comparative indemnity” based on percentage of fault as a doctrine of federal common law. Later the Supreme Court in United States v. Reliable Transfer Co., 421 U.S. 397, 44 L.Ed.2d 251, 95 S.Ct. 1708 (1975), was presented with an admiralty claim in the comparative negligence context. Historically, admiralty law had sanctioned a “divided damages rule” which provided for allocation of half the damages to each party when both were at fault. An exception had developed, known as the “major-minor rule,” when the fault of the parties was grossly unequal. In operation, this exception provided for complete payment by the party “grossly” at fault; its operation was analogous to the implied indemnity principle of active/passive negligence previously adopted in Kansas. The Supreme Court in Reliable Transfer held that the rule merely replaced one unfairness with another, and concluded that the responsibility for damages as between two wrongdoers should be determined by their relative percentages of fault.
The Supreme Court’s reasoning on this matter of federal common law may be particularly important in Kansas, where it appears the acceptance of the active/passive indemnity principle is of relatively recent origin. In Russell v. Community Hospital Association, Inc., 199 Kan. 251, this court traced the history of implied indemnity in Kansas. Two previous Kansas cases were cited as instructive upon the principle, but the principal authority invoked was that of Security Insurance Co. of New Haven v. Johnson, 276 F.2d 182 (10th Cir. 1960), which is quoted at some length at pages 256, 257 and 258 of the Russell opinion.
Since the development of more recent products liability theories, the reasoning of the cases cited above has been extended by implication to indemnity claims between products liability defendants. In Skinner v. Reed-Prentice Div. Pack. Mach. Co., 70 Ill. 2d 1, 374 N.E.2d 437 (1977), the Illinois Supreme Court faced a claim for indemnity between two products liability defendants. Illinois traditionally had no right to contribution but recognized active/passive indemnity as did Kansas. The Illinois court observed that this form of indemnity had developed to mitigate the harsh effects of the no contribution rule, and recognized that the application of implied indemnity principles to the ever increasing situations where there is some fault attributable to both parties produces harsh effects without uniformity of result.
Perhaps one of the best recent examples of the proper handling of implied indemnity claims in a comparative negligence jurisdiction is provided by Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362. Tolbert contains an enlightening discussion of the principles addressed above. Plaintiff Tolbert brought a products liability action against both the manufacturer of a product (Gerber) and the installer of the product (Voldco). The jury attributed 100 percent of the negligence to Gerber and Voldco jointly, and it did not apportion percentages between them. Pursuant to established Minnesota law, the installer-distributor Voldco was awarded 100 percent indemnity from the manufacturer, Gerber. The Minnesota Supreme Court, however, recognized that a change in indemnity principles had been worked by the adoption of comparative negligence:
“The issue presented is one which prompts us to re-evaluate well-established common-law rules in light of recently adopted principles of comparative negligence. Specifically, the question is whether a negligent installer of defective equipment is entitled to 100-percent indemnity from the negligent manufacturer because the negligence of the former was ‘passive’ or ‘secondary,’ or whether the joint tortfeasors should be responsible for the loss in accordance with their respective degrees of culpability.” 255 N.W.2d at 364.
The court pointed out that dealer-manufacturer claims for indemnification are merely variants of the active/passive indemnity principle where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged. Expressing its disapproval of any theory which would shift the entire loss from one culpable wrongdoer to another, the court stated:
“In the related area of contributory negligence, our legislature has abandoned the all-or-nothing approach of the common law by adopting a comparative negligence statute, Minn. St. 604.01. Tortfeasors must now accept responsibility for damages commensurate with their own relative culpability. . . .
“By limiting the reallocation of loss between joint tortfeasors to contribution based upon relative fault, the more culpable tortfeasor will continue to bear a greater share of the loss, but at the same time his joint tortfeasor will not continue to escape all liability as in the past. . . .” 255 N.W.2d at 367.
It is interesting to note in that case the liability found by the jury and upheld on appeal was based upon theories of implied warranty of fitness and strict liability, as well as negligence. The Minnesota court recognized, then, that any indemnity claim having as its basis a disproportion of culpable conduct becomes inequitable and unfair when a comparative liability mechanism exists for precise determination of degrees of causal responsibility. There is no reason in a comparative liability jurisdiction to hold a defendant, the proposed indemnitor, liable for damages in disproportion to his causal fault. Similarly, there is no reason to deny another defendant, the proposed indemnitee, a right of liability reduction when his fault, although minimal in terms of causal involvement, may nevertheless be characterized as “active.”
It may be seen, then, that disapproval of indemnity awards based upon the supposed “active” or “primary” conduct of the indemnitee has gathered the support of a number of courts and commentators. Comparative liability, with its superior mechanism for allocating responsibility, renders the all or nothing theory of implied indemnity an anachronism. Yet the relatively unique comparative liability system existing in Kansas provides an even stronger impetus for the abolition of all or nothing implied indemnity.
Of course, to satisfy the legislative intent of encouraging resolution of all issues in a single action, the comparison of fault of all wrongdoers should be effected in the original action. Enrich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978). It must be recognized that the procedural mechanism of K.S.A. 60-258a(c) exists to facilitate joinder (and hence comparison) of all potential wrongdoers and may supersede the third-party mechanism which formerly provided the only means for securing a consideration of the fault of a wrongdoer who plaintiff chose not to sue. The maintenance of a claim by plaintiff against a joined party is not a prerequisite to securing comparison. Brown v. Keill, 224 Kan. 195, Syl. ¶ 6. It would appear, however, that the formal “joinder” mechanism of K.S.A. 60-258a(c) evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. This court has not, however, viewed the invocation of formal joinder as a necessary prerequisite to effecting comparison of fault (Brown v. Keill, 224 Kan. at 205-207), and this court has recognized that the comparative negligence statute is silent as to what position the added party occupies once that party is joined.
We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When as here a settlement for plaintiffs’ entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.
Although the plaintiffs (Kennedys) may have been dismissed from the action their comparative causal responsibility need not be determined except to ascertain that their causal negligence was not in excess of 49%. If it is determined to be in excess of 49%, no right to recover in the action existed and any claim for indemnity should be denied because of failure to establish actual legal liability. In the present case where the amount of the damages were not fixed by judicial proceedings, but by compromise and settlement between plaintiff and defendants, it will be the duty of the defendants to bring into the action all tortfeasors against whom comparative liability through indemnity is sought. Reasonable damages if less than the settlement figure should be judicially determined. If the reasonable amount of the damages is determined to be more than the settlement figure, all tortfeasors will receive the benefit of the bargain struck by the settling tortfeasor. The apportionment should be accomplished in the action which was pending between plaintiff and defendants when the compromise and settlement is accomplished. If a settlement has been made for all liability arising from the occurrence before a comparative negligence action has been filed, the settling tortfeasor may then and in that event file an action in court to have the degrees of responsibility among joint tortfeasors determined, damages assessed and apportionment decreed among them.
In such a case it would appear that the amount the defendant or defendants have paid in full settlement of plaintiffs’ claim would be the maximum amount subject to be apportioned. In any action where apportionment of responsibility is sought by a settling tortfeasor he or she will be required to establish the reasonableness of the amount of the settlement, and that he or she had an actual legal liability he or she could not be expected to successfully resist.
“The fact of voluntary payment does not negative the right to indemnity, since a person confronted with an obligation that he cannot legally resist is not obligated to wait to be sued and to lose a reasonable opportunity for compromise. Such recovery is subject to proof of liability and the reasonableness of the amount of the settlement. Thus, the indemnitee may be required to establish his case against the indemnitor in the same way that the claimant against him would have been obligated to do, namely, by a preponderance of the evidence. A mere showing by a party seeking indemnity that there was a reasonable possibility that it might have been held liable if it had not settled the injured party’s suit is not sufficient to recover indemnity; . . .” 41 Am. Jur. 2d, Indemnity § 33, p. 723.
Settlements between injured parties and tortfeasors are favored in the law, and the policy of settlement should be encouraged by providing that a release by an injured party of one tortfeasor does not release other tortfeasors from claims of indemnity. If the release agreement expressly releases all tortfeasors, the settling tortfeasor should be able to seek apportionment from his co-tortfeasors based on comparative degrees of responsibility.
This court concludes that in comparative negligence cases when full settlement of all liability to an injured party has been accomplished and a release obtained, proportionate causal responsibility among the tortfeasors should be determined and indemnity should be decreed based on degree of causation of the respective tortfeasors.
In returning this case to the trial court we do not wish our opinion to be misinterpreted. We make no determination as to the sufficiency of the evidence. We merely note there was indication in the record that a representative of Continental viewed the area surrounding the sewage lagoons and recommended the use of CR-125. We further note there was some claim made that the label on the CR-125 container was affixed by Huge and that it failed to adequately warn. There was some indication that Mr. Aubley, acting for the city, may have been negligent when he mixed the spray and applied it with a cattle sprayer. We suggest that these matters, if they can be established, are for the trier of fact. Even though negligence appears certain as to existence the comparative degree remains in considerable question.
Accordingly, the order dismissing the third-party defendants from this case is reversed and the case is remanded to the trial court for further proceedings in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by defendant Edward E. Case from jury convictions of two counts of felony murder (K.S.A. 21-3401), one count of aggravated arson (K.S.A. 21-3719), one count of aggravated burglary (K.S.A. 21-3716), and one count of misdemeanor theft (K.S.A. 1979 Supp. 21-3701).
On the night of June 22, 1978, at approximately ten or eleven o’clock, the defendant and John Lunsford were driving in the Lake Kahola area west of Emporia. After making an unsuccessful attempt to break into some of the cabins around the lake, Case and Lunsford made their way through Dunlap, Kansas, and stopped at the farm residence of Hattie Evelyn Mercer, age 72, and her brother, Frank Peterson, age 76.
Hattie and Frank were apparently awakened by the noise made by the two men as they tried to break into the house. Case and Lunsford saw lights come on in the house so they broke out the front door window, fired a shot from a shotgun through the window and told Mrs. Mercer and Mr. Peterson to stop where they were. Apparently Mr. Peterson didn’t heed the command and one of the men shot him in the neck with the shotgun. Mrs. Mercer was tied up with electrical cord and then beaten in an attempt to force her to tell them where to find money. Case and Lunsford searched the house, finding only a small amount of cash and coins. Mrs. Mercer was then taken into the bedroom and shot in the head with the shotgun. They then set the house on fire.
The two men then drove to Emporia, disposing of various articles stolen from the house along the way. The coins, totaling $31.68, were exchanged at an Emporia bank for paper currency the morning of the 23rd and the shotgun was thrown into the Neosho River as Case and Lunsford drove out of town on their way to New Mexico.
On June 30, 1978, Case was arrested for shooting a hitchhiker and charged with aggravated battery with a firearm in Valencia County, New Mexico. Kansas authorities were notified of the arrest and on July 1, 1978, Case was interrogated by law enforcement officers from the State of Kansas. Case was charged in Kansas on July 3,1978, and was served with a copy of the warrant that month in New Mexico. Case pled guilty to the aggravated battery charge in Valencia County, New Mexico, and was returned to Kansas in March of 1979 for trial.
Numerous points are raised which appellant contends denied him a fair and impartial trial. The first is alleged error by the court in denying a motion for a change of venue. The crimes were widely publicized in the Emporia area and were the subject of numerous newspaper articles and radio and television broadcasts covering the period of time from June 23, 1978, until the trial of the case in December of 1979. The motion for change of venue was heard by the court on October 29th and November 1, 1979. Copies of newspaper articles were introduced in evidence along with transcripts of radio broadcasts together with the results of a telephone survey conducted in the Emporia area by employees of defendant’s counsel. Defendant’s expert who testified in support of the telephone poll acknowledged that there were numerous flaws in the methodology used in conducting the poll. When asked to ignore all the various deficiencies apparent in the taking of the poll, the expert admitted that in his opinion more than 40 impartial jurors could be selected from a panel of 160 persons.
The law concerning a change of venue in a criminal action has been clearly set out in a number of cases. In State v. May, 227 Kan. 393, 394-395, 607 P.2d 72 (1980), this court summed up the existing law as follows:
“We set forth the law on change of venue in State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 (1977), where we stated:
‘A change of venue in a criminal case lies within the sound discretion of the trial court. [Citations omitted.] The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. [Citations omitted.] Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.’ ”
See State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978); State v. Gilder, 223 Kan. 220, 222-223, 574 P.2d 196 (1977).
In State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360 (1971), we stated:
“Furthermore, prejudice must be established ‘not as a matter of speculation but as a demonstrable reality.’ ” p. 598.
A review of the articles and radio news reports placed in evidence reveals they were factual, in temperate language and did not specifically draw conclusions of guilt. As appellee points out, the articles appeared during a period spanning over a year from June 23,1978, until September 7,1979. In addition, the telephone poll conducted by defense counsel’s employees took place in July while the actual trial did not take place until December.
After hearing the testimony and examining the evidence, the trial judge was of the opinion the extent of the publicity about the crimes was not such that defendant would be denied a fair trial in Lyon County. No actual prejudice was shown and we find no abuse of discretion by the trial court.
Appellant next contends that the trial court erred in not suppressing two statements he made to the Kansas authorities in New Mexico on July 1, 1978. He argues that his constitutional rights were violated when the Kansas authorities took his statement on July 1 after he had repeatedly asked the New Mexico authorities on June 30th for an attorney. It is undisputed that Case requested the New Mexico authorities to let him call an attorney. These requests were denied and New Mexico did not get around to appointing an attorney until the latter part of July, 1978. Case gave written and oral statements to the Kansas police officers on July 1, 1978. A Jackson v. Denno hearing was held on the admissibility of the statements and the court found the statements were freely and voluntarily given after Case had been fully advised of his rights under Miranda. While Case contends he was physically abused by the New Mexico authorities, no evidence, other than that of the defendant, supported the allegations. The Kansas officers, Lyon County Sheriff Dan Andrews, and K.B.I. agent Don Windsor, along with a New Mexico sheriff’s officer testified at the hearing. The hearing extended over portions of three different days, included the testimony of four witnesses along with numerous exhibits, and the transcript of the Jackson v. Denno hearing covers 216 pages. It should also be pointed out that the officer’s report which related the oral statement of Case was introduced at trial by the defendant and not by the State.
Appellant makes much of the fact that he had requested an attorney from the New Mexico authorities on June 30, 1978, and that he asked for an attorney on numerous occasions after July 1, 1978. Whatever may be the merit of appellant’s arguments insofar as the New Mexico proceedings are concerned, it is clear that he was advised of his rights by Kansas authorities before they proceeded to interview him. They knew nothing of the previous requests and Case gave his statements voluntarily. Case voluntarily and knowingly waived his right to remain silent and to be represented by counsel when he gave the statements to the Kansas authorities. Case argues that additional statements were taken from him by New Mexico authorities subsequent to July 1, 1978, and prior to the time an attorney was finally appointed. The State disclaimed any knowledge of any statements other than those of July 1st and no attempt was made to use any other statements. Appellant’s second point lacks merit.
Next appellant argues the trial judge interfered with defense counsel’s attempt to question the jury panel during voir dire. Appellant also contends the court committed error in not sustaining his challenges for cause, that the court went too far in questioning individual panel members who appeared to have some bias or prejudice adverse to defendant, and that a motion for mistrial should have been sustained. K.S.A. 22-3410 sets forth the various grounds upon which a potential juror may be challenged for cause. In the instant case most of the panel members had some prior knowledge of the crimes due to the widespread publicity. Prior to counsel’s examination of the jury panel the trial court undertook to question the panel as a whole as to their knowledge of the crimes, any preconceived opinions, any relationships with the victims, the parties, counsel and possible witnesses. As a result the court, on its own volition, struck 13 persons from the panel prior to any questioning by counsel. When the time came to select a panel for alternate jurors the court struck 2 out of 8 individuals in the same manner. After the county attorney had completed his examination and passed the panel for cause, defense counsel commenced a long, exhaustive and sometimes confusing interrogation of each member of the jury panel. During the process he challenged four members of the panel for cause and the judge, after further questioning, overruled three of the challenges and sustained the other. Prior to each ruling the trial judge undertook to question the potential jurors at some length and in a somewhat vigorous fashion.
K.S.A. 22-3408(3) provides:
“(3) The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose.”
K.S.A. 22-3410 states in part:
“(1) Each party may challenge any prospective juror for cause. Challenges for cause shall be tried by the court.” (Emphasis added.)
Challenges for cause are to be tried to the trial court and decided in the discretion of the trial court. State v. Nix, 215 Kan. 880, 529 P.2d 147 (1974). It is clear that the trial court is in a better position than this court to view the demeanor of prospective jurors as they are questioned. State v. Carpenter, 215 Kan. 573, 577, 527 P.2d 1333 (1974). In State v. Sanders, 223 Kan. 273, 275-276, 574 P.2d 559 (1977), this court stated:
“Under K.S.A. 22-3410(2)(i), before a juror should be excused for cause the court must determine that the juror’s state of mind with reference to the case or any of the parties is such there is a doubt that the juror can act impartially and without prejudice to the substantial rights of any party.
“Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion. (State v. Amodei, 222 Kan. 140, Syl. ¶ 4, 563 P.2d 440.)”
Following voir dire, defense counsel stated:
“At this point, Your Honor, I feel that subject to a motion that we will have and subject to the challenges that have been stated and the objections that have been noted, we will pass this panel for cause.”
Later, in chambers, he moved that four additional members of the panel be stricken for cause and, when overruled, that the court declare a mistrial. The court refused to consider additional challenges for cause inasmuch as the voir dire had been completed and the panel excused during the time counsel were to exercise their peremptory challenges. It was the opinion of the trial court that a challenge for cause should be made during voir dire so the court can properly fulfill its duties to inquire of the challenged individual and determine whether he or she should be excused as required by the statute. We agree. Each counsel had 12 peremptory challenges. Appellant’s challenges to 3 potential jurors during voir dire were overruled and he attempted to object to 4 more following voir dire. None of these seven individuals sat on the jury which was ultimately selected to try the case and no actual prejudice has been shown. State v. Sagebiel, 206 Kan. 482, Syl. ¶ 1, 480 P.2d 44 (1971). While a close review of the record would indicate that perhaps some of the panel members who were challenged for cause should have been excused by the trial court, we cannot say, in the absence of a showing of actual prejudice, that the court abused its discretion in its rulings upon the challenges or in its examination of the panel and its members.
Appellant next argues that his motion to dismiss the charge of aggravated arson should have been dismissed because both of the victims were dead before the house was set on fire. It is argued that under such circumstances there was no “human being” in the house as required by K.S.A. 21-3719. We find no merit in such an argument. In addition there was evidence that Frank Peterson may have been still alive when the fire was set.
Next appellant argues that it was error for the trial court to refuse to give requested instructions on lesser included offenses. It is contended that the underlying felony, aggravated burglary, is a specific intent crime and as appellant was too intoxicated from liquor and drugs to be able to form a specific intent, instructions on lesser degrees of the crimes charged should have been given. It is true that burglary and aggravated burglary both require that the element of specific intent be proved. State v. Finley, 208 Kan. 49, 56, 490 P.2d 630 (1971).
K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
It is clear that evidence of voluntary intoxication is relevant when a defendant is charged with a specific intent crime. Appellant did not testify and the only evidence of intoxication was in the statements given the Kansas authorities in New Mexico. The statements were quite detailed and specific about what took place on the night of June 22nd and the early morning of June 23, 1978. Appellant denied he was involved and asserted his cohort Lunsford broke into the house, killed the old people and set the house on fire. Appellant, according to his version, was an innocent bystander who merely drove the car, held the shotgun while Lunsford beat Mrs. Mercer and shared in the loot, meager as it was. On the other hand, Lunsford testified and placed all of the blame on Case. Lunsford also testified that although the two had been drinking they had not had any alcoholic beverages or drugs for 12 hours prior to committing the crimes.
In State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979), this court held:
“Under K.S.A. 21-3107(3), a trial'court is required to instruct on any lesser crime when there is evidence introduced under which the defendant might be reasonably convicted of the lesser offense. Such an instruction is required even though such instructions have not been requested or have been objected to. Ordinarily, in a felony-murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. State v. Bradford, 219 Kan. 336, 342, 548 P.2d 812 (1976). Where, however, the evidence of the underlying felony is weak or inconclusive, instructions on lesser or included offenses should be given if the evidence would support a conviction on such lesser crimes. State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978).”
The evidence of the underlying felony of aggravated burglary was certainly not weak or inconclusive. We find no error in the failure to give lesser included instructions based upon appellant’s claimed intoxication.
Finally, appellant argues the court committed error in its sentencing. The State asked for the imposition of the habitual criminal act based upon four prior felony convictions. Appellant contends the court did not follow the requirements of K.S.A. 21-4606 which provides criteria for fixing minimum terms. The record does not support the argument as the court fully complied with the statute. Appellant was sentenced to life in prison for each murder conviction, 30 years to life on the aggravated arson conviction, 10 to 30 years for aggravated burglary and one year for misdemeanor theft. The sentences are to run consecutively. In State v. Buckner, 223 Kan. 138, Syl. ¶ 6, 574 P.2d 918 (1977), this court held:
“When a sentence-is fixed by the trial court, within permissible limits of the applicable statutes, the sentence is not erroneous and in the absence of special circumstances showing an abuse of judicial discretion will not be disturbed on appeal.”
The sentences imposed, while lengthy, are within the limits set by the statutes and considering the heinous nature and the severity of the crimes, we cannot say the trial court abused its discretion.
A careful review of the entire record and all points raised on appeal fails to disclose that appellant was deprived of a fair and impartial trial.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by defendant, Merrill Andrews, based upon the failure of the trial court to appoint counsel to represent Andrews on his third motion for a new trial which was the second based upon newly discovered evidence filed pursuant to K.S.A. 22-3501.
On August 7, 1978, defendant was found guilty of aggravated burglary and first-degree murder. Steven C. Sherwood was appointed to represent the defendant and, following the conviction, filed a motion for a new trial which was heard and overruled by the trial court on September 1, 1978. Thereafter, Chester I. Lewis was retained by defendant to handle his appeal to this court. The conviction was affirmed in an unpublished opinion filed June 9, 1979. (Case No. 50,416.) Throughout the proceedings in the district court and the first appeal in this court and subsequent to our decision of June 9, 1979, defendant has filed literally dozens of pages of pro se pleadings, letters, affidavits and other documents.
On July 10, 1979, defendant filed with the district court numerous documents which the trial court treated as a motion for new trial based upon newly discovered evidence and a motion for appointment of counsel to represent defendant at a hearing on the motion for new trial. Defendant specifically requested that his appellate counsel, Mr. Lewis, not be appointed. The trial court once again appointed Mr. Sherwood to represent the defendant. The file reflects that defendant also filed affidavits, an amendment to his motion for a new trial, a motion for an evidentiary hearing, a request for production of documents, a request for subpoenas to be issued to 27 people, including four at the Lansing penitentiary and two at the Hutchinson reformatory, numerous letters to the clerk and to the district court judge and anonymous letters attesting to the defendant’s innocence.
Defendant’s motion was set for hearing on August 21, 1979. Seven inmates of the Lansing penitentiary and the Hutchinson reformatory along with the defendant were returned by the State to Sedgwick County for the hearing. Defendant was present in person and by his appointed counsel, Mr. Sherwood. Subpoenas had been issued as requested by defendant and an evidentiary hearing was held before the Hon. Elliott Fry. On August 23, 1979, Judge Fry issued his memorandum opinion in which he overruled defendant’s motion for a new trial. During the original trial one Noyldon Baker was a principal witness for the State. The newly discovered evidence consisted primarily of testimony from inmates at Lansing and Hutchinson to the effect that after the trial Mr. Baker recanted his testimony and told the other inmates that Andrews was innocent and not involved in the original crimes for which he was convicted. Unfortunately, Mr. Baker was deceased at the time of the August 21,1979, hearing. Other evidence was in the nature of an alibi and was not newly discovered as the witnesses were the same alibi witnesses that had been endorsed by the defendant prior to the original trial. After hearing all the admissible, relevant evidence and having the rather voluminous file .available, the court found that some of the evidence was unreliable and that considering the entire evidence it would not be likely that a different verdict would be reached in a second trial.
Thereafter, beginning on October 25, 1979, defendant began filing a series of pro se documents seeking new counsel, production of documents, another motion which appears to be a third motion for a new trial and request for rehearing of the previous motion heard August 21, 1979, and a motion requesting transcripts of the preliminary hearing, trial and the hearing held August 23, 1979. While it is difficult to determine the precise nature of most of these documents, the trial court construed the gist of them to be a third motion for a new trial and the second based upon newly discovered evidence, together with a motion to appoint counsel. Pro se pleadings are to be liberally construed. Jackson v. State, 1 Kan. App. 2d 744, 573 P.2d 637 (1977), rev. denied 225 Kan. 844 (1978). While we have certain reservations about the sufficiency of these documents, we will consider them in the same manner as the trial court. The motion for counsel was denied and the motion for a new trial was denied by Judge Fry on December 3, 1979, for the same reasons as his decision of August 23, 1979. The defendant was not present at the December 3rd hearing and was not represented by counsel. On December 26, 1979, defendant filed a pro se notice of appeal from the December 3rd ruling, a motion for appointment of counsel and objections to the December 3rd ruling. At this time he requested that Mr. Sherwood not be reappointed and that he be given new counsel. Mr. Daniel Brooks was appointed and has filed this appeal from the December 3, 1979, ruling on the grounds that the district court committed error when it failed to appoint counsel to represent the defendant for the third new trial motion. While the appeal was pending, defendant filed a motion seeking the removal of Mr. Brooks and the appointment of different counsel. This request was denied and Mr. Brooks represented the defendant on defendant’s second appeal to this court.
During the pendency of this appeal, defendant filed a motion asking this court to remand the case to district court so he could file still another motion for a new trial based upon allegations of newly discovered evidence. This motion was supported by sixteen legal size pages of affidavits and other material principally to the effect that the deceased Mr. Baker had recanted his testimony after the first trial. They are repetitious of prior documents filed by defendant and which were available to the trial court. This court overruled the motion to remand and, in due course, this appeal was presented.
The sole issue before the court is whether a defendant is constitutionally or statutorily entitled to be represented by counsel on successive repetitious post-trial motions seeking a new trial on grounds of alleged newly discovered evidence.
The statutory authority for a new trial is K.S.A. 22-3501, which reads:
“(1) The court on motion of a defendant may grant a new trial to him if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.
“(2) A motion for a new trial shall be heard and determined by the court within 45 days from the date it is made.”
The right of an indigent defendant in a state prosecution to have counsel furnished to him has been considered in numerous decisions by the United States Supreme Court for nearly fifty years. In Powell v. Alabama, 287 U.S. 45, 68, 77 L.Ed. 158, 53 S.Ct. 55 (1932), the Court unequivocally declared that under the sixth amendment to the Constitution “the right to aid of counsel is of . . . [a] fundamental character.” The failure to appoint counsel for an indigent defendant charged with a capital offense was found to be a clear denial of due process of law required by the Constitution. In 1963, the Court, in its landmark decision in Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963), held that sixth amendment provisions including the right to counsel were obligatory upon the states through the due process clause of the fourteenth amendment. Gideon did not, however, begin to answer all the questions of when due process requires the appointment of counsel. Subsequent cases have held that a juvenile is entitled to appointment of counsel in a delinquency proceeding (In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 [1967]), and the right to appointed counsel has been extended to state probation revocation hearings at which a deferred sentence may be imposed (Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254 [1967]). In Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972), the Court extended the right to counsel to many misdemeanor cases when it held that the sixth amendment forbids imposing a prison or jail sentence on any indigent who has not been afforded the right to counsel.
Along the same line, the Court has held that in addition to the trial and pretrial proceedings, an indigent defendant has a right to appointed counsel in perfecting his appeal, including the right to a trial transcript and the right to file an appeal without a filing fee (Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585 [1956]). In Griffin the Court reaffirmed the traditional principle that a state is not obligated to provide an appeal for criminal defendants at all; but where a state does grant appellate review in a criminal case, it cannot discriminate against some convicted defendants on account of their povferty. The Court went on to state that the due process and equal protection clauses protect a defendant from invidious discrimination at all stages of the proceedings. In Douglas v. California, 372 U.S. 353, 9 L.Ed.2d 811, 83 S.Ct. 814 (1963), the Court held unconstitutional California’s requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such an appointment would be helpful to the defendant or the court itself. The Court held that requiring an indigent to first submit his case for a preliminary ex parte examination of the record, which defendants with the means to hire counsel would not be subject to, violates the indigent’s right to equal protection of the laws as required by the fourteenth amendment. Other cases expanding a defendant’s right to counsel include Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966); Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964); and Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964).
In response to these decisions, the Kansas Legislature enacted a comprehensive statutory scheme for provision of legal representation to indigent persons in criminal matters. K.S.A. 1979 Supp. 22-4503 reads:
“A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant and a defendant in an extradition proceeding, or a habeas corpus proceeding pursuant to K.S.A. 22-2710, is entitled to have assistance of counsel at such proceeding. A person subject to an order or commitment pursuant to K.S.A. 1979 Supp. 22-3428 or 59-2917 shall be entitled to the assistance of counsel at every stage of a habeas corpus proceeding brought by such person and the provisions of this section relating to defendants shall be applicable to such persons. If such a defendant appears before any court or magistrate without counsel to assist and conduct the defendant’s defense, it shall be the duty of the court or magistrate to inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney. The court or magistrate shall give the defendant an opportunity to employ counsel of the defendant’s own choosing if the defendant states the defendant is able to do so; and if the defendant asks to consult with counsel of the defendant’s own choosing, the defendant shall be given a reasonable opportunity to do so. If it is determined that the defendant is not able to employ counsel, as provided in K.S.A. 1979 Supp. 22-4504, the court or magistrate shall appoint an attorney from the panel to aid indigent defendants to represent the defendant. A record of the proceedings provided for herein shall be entered in the journal, and any order binding the defendant for trial or directing further detention upon the charge and the journal entry of trial and judgment shall recite the substance of such proceedings. Counsel employed by or appointed for the defendant shall have free access to the defendant at all times for the purpose of conferring with the defendant relative to the charge, for advising the defendant respecting the defendant’s plea and for the preparation of the defense, if a defense is to be made. It is the duty of an attorney appointed by the court to represent a defendant, without charge to such defendant, to inform the defendant fully of the crime charged against the defendant and the penalty therefor, and in all respects fully and fairly to represent the defendant in the action. If, after the attorney’s appointment, the attorney learns that the defendant has funds or other resources sufficient to enable the defendant to employ counsel, the attorney shall report these facts to the court and ask permission to withdraw from the case or to be permitted to accept compensation for services, as provided in K.S.A. 22-4508.” (Emphasis added.)
K.S.A. 1979 Supp. 22-4505 provides for the appointment of counsel on appeals from felony convictions as follows:
"When a defendant has been convicted in the district court of any felony, the judge shall inform such defendant that he or she is entitled to appeal such conviction to the appellate court having jurisdiction and shall further inform, said defendant that if a defendant is financially unable to pay the costs of such appeal such defendant may request the court to appoint an attorney to represent him or her on appeal and to direct that said defendant be supplied with a transcript of the trial record. If the defendant shall make and file an affidavit stating that said defendant intends to take an appeal in the case and if the court determines, as provided in K.S.A. 22-4504, that the defendant is not financially able to employ counsel the court shall appoint counsel from the panel to aid indigent defendants to represent the defendant and to perfect and handle the appeal. If the defendant shall.file a verified motion for transcript stating that a transcript of the trial record is necessary to enable said defendant to prosecute the appeal and that said defendant is not financially able to pay the cost of procuring such transcript, and if the court finds that the statements contained therein are true the court shall order that such transcript be supplied to the defendant and paid for, as provided in K.S.A. 1976 Supp. 22-4509, from the fund to aid indigent defendants. Upon an appeal or petition for certiorari addressed to the supreme court of the United States, if the defendant is without means to pay the cost of making and forwarding the necessary records, the supreme court of Kansas may by order provide for the furnishing of necessary records.” (Emphasis added.)
K.S.A. 22-4506 provides for counsel for indigent defendants in habeas corpus proceedings and in proceedings attacking sentence under K.S.A. 60-1507. K.S.A. 22-4506 provides:
“If any person is in custody under a sentence of imprisonment upon conviction of a felony, and such person shall file a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and shall file with such petition or motion his affidavit stating that the petition or motion is filed in good faith and that he is financially unable to pay the costs of such action and to employ counsel to assist him, the court shall make a preliminary examination of the petition or motion and the supporting papers; and if the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been, or if he shall thereafter be, determined to be an indigent person, as provided in section 4 [22-4504], the court shall appoint counsel from the panel to aid indigent defendants to assist such person and authorize the action to be filed without a deposit of security for costs. If the petition or motion in such case raises questions shown by the trial record, the court shall order that the petitioner or movant be supplied with a transcript of the trial proceedings, or so much thereof as may be necessary to present the issue, without cost to him. Should an appeal be taken in such action, the trial court shall, if it finds that the petitioner or movant is an indigent person, appoint counsel to conduct the appeal, order that the appellant be supplied with a record of the proceedings or so much thereof as such counsel determines to be necessary and order that the deposit of security for costs be waived.”
It is clear that when an indigent defendant wishes to pursue a writ of habeas corpus or a motion attacking sentence pursuant to K.S.A. 60-1507, the district court is to examine the merits of the motion or petition and then make a decision as to whether the appointment of counsel is necessary.
Thus it is obvious that our statutes provide that an indigent defendant is entitled to counsel at every stage of the pretrial proceedings and trial (K.S.A. 1979 Supp. 22-4503), on appeal (K.S.A. 1979 Supp. 22-4505) and in habeas corpus proceedings and motions attacking sentence under K.S.A. 60-1507. However, nothing in our statutes specifically covers the problem of post-conviction motions including motions for a new trial. We think it is clear that the customary motion for a new trial which must be filed within ten days under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings which falls within the purview of K.S.A. 1979 Supp. 22-4503, and counsel must be provided for the purposes of such a motion. Are subsequent motions, filed after the ten day period and frequently after an unsuccessful appeal, seeking a new trial on the grounds of newly discovered evidence, also within the purview of the statute? We think not.
In habeas corpus and motions attacking sentence under K.S.A. 60-1507, the statute clearly sets forth a procedure where the court shall make a preliminary investigation before being required to appoint counsel. However, habeas corpus proceedings and motions under 60-1507 are civil in nature and not controlled by the constitutional or statutory requirements applicable to criminal cases. In the recent case of State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), this court had occasion to compare proceedings on successive motions for a new trial based upon newly discovered evidence to proceedings under K.S.A. 60-1507. In Bryant the defendant claimed his constitutional and statutory rights had been violated when his motion for a new trial based upon newly discovered evidence was heard and determined without the defendant being present. The trial court, after examination of a defense witness, denied the defendant’s motion for a new trial and in the opinion of the court we stated:
“K.S.A. 22-3501 provides that the court on motion of defendant may grant a new trial to him if required in the interest of justice. That statute further provides that a motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment. A motion for a new trial based on other grounds may be filed within ten days after the verdict or finding of guilty or within such further time as the court may fix. The issue presented here is whether the defendant is entitled to be present, as a matter of right, at a hearing on his motion for a new trial filed after the imposition of sentence, where the ground asserted is newly discovered evidence. We have concluded that the presence of the defendant at such a hearing is a matter resting within the sound discretion of the trial court.
“The majority view throughout the United States is that the presence of a convicted defendant is not required at a hearing on a postverdict motion for a new trial. 21 Am. Jur. 2d, Criminal Law § 308; Annotation at 69 A.L.R.2d 835. The rationale of the majority rule is that the trial ends when a verdict has been rendered, that any right which an accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and that a defendant, once convicted, cannot expect to be present at postconviction motions. A motion for a new trial based upon newly discovered evidence, filed after the imposition of sentence, is comparable to the procedure provided under K.S.A. 60-1507. In proceedings under 60-1507, the trial court normally conducts a preliminary inquiry to determine whether the claims asserted in the motion are substantial before granting a full evidentiary hearing and requiring the petitioner to be present.
“We cannot say that the trial court abused its discretion in refusing to grant the defendant a further evidentiary hearing with an opportunity to be present.
“We wish to emphasize we are not holding that a trial court has an unbridled discretion to deny a defendant an evidentiary hearing on a motion for a new trial based upon newly discovered evidence where there is substantial evidence to support the motion. We are simply holding that, under the circumstances of this case, the trial court did not abuse its discretion.” (Emphasis added.) pp. 390-392.
The procedure provided by K.S.A. 22-4506 obviously is not included within K.S.A. 1979 Supp. 22-4503 but we do not think the use of similar procedure under circumstances such as exist in this case on successive post-trial and post-appeal motions could be considered an abuse of discretion by the trial court. In ruling on a motion for a new trial on the grounds of newly discovered evidence the rules were recently summarized in State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977), as:
“The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, supra.) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Amey, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, supra.)” p. 471.
We find no statutory mandate that requires the appointment of counsel at each and every post-trial motion seeking a new trial on the grounds of newly discovered evidence and such a decision rests within the sound discretion of the trial court.
As to the constitutional requirement, the general rule is that an accused “requires the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527 (1932). In United States v. Wade, 388 U.S. 218, 226, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967), the Supreme Court held that “[i]t is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” The Court went on to state:
“In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings.” (388 U.S. at 224.)
“[T]he principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” (United States v. Wade, 388 U.S. at 227.) (Emphasis added.)
Thus the trend has been for the court to determine whether the matter before the court is a critical stage of the proceeding although the court has not been as willing to provide counsel in post-conviction proceedings as in pretrial proceedings.
In Coleman v. Alabama, 399 U.S. 1, 9, 26 L.Ed.2d 387, 90 S.Ct. 1999 (1970), the U.S. Supreme Court held that “[t]he determination whether the hearing is a ‘critical stage’ requiring the provision of counsel depends, as noted, upon an analysis ‘whether potential substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.’ United States v. Wade, supra, [388 U.S.] at 227.”
Considering the broad discretion of the trial court in granting a motion for a new trial based upon newly discovered evidence and the constitutional requirements for the appointment of counsel as developed by the United States Supreme Court, we hold that under the circumstances of this case the defendant has shown no potential substantial prejudice to his rights and did not have a statutory or constitutional right to the absolute appointment of counsel for the purposes of prosecuting such a motion. No abuse of discretion has been shown.
The judgment is affirmed. | [
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This original proceeding in discipline w¿s filed against James F. Swoyer, Jr., an attorney duly admitted to practice law in the State of Kansas. A panel of the Kansas Board for Discipline of Attorneys held a hearing on a complaint against Mr. Swoyer and filed its report, omitting formal and preliminary portions, as follows:
“The panel makes the following findings of fact:
“1) James F. Swoyer, Jr. is an attorney in good standing admitted to practice in Kansas. He has practiced in Oskaloosa, Kansas, for many years. Mr. Swoyer and his wife, Martha Swoyer, and one other person, practice under the firm name of Swoyer & Swoyer. The pleadings of the office files customarily bear the style Swoyer & Swoyer, and any publication notices in probate and other matters carried the name Swoyer & Swoyer.
“2) The respondent was attorney for Raymond Pittam during all of 1979.
“3) Mr. Pittam had had some business reverses and had to close the restaurant which he ran. Mr. Pittam and Elizabeth Woods were buying a residence under contract. They retained Mr. Swoyer to help them sell their interest in the residence. Mr. Pittam gave Mr. Swoyer a written Power of Attorney to authorize Mr. Swoyer to wind up his business affairs and sell the residence.
“4) Mr. Swoyer was still engaged in representing Mr. Pittam on November 15, 1979. On that date, Edith Orr visited with Mr. Swoyer in his office about a claim she had against Mr. Pittam for wages and for some expenses she said she paid on Pittam’s behalf. Mr. Swoyer advised Mrs. Orr to file suit against Mr. Pittam.
“5) A Petition was prepared and filed in the District Court of Jefferson County, Kansas, Edith Orr, Plaintiff v. Raymond F. Pittam and Elizabeth R. Woods, Defendants, Case No. 79C164, on November 15, 1979. The Petition was signed personally by Edith Orr. It indicated on the lower lefthand side of the first page ‘Swoyer & Swoyer, P. O. Box 333, Oskaloosa, Kansas.’ Martha N. Swoyer signed the verification as notary public. Martha N. Swoyer received a receipt for $35.00 docket fee on November 15 when the case was filed. A memorandum from the Clerk of the District Court was sent to James F. Swoyer, Jr., on November 15, 1979, indicating that the Orr v. Pittam case had been assigned to the Magistrate Judge for hearing. On December 5, 1979, the sheriff’s fee for serving the summons in St. Joseph, Missouri, was paid out of the account of ‘James F. Swoyer, Jr., Attorney’, and the check was signed by Martha N. Swoyer.
“6) Raymond Pittam was in Mr. Swoyer’s office on November 27,1979, at which time Mr. Swoyer wrote a letter to the Internal Revenue Service in an effort to dispose of an Internal Revenue Service lien against Mr. Pittam’s property.
“7) Mr. Pittam did not know of the Orr v. Pittam lawsuit until after November 27, 1979. He did not consent to Mr. Swoyer or Mr. Swoyer’s office representing Mrs. Orr in a lawsuit against him.
“8) Mr. Pittam learned of the filing of the lawsuit about December 1, 1979. He immediately complained to Mr. Swoyer and to the Disciplinary Administrator.
“9) On March 13,1980, Mr. Swoyer filed a pleading in the Orr v. Pittam lawsuit requesting an order authorizing him to remove the firm name of Swoyer & Swoyer from the Petition for the reason that the plaintiff filed her Petition ‘per se’.
“10) An order authorizing that change was filed the same date.
“Also on the same date, Mr. Swoyer prepared and filed a Journal Entry of Judgment against Mr. Pittam which recited that the plaintiff appears ‘per se’.
“The panel makes the following conclusions of law:
“A. James F. Swoyer, Jr., was representing Raymond Pittam as his attorney on November 15, 1979, and before. In addition to acting as Pittam’s attorney at law, Swoyer had a fiduciary duty as Pittam’s attorney in fact.
“B. Mr. Swoyer did give advice to Edith Orr, other than the advice to secure counsel, when the interests of Edith Orr were in conflict with the interests of his client in violation of D.R. 7-104(a)2.
“C. Although the Petition filed on behalf of Mrs. Orr was signed by her ‘per se’, it was prepared by the office of James F. Swoyer, Jr., and he was representing her in filing this Petition. His acceptance of this employment, whether paid or not, is in violation of D.R. 5-105(a).
“D. Mr. Swoyer’s action in advising Mrs. Orr and in filing the Petition against Mr. Pittam prejudiced Mr. Pittam’s rights in violation of D.R. 7-101(a)(3).
“The respondent contends that as he had been given Power of Attorney by Mr. Pittam to handle Pittam’s affairs with regard to Pittam’s restaurant business, and as the claim of Mrs. Orr was connected with the restaurant business, he was simply carrying out his client’s wishes in attempting to secure payment for Mrs. Orr. The panel is not convinced by this argument. If it had been Mr. Pittam’s intention to encumber what property he had left under the control of Mr. Swoyer, it would appear that Mr. Swoyer could have granted a mortgage or other type of lien much easier than he could have filed a Petition in District Court against his client.
“The respondent also contends that he is not responsible for filing the Orr lawsuit for the reason that all he did was advise Mrs. Orr to file the case herself. It is admitted that the Petition was typed in Swoyer’s office, the court costs were paid by Swoyer’s office, and that the Journal Entry of Judgment was prepared by Mr. Swoyer and filed by Mr. Swoyer. Where Mr. and Mrs. Swoyer were both attorneys, and practiced under the name of Swoyer & Swoyer for several years, and worked together on almost all legal matters in the office, and filed pleadings bearing the style Swoyer & Swoyer, and were both listed in the Kansas Legal Directory under the firm name Swoyer & Swoyer, Mr. Swoyer’s arguments that she was a sole practitioner and not really associated with him do not have much weight.
“It is the panel’s recommendation that James F. Swoyer, Jr., be disciplined by public censure.”
Mr. Swoyer took no exceptions to the report as filed by the Board. We have carefully reviewed the record and being fully advised, adopt and concur in the report of the Board and its recommendations.
It is Therefore by the Court Ordered, Adjudged and Decreed
that James F. Swoyer, Jr. be and he is hereby disciplined by public censure and is further ordered to pay the costs of this action.
It is Further Ordered that this Order of Public Censure shall be published in the official Kansas Reports.
By Order of the Court, dated this 6th day of December, 1980. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Rex S. Miller, the Nebraska guardian and conservator for Frederick J. Miller, from an award of attorney fees to Eric W. Severson for his work in petitioning for the appointment of a Kansas guardian and conservator.
Frederick J. Miller retired from the Air Force where he served as a dentist. On November 1, 1960, Rex S. Miller, son of Miller and his first wife, was appointed to serve as guardian and conservator for Frederick Miller in Nebraska. He continues to serve in that capacity. On June 27, 1961, Frederick Miller was voluntarily committed to the Omaha Veterans Administration Hospital. Later, Dr. Miller was transferred to the VA Hospital in Knoxville, Iowa, and on December 20, 1966, through the efforts of his second wife and their two adult daughters, Dr. Miller was transferred to the Topeka V.A. Hospital where he has remained to this time.
Dr. Miller became dissatisfied with the amount of money his guardian, Rex Miller, permitted him to have from his various pensions which had accumulated into a balance of $49,325.23 in 1976. The money was deposited in various banks and savings and loans. He discussed his problem with Eric W. Severson, a Topeka lawyer. As a result, Severson petitioned for the appointment of a guardian and conservator for Frederick J. Miller in Shawnee County on March 9, 1978, under K.S.A. 59-3009 et seq. The petition alleged that “Frederick J. Miller is in need of the appointment of a guardian and conservator because he currently suffers from certain medical disorders, to-wit: chronic schizophrenia and organic brain syndrome manifested by poor memory, and is therefore incapable of making all personal decisions and managing his financial affairs.” Severson asked that Charles Andrews, of the law firm of Sprague, Miller and Andrews, be appointed guardian and conservator. Severson knew Frederick J. Miller had a Nebraska guardian and conservator and acknowledged it to the court in his trial brief.
On March 20, 1978, Dr. Miller’s guardian and son, Rex Miller, of Lincoln, Nebraska, filed an entry of appearance and a motion to dismiss in the case, attacking the Kansas court’s jurisdiction. The motion was overruled and after a lengthy hearing the parties stipulated that Karen Schuh, Frederick Miller’s daughter, be appointed “guardian only for the person of Frederick J. Miller, in the State of Kansas.” Karen Schuh qualified on June 5, 1978, and letters of guardianship were issued to her on that date.
Patrick Nichols, a Topeka attorney, was appointed by the court as guardian ad litem for Frederick J. Miller for the hearing on the petition. The court allowed Nichols an attorney fee in the amount of $1500 stating “the above cost is hereby assessed against the conservatorship of the estate of Frederick J. Miller.” No appeal was taken from that order.
On May 17, 1978, Eric Severson filed a motion for allowance of attorney fees and expenses in the amount of $2,674.67 for services as attorney for the petitioner. Rex Miller, the Nebraska guardian and conservator, filed defenses to Severson’s motion, attacking the jurisdiction of the court and questioning the court’s statutory authority to award attorney fees and the reasonableness of the award. On August 22, 1978, the court granted the motion for attorney fees in its entirety and this appeal followed.
Appellant raises five issues on appeal. Only three issues will be discussed in this opinion as they are dispositive of the case.
The threshold issue is whether the Kansas court has subject matter jurisdiction over this guardianship proceeding. Appellant argues the mere presence of a proposed ward in the county, absent a finding of permanent residency, confers no jurisdictional basis for a Kansas court to appoint a guardian, thus rendering the entire proceedings, including allowance of attorney fees, void. Inland Industries, Inc. v. Teamsters & Chauffeurs Local Union, 209 Kan. 349, 356, 496 P.2d 1327 (1972). Appellee argues the appointment of the Kansas guardian was stipulated and agreed to by both parties, thereby eliminating any question of jurisdiction. Appellant correctly alleges that consent does not waive subject matter jurisdictional defects. In re Estate of Freshour, 177 Kan. 492, 280 P.2d 642 (1955).
With the consent issue eliminated, we are left with appellant’s argument which relies upon three older cases specifically holding Kansas has no jurisdiction to appoint a guardian unless the proposed ward is a permanent resident of this state. Foran v. Healy, 73 Kan. 633, 85 Pac. 751 (1906); Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747 (1922); and Henry v. Edde, 148 Kan. 70, 79 P.2d 888 (1938). Those cases interpreted G.S. 1901 § 3941, and its statutory successors, which stated in part:
“If information in writing is given to the probate court that any one in its county is . . . incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury.”
The present statute is K.S.A. 59-3009:
“Any person may file in the district court of the county of the residence or presence of the proposed ward a verified application for the appointment of a guardian.”
The distinguished Judge of the Court of Appeals, Bob Abbott, states in In re Miller, 5 Kan. App. 2d 246, 251-53, 616 P.2d 287 (1980):
“At the time Kansas interpreted the since-repealed G.S. 1901, § 3941 as not granting subject matter jurisdiction to appoint a permanent guardian over a person domiciled in a foreign jurisdiction, the Restatement of Conflict of Laws did not recommend jurisdiction over any child or incompetent unless the proposed ward was domiciled in the state (at §§ 117, 149). The Restatement did provide for a temporary guardianship of a ward domiciled in a foreign jurisdiction (at §§ 118, 150). Kansas followed the Restatement in its early cases concerning guardian-ships, with only minor exceptions not applicable to this case. In 1965, Kansas separated the treatment of mentally ill persons (Article 29, K.S.A. 59-2901 et seq.) from guardianship and conservatorship proceedings and adopted K.S.A. 59-3009. When Kansas was studying possible changes in guardianship, the American Law Institute was considering changes that ultimately led to the adoption of Restatement (Second) of Conflict of Laws. The first tentative draft was available in 1953 and the final tentative draft was available in 1965. The tentative drafts were followed by the three installments of the proposed official draft (1967-69), and the official adoption occurred in 1969. Restatement (Second) recommends that a state have jurisdiction over a child or adult ‘(a) who is domiciled in the state, or (b) who is present in the state, or (c) who is neither domiciled nor present in the state, if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.’ Restatement (Second) of Conflict of Laws § 79 (1971).
“K.S.A. 59-3009 gives specific authority to any person to file in the district court of the county where the proposed ward resides or is present a petition for appointment of a guardian. It appears that the intent of the legislature in 59-3009 was to expand the court’s jurisdictional bases to conform to the recommendation ultimately adopted in Restatement (Second) of Conflict of Laws § 79 (1971). Appellant asserts that 59-3009 merely sets the venue for guardianship proceedings, and does not attempt to confer jurisdiction. Venue for guardianship proceedings is specifically set out in K.S.A. 59-2203, suggesting that 59-3009 pertains to more than just venue. Such interpretation is logical when attempting to harmonize the existence of the two statutes without finding them duplicitous.
“The Supreme Court of the United States has never had occasion to place constitutional limitations upon an attempted exercise of state power in appointing a guardian. Therefore, the question of what factual connection must exist between a state and a ward before the state has power to appoint a guardian is first to be answered by looking in each state to the statutory law which gives power to the courts. Paulsen and Best, Guardians and the Conflict of Laws, 45 Iowa L. Rev. 212, 213 (1960). Restatement (Second) of Conflict of Laws § 79 (1971) states:
‘The state where the [ward] is physically present has the most immediate concern with him; its courts also have direct access to the [ward] and may be most qualified to decide what will best redound to his welfare. . . .’ (at 237.)
‘. . . The state in which the [ward] is physically present must have power to take the necessary steps for his protection . . . .’ (at 238.) Courts and commentators alike have been critical of a strict resort to domiciliary jurisdiction without some additional provision for jurisdiction in the court of the state where the ward is present. See In re Adoption of Pratt, 219 Minn. 414, 18 N.W.2d 147 (1945); 45 Iowa L. Rev. at 213-22.
“We are convinced the legislature intended to grant subject matter jurisdiction, based on presence in the state, and that Kansas has jurisdiction to appoint a guardian pursuant to K.S.A. 59-3009 for any incapacitated person who is within this state, even though a foreign jurisdiction has previously exercised jurisdiction by appointing a guardian or conservator or both, and continues to exercise such jurisdiction.”
We adopt that part of the Court of Appeals opinion and hold the Kansas trial court had subject matter jurisdiction to appoint a guardian for Frederick J. Miller by virtue of his presence within this state pursuant to K.S.A. 59-3009.
It is also questioned whether a Kansas court with subject matter jurisdiction should exercise such jurisdiction as a matter of comity. Although the Court of Appeals expressed its disapproval of counsel and the Kansas trial judge for this lack of contact with the Nebraska court, the court found no abuse of discretion on the part of the trial judge in choosing to exercise jurisdiction over the case. We agree with that conclusion.
The central issue of this case is whether the trial court had authority to award attorney fees to Eric Severson. The general rule is that attorney fees are not allowable as costs in an action in the absence of statutory authority. Lines v. City of Topeka, 223 Kan. 772, 782, 577 P.2d 42 (1978); McGuire v. McGuire, 190 Kan. 524, 376 P.2d 908 (1962). The trial court relied on K.S.A. 59-3032 for authority to award fees to Severson and the guardian ad litem. The pertinent portion of K.S.A. 59-3032 states:
“In each proceeding the court shall allow and order paid to any individual or institution as a part of the costs thereof a reasonable fee and expenses for any professional services ordered performed by the court pursuant to this act other than those performed by any individual or institution under the jurisdiction of the department of social and rehabilitation services, but including the fee of counsel for the proposed ward or proposed conservatee or ward or conservatee when counsel is appointed by the court. Other costs and fees shall be allowed and paid as are allowed by law for similar services in other cases. The costs shall be taxed to the estate of the proposed ward or proposed conservatee or ward or conservatee, to those bound by law to support him or her or to the county of the residence of the proposed ward or proposed conservatee or ward or conservatee as the court having venue shall direct.”
The issues of this case are complicated by Severson’s position as petitioner against Miller, who is represented by Nichols, the guardian ad litem. In addition, the ward has a guardian of his person and estate in Nebraska, who as a general rule, is entitled to the custody and control of the person of the ward. Roberts v. Coffey, Administrator, 198 Kan. 695, 426 P.2d 30 (1967); 39 Am. Jur. 2d, Guardian and Ward § 67, p. 59. We find K.S.A. 59-3032 does not provide for the allowance of fees to an attorney who personally petitions for the appointment of a guardian or conservator for a proposed ward or proposed conservatee. The statute clearly provides for “reasonable fees and expenses for any professional services ordered performed by the court.” (Emphasis added.) Those fees are to be allowed by the court as a part of the costs. Severson obviously wishes to obtain an adjudication of his claim for attorney fees and present it to the Nebraska court for satisfaction as a foreign judgment. We acknowledge the Kansas court is in a better position to evaluate the reasonableness of Severson’s claim, but the question remains as to the authority of the court to award attorney fees. Severson, as petitioner, does not fall within the purview of the statute.
More important to this case is the fact the ward’s estate is located in Nebraska and we are dealing with a claim against that estate. In response to the appellant’s allegation that the Nebraska court has exclusive jurisdiction over the ward’s assets because of the Nebraska conservatorship, the Court of Appeals found the action of the Nebraska guardian, an officer of the court, in consenting to the appointment of a Kansas guardian, acted as a relinquishment of jurisdiction by the Nebraska court itself. In re Miller, 5 Kan. App. 2d 246. We disagree with this holding. The Kansas court has no extraterritorial authority over personal property located in Nebraska (In re Estate of DeLano, 181 Kan. 729, 315 P.2d 611 [1957]), and we do not find the Nebraska guardian’s acquiescence in the appointment of the Kansas guardian to confer such authority. Severson’s remedy lies with a claim against the conservator’s estate in Nebraska.
The judgment of the trial court is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
McFarland, J.:
Regina P. Brooks appeals from her jury trial convictions of two counts of endangering a child (K.S.A. 21-3608). Ms. Brooks raises a number of issues which fall generally into three categories: (1) Alleged trial errors in the admission of evidence; (2) insufficiency of the evidence; and (3) constitutionality of the statute under which she was convicted.
The unique facts of the case are so entwined in all issues that they must be set forth in considerable detail. Defendant is the mother of twin daughters, Monique and Mahogany, who were six months old on July 17, 1979, the date of the incident herein. The family resided in an apartment in Cóffeyville, Kansas. Sometime between nine and ten o’clock on the evening in question one Carmen Sales, tenant of another apartment in the building, contacted Clarence Davis, the apartment maintenance man, and advised him that she was babysitting in the Brooks apartment and was locked out. Mr. Davis was unsuccessful in opening the door for Ms. Sales as the lock had been jammed. Through the window Davis observed two infants lying on the divan. Police officers were summoned and they forcibly entered the apartment. Officers observed that all gas jets on the burners of the cookstove were turned on with the pilot lights out. The police concluded that this condition could not have occurred accidentally. Both children were wet and soiled and appeared ill. The infants were taken to a local hospital where they recovered, although they were diagnosed as having a viral disease. At the hospital the police questioned Ms. Sales, who advised that she was supposed to babysit with the children at the request of the defendant but had been unable to gain entrance to the apartment. Much later in the evening defendant came to the hospital but apparently was inebriated and officers learned little from her.
Based on the facts above stated, the police proceeded on the theory that defendant was the last person in the apartment and was directly responsible for conditions therein found.
Later, defendant delivered to the police an unsigned, voluminous, and partially unintelligible letter, which she advised had been received by her from Carmen Sales that day. Defendant offered the letter as an explanation of the incident. The police contacted Ms. Sales, who acknowledged the letter and deciphered same. With Ms. Sales’ help words were written in ink over the unreadable penciled parts and Ms. Sales signed same in the officers’ presence. The gist of the letter was that Ms. Sales was angry with defendant by virtue of defendant’s overtures to Sales’ boyfriend some six weeks prior to the incident, had threatened to harm defendant’s children, and had turned on the gas, intending to harm the children. The State tried the case on the theory that: (1) Carmen Sales was a highly unstable person and such fact was known to defendant; (2) defendant knew that Carmen Sales was angry with her over her boyfriend; (3) defendant knew that Carmen Sales had threatened to harm the children; and (4) by leaving Carmen Sales alone with the children defendant “unreasonably and willfully put her children in a position where their life, body or health were in danger,” contrary to K.S.A. 21-3608(l)(b), which provides:
“(1) Endangering a child is willfully:
“(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be placed in a situation in which its life, body or health may be injured or endangered.”
Carmen Sales was not charged with any crimes as a result of the incident and was not called as a witness at trial by either party, although she apparently would have been available. Various witnesses testified as to threats by Ms. Sales against the children, but all denied defendant’s prior knowledge of same, as did defendant.
We shall now consider whether the evidence was sufficient to sustain the convictions. The appropriate standard for appellate review is set forth in State v. Peoples, 227 Kan. 127, Syl. ¶ 2, 605 P.2d 135 (1980), as follows:
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?”
There are serious questions present as to the propriety of much of the evidence. Without attempting to segregate improper evidence from proper evidence, we must conclude that the evidence as introduced was insufficient to sustain the convictions under the standard set forth in Peoples.
The central issue at trial should have been whether defendant willfully placed the children in the care of Carmen Sales, knowing it was likely Ms. Sales would intentionally harm the children or otherwise deliberately endanger their persons. This issue was obscured in a sea of testimony relative to the poor physical condition of the children, the lack of infant food in the apartment, the dirty condition of the children, the extreme heat of the apartment, defendant’s inebriated condition at the hospital and apparent lack of concern for what had happened to the children, defendant’s association with felons, her patronage of disreputable business establishments, and the fact defendant had never been married but had borne three children (the oldest child was not involved herein).
On the crucial issue the evidence was insufficient to sustain the convictions. By virtue of this conclusion other issues raised need not be determined.
The judgment is reversed. The convictions are reversed and the defendant is discharged therefrom. | [
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Jeffrey F. Spears, of Overland Park, an attorney admitted to the practice of law in the State of Kansas. The formal complaint filed against respondent contained three counts alleging violations of Model Rules of Professional Conduct (MRPC) 1.1 (1993 Kan. Ct. R. Annot. 258); 1.3 (1993 Kan. Ct. R. Annot. 263); 1.4 (1993 Kan. Ct. R. Annot. 267); 1.16 (1993 Kan. Ct. R. Annot. 304); and 8.4 (1993 Kan. Ct. R. Annot. 347); and Supreme Court Rule 207 (1993 Kan. Ct. R. Annot. 170). Respondent did not file an answer.
A hearing before a panel of the Kansas Board for Discipline of Attorneys was held on September 1, 1993. Respondent was notified of the hearing but did not appear in person or by counsel.
The pánel found the following facts were established by clear and convincing evidence;
COUNT I
“2. On June 19, 1989, Dorothy Redden was injured in an accident, and on May 24, 1990, she entered into a fee agreement with the Respondent. [Citation omitted.]
“3. In July and August of 1990, the Respondent wrote to obtain Ms. Redden’s medical records. After January of 1991, the Respondent did nothing further on the case despite the fact that Ms. Redden monthly delivered her medical bills to the Respondent’s law office, either to Respondent’s secretary or personally to Respondent. On these visits, the Respondent repeatedly told Ms. Redden that there was plenty of time in which to file an action based upon Ms. Redden's accident.
“4. No contact with the other party’s insurance company was ever initiated by the Respondent. Ms. Redden was told by her insurance agent in October of 1991 that the statute of limitations had lapsed and that she was out of time to file an action against the other party involved in the injury accident.
“5. Ms. Redden called the Respondent in October of 1991, and he told her that she had waited too long to contact his office and that it was her fault that the Statute of Limitations had expired. Immediately subsequent to that telephone conversation, the Respondent wrote the letter shown as Exhibit C, characterized by Ms. Redden in her testimony as an ‘about face’ letter in which Respondent acknowledged that he had allowed the statute of limitations to expire.
“6. Ms. Redden employed Clifford Cohen to represent her in a malpractice action against the Respondent. Respondent initially defaulted on the answer to the case, subsequently filed a motion for leave to file his answer out of time, and ultimately filed his answer on November 6, 1992.
“7. Ms. Redden was granted her motion for summary judgment and Respondent did not appear at the hearing. Respondent subsequently moved to set aside the summary judgment but before rehearing stipulated as to judgment, which was entered June 28, 1993."
COUNT II
“9. Kathy Metcalf Holt is the complainant in Case No. B5557. In 1987 Respondent represented her in obtaining a divorce.
“10. On June 1, 1992, Respondent received a notice of hearing to reduce child support but did not mail a copy of the notice to Ms. Holt or notify her of his receipt of the notice. In a telephone call to Respondent’s office on June 16, Ms. Holt first learned of the hearing set for June 25.
“11. Respondent asked for a retainer of $160, which Ms. Holt personally delivered to his office on June 17 [citation omitted]. At that time Respondent told Ms. Holt that he needed to do discoveiy which he subsequently failed to undertake.
“12. The attorney for Ms. Holt’s former husband obtained a continuance and rescheduled tire hearing date to August 6; Respondent failed to send notice of the rescheduled hearing to Ms. Holt, and she therefore was unaware of and did not attend the hearing.
“13. Respondent attended the hearing which resulted in an award of reduced child support. Respondent did not notify Ms. Holt of the reduction in child support, and Ms. Holt first learned of the reduction in child support when she received a reduced check for child support.
“14. Upon receipt of the check for the reduced child support, Ms. Holt called Respondent who initially did not recognize who she was and requested her to ‘refresh’ his memory about the case.
“15. During this telephone call Respondent accused Ms. Holt of being a ‘disgruntled’ client who did not get her way. He then advised her that he would obtain certain information from Ms. Holt’s former husband’s attorney and mail it to her and then hung up on her.
“16. Ms. Holt to date lias received nothing from Respondent and on September 23, 1992, went to the courthouse and obtained a copy of pertinent information from the court files.
“17. Ms. Holt has subsequently hired another attorney, gone back to court with a new attorney, and obtained increased child support.
“18. Respondent has neither returned nor offered to return the $160 retainer to Ms. Holt.”
COUNT III
“19. The complainant in this case is Gay Marie Brown-Francisco. On June 14, 1991, she entered into a fee agreement with Respondent [citation omitted] wherein Respondent was to institute a divorce petition on Ms. Brown-Francisco’s behalf.
“20. On June 14, 1991, Ms. Brown-Francisco paid her check for $200 to Respondent together with a check for filing fees in the amount of $97; subsequently, in September of 1991 she paid the remaining balance of the retainer of $195 to Respondent.
“21. As of June 14, 1991, as well as many months before that date Ms. Brown-Francisco was, and to this date remains, a resident of the State of Missouri.
“22. In February of 1992 Ms. Brown-Francisco called Respondent to inquire why her husband had not been served with the divorce petition. At that time Respondent told her that her check for filing fees was stale and the court would not accept it, and he requested a new check.
“24. On September 1, 1992, Respondent told Ms. Brown-Francisco for the first time that he could not file the divorce in Missouri.
“25. In September of 1992 Respondent admitted that he had not yet filed the divorce petition. Respondent notified Ms. Brown-Francisco that he would send her retainer back to her less the amount of his fees for the work he had done. Ms. Brown-Francisco asked for her files to be returned along with the check, but to date she has not received either a check or any papers or files from Respondent.
“26. Throughout this period of time, on several occasions Ms. Brown-Francisco and various family members went to Respondent’s office to inquire as to the status of the matter. Respondent repeatedly replied, ‘these things take time.’
“27. At some point Respondent advised Ms. Brown-Francisco that she was not entitled to the refund of the fees she had paid to him, likening the situation to a situation where the patient went to the hospital and died, but would still owe fees for services rendered.”
The panel concluded that respondent violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.16(d), 3.3(a)(1) (1993 Kan. Ct. R. Annot. 314), and 8.4(d) and (g), and Supreme Court Rule 207(a) and (b). The panel found numerous aggravating factors and no mitigating factors. The panel recommended disbarment, stating:
“The panel finds that the Respondent has repeatedly neglected client affairs to the extreme detriment of his clients, has failed to keep his clients advised, has failed to make any restitution, has exhibited no remorse but rather refused to recognize his wrongful conduct, and has generally engaged in a pattern of misconduct and neglect. Respondent also failed to disclose to a District Court Judge that he was on inactive status at a time when he was actively practicing law under that Judge’s supervision. Considering the multiple offenses and the pattern of misconduct and neglect that resulted and the Respondent’s substantial experience in the practice of law, taking into consideration the Standards For Imposing Lawyer Sanctions as developed by the American Bar Association Center for Professional Responsibility, and the opinions of the Kansas Supreme Court in State v. Scott, 230 Kan. 564 [, 639 P.2d 1131] (1982), and State v. Martin, 231 Kan. 481 [, 646 P.2d 459] (1982), the panel recommends that pursuant to Supreme Court Rule 203(a)(1) [1993 Kan. Ct. R. Annot. 162], that the Respondent be disciplined by disbarment.”
Respondent did not file exceptions to the report of the hearing panel. He failed to appear before this court in person or by counsel. This court, having considered the record herein, concurs with and adopts the panel’s findings, conclusions, and recommendations .
It Is Therefore Ordered that Jeffrey F. Spears be and he is hereby disbarred from the practice of law in Kansas, and his license to practice law is hereby revoked.
It Is Further Ordered that the clerk of the appellate courts strike the name of Jeffrey F. Spears from the roll of attorneys licensed to practice law in the State of Kansas and that respondent shall comply with the provisions of Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187) and pay the costs of this proceeding, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Holmes, C.J.:
The Kansas Department of Social and Rehabilitation Services (SRS) appeals from a judgment of the district court holding Darrell E. Myers, Jr., was the beneficiary of a discretionary trust and that the assets of the trust could not be considered as resources available to Myers in determining whether he was eligible for medical assistance. The Court of Appeals affirmed the judgment of the district court in an unpublished decision decided May 28, 1993. We granted the pe tition for review of SRS and now affirm the Court of Appeals and the district court.
The facts are not in dispute. In 1981, Caroline H. Myers executed her will, which provided for a trust for the care, support, and maintenance of her son, Darrell E. Myers, Jr. She bequeathed the sum of $110,000 to the trust. Upon her son’s death, the principal and any undistributed income were to be distributed to Caroline’s daughter and granddaughter, or the survivor thereof. Caroline H. Myers died in 1989. The trust was funded on November 20, 1989.
Darrell E. Myers, Jr., had been receiving public medical assistance from the State prior to the death of Mrs. Myers and the funding of the trust in 1989. Myers had apparently suffered from severe mental and physical disabilities for several years although the record does not indicate when he began receiving public assistance. In July of 1990, SRS terminated Myers’ medical assistance when he failed to return an annual eligibility review form. Myers reapplied for assistance in November of 1990, but SRS denied the application, claiming Myers had resources which exceeded the eligibility level established by SRS regulations. The denial notice stated that assets held in trust for Myers were considered available to meet his medical needs.
After several reapplications • and denials, Myers appealed the SRS decision of October 25, 1991, denying him medical assistance. The decision of SRS was affirmed by the administrative hearing officer on January 6, 1992, and his decision was affirmed by the State Appeals Committee on March 24, 1992.
In April of 1992, Myers filed a petition for judicial review. The district court, after reviewing the record and hearing arguments of counsel, issued its judgment finding the trust established in Caroline H. Myers’ will to be a discretionary trust. Because neither the principal nor income were available to Myers, SRS could not consider the trust assets in determining Myers’ eligibility for public medical assistance. SRS timely appealed the district court’s decision, which was affirmed by the Court of Appeals.
The issue before us on review is whether the district court and Court of Appeals erred in determining that the Myers trust is a discretionary trust in which the assets are considered unavailable to Myers for the purpose of determining his eligibility for public medical assistance. The question on appeal is the meaning and intent of the trust language set forth in Caroline H. Myers’ will. Our decision will control whether SRS may consider the trust principal and income “available” for purposes of determining Myers’ eligibility for public medical assistance.
The will of Caroline H. Myers provides in pertinent part:
“In the event my husband does not survive me tiren all tire rest, residue remainder of my property, of which I shall die seized or possessed, shall be divided and set apart by my Executors into the following shares:
“I) The sum of one hundred and ten thousand ($110,000.00) dollars in trust to my trustee hereinafter named on the terms and conditions hereinafter stated for the lifetime use and benefit of my son, Darrell E. Meyers [sic], Jr.
“A) In the event my son predeceases me I direct my Executor to divide his bequest equally and distribute it to nry daughter and granddaughter or the survivors of them. In the event my granddaughter predeceases me, I direct my Executor to distribute her bequest to my daughter. In the event my daughter predeceases me, I direct my Executor to distribute her share to my granddaughter.
“B) During my son’s lifetime, my trustee shall hold, manage, invest and reinvest, collect the income there from [sic;] any [sic] pay over so much or all the net income and principal to my son as my trustee deems advisable for his care, support, maintenance, emergencies and welfare. At my son’s death I direct this trust for his benefit be terminated and the principal and any undistributed net income be distributed in accordance with paragraph A above.
“FIRST: I hereby name and appoint the Overland Park State Bank and Trust Company of Overland Park, Kansas as my trustee.
“SECOND: The principal of the trust hereinabove created and the interest resulting herefore [sic] while in the hands of the Trustee shall not be subject to any conveyance, transfer or assignment, or be pledged as security for any debt by the beneficiary, and the same shall not be subject to any claim by and [sic] creditor of the beneficiary through legal process or otherwise.” (Emphasis added.)
K.S.A. 1992 Supp. 39-708c (b) grants the Secretary of SRS the power and duty to determine general policies and to adopt rules and regulations relating to the forms of social welfare administered by SRS. K.S.A. 1992 Supp. 39-709(e) provides that medical assistance shall be granted to residents whose income and resources do not exceed the levels prescribed by the Secretary. K.A.R. 30-6-106 sets forth the general rules for consideration of resources and reads in relevant part:
“(c)(1) Resources shall be considered available both when actually available and when the applicant or recipient has the legal ability to make them available. A resource shall be considered unavailable when there is a legal impediment that precludes the disposal of the resource. The applicant or recipient shall pursue reasonable steps to overcome the legal impediment unless it is determined that the cost of pursuing legal action would be more than the applicant or recipient would gain, or the likelihood of succeeding
in the legal action would be unfavorable to the applicant or recipient.”
Pursuant to K.A.R. 30-6-107, an individual having non-exempt resources in excess of $2,000 is not eligible for public medical assistance.
The sole issue before this court is the interpretation, as a matter of law, of the meaning and intent of the language used by Caroline H. Myers in the trust provisions of her will. Both parties confine their arguments primarily to the language which reads:
“During my son’s lifetime, my trustee shall hold, manage, invest and reinvest, collect the income there from [sic] any [sic] pay over so much or all the net income and principal to my son as my trustee deems advisable for his care, support, maintenance, emergencies and welfare.”
In construing the Caroline H. Myers trust language, our determination is directed to the specific language used by the testatrix in the document now before the court. While we are concerned with the construction of the specific language in this particular will, there are certain fundamental rules and principles to be considered and applied. Those rules were summarized in In re Estate of Ellertson, 157 Kan. 492, 496-97, 142 P.2d 724 (1943), as follows:
“There is no occasion for employing any rules of judicial construction where the intention is expressed clearly and unequivocally in the will [citation omitted]. The will is to be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the purposes of the testator as gathered from the entire will, and to effectuate rather than defeat the intention of the testator. [Citations omitted.] Controlling significance is not to be given to one of the terms of devise or bequest and other terms ignored. [Citation omitted.] The court must put itself as nearly as possible in the situation of the testator at the time he made the will and from a consideration thereof and the language used in every part of the will, determine the purposes and intentions of the testator [citation omitted]. All of the above rules are only phases of the fundamental rule that the intention of the testator is to be gathered from the will as a whole and that intention must prevail if it is consistent with the rules of law [citation omitted]. ... It is also to be borne in mind that a will speaks from the time of the testator’s death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing.”
In In re Estate of Hannah, 215 Kan. 892, 897, 529 P.2d 154 (1974), this court stated:
“The paramount rule of construction in the interpretation of provisions in a will, to which all other rules are subordinate, is that the intention of the testatrix as garnered from all parts of the will is to be given effect, and that doubtful or seemingly inaccurate expressions in the will shall not override the obvious intention of the testatrix. [Citations omitted.] In construing a will the court should place itself as nearly as possible in the situation of the testatrix when she made the will, and from such a consideration and from the language used in every part of the will the court should determine as best it can the purposes and intentions of the testator as gleaned from the language used.”
SRS contends that the Myers trust is a support trust which requires the trustee to inquire into the basic support needs of the beneficiary and provide for those needs. As such, SRS argues the trust is an available resource within the meaning of K.A.R. 30-6-106(c)(l).
Myers, on the other hand, argues that the language of the trust is unambiguous in its creation of a discretionary trust. Thus, the trust language gives the trustee full discretion to decide whether payments from the trust income or principal are advisable. Because the trustee has complete authority to withhold all trust assets, the trust is not an available resource for Myers. Additionally, the trustee of the Myers trust, although not a party to this action, maintains that pursuant to the terms of the trust, the trustee has a responsibility to the remaindermen as well as to Myers.
The Court of Appeals, in affirming the district court’s ruling that the Myers trust was discretionary and not an available resource of the beneficiary, relied primarily on this Court’s recent decision in State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 822 P.2d 1033 (1991) (Jackson II).
Both parties cite Jackson II as authority for their respective positions. In Jackson II, this court was similarly called upon to decide whether trust funds were an available resource for purposes of determining eligibility for public medical assistance. Car rie Jackson was the beneficiary of a trust fund created by her grandfather. During the period she was receiving nominal support from the trust, Jackson was also receiving public assistance benefits. The State contended that the trust fund providing support for Jackson was an available resource to her and was seeking reimbursement from Jackson, pursuant to K.S.A. 39-719b, for public assistance benefits paid to her in an amount in excess of $35,000.
In State ex rel. Secretary of SRS v. Jackson, 15 Kan. App. 2d 126, 803 P.2d 1045 (1990) (Jackson I), the Court of Appeals determined that the trust was purely discretionary in nature, and thus the trust assets were not an available resource to Jackson. However, in Jackson II, this court modified the Court of Appeals’ ruling, concluding that the language in the trust instrument treated the trust income differently from the trust principal. The Jackson trust read in relevant part:
“(A) During the lifetime of Carrie Conner Jackson, the Trustees, in their uncontrolled discretion, shall pay to Carrie Conner Jackson the net income of the Trust. In addition, the Trustees may pay to Carrie Conner Jackson, from the principal of the Trust from time to time, such amount or amounts as the Trustees in their uncontrolled discretion, may determine is necessary for the purposes of her health, education, support and maintenance.” 249 Kan. at 641.
In construing the language of the trust instrument, this Court reasoned:
“Stripped down, the provision states the Trustees shall pay the net income and, in addition, may pay from the principal. The payment of the net income is not tied to any determination of need as are payments from the principal.
“True, the term ‘in their uncontrolled discretion’ is used in the provisions relating to the payment of income and principal, but its usage in payment of income provisions is inconsistent with the ‘shall pay’ language except perhaps as to the form of the payment. . . . ‘Shall pay’ so interpreted results in the payment of income not being a discretionary trust provision.” 249 Kan. at 641-42.
The court concluded that the income of the trust was a resource available to Jackson but that the principal was not.
Although in Jackson II this court relied primarily upon the usage and meaning of the two terms “shall” and “may,” the court also raised legitimate social policy concerns in stating that “[p]ublic assistance funds are ever in short supply, and public policy demands they be restricted to those without resources of their own.” 249 Kan. at 644. While reliance on such public policy is appropriate in an applicable case, nothing in Jackson II indicates or implies that such policy overrides the intent of a testator or settlor if a discretionary trust is established.
SRS maintains that Jackson II is controlling of this case. Specifically, SRS argues that the phrase “as my trustee deems advisable” in the Myers trust is inconsistent with the language of “shall pay.” SRS contends that under the holding in Jackson 11, the “shall pay” language should control, limiting the trustee’s discretion to how and when payments are to be made. SRS maintains that the language in the Myers will creates a support trust, requiring the trustee to inquire into and provide for the basic support needs of the beneficiary.
In reaching its conclusions, SRS reads the questioned language of the will as if the words “shall” and “pay” must be read together without consideration of the subsequent language “as my trustee deems advisable.” We are not convinced such conclusion is justified when all the language is read and considered together.
Myers’ reliance on Jackson II is based upon obvious differences in not only the language of the Jackson and Myers trusts but also the manner in which similar language in the two documents was used. Both trusts use discretionary language, “as my trustee deems advisable” here, and as the trustee “may determine is necessary” in the Jackson trust. Also, both trusts use the non-discretionary term “shall” and in addition the Jackson trust used the word “may” in referring to payments from principal. Unfortunately, here the similarities end. Unlike the Jackson trust, the Myers language regarding income and principal is contained in the same sentence. Also, the nondiscretionary language, “shall”, and the discretionary language “as my trustee deems advisable”, occur in the same sentence. Thus, unlike the Jackson trust, the payment of both income and principal is tied to a determination of need and to the discretionary language “as my trustee deems advisable.”
This court first recognized the validity of discretionary trusts in Watts v. McKay, 160 Kan. 377, 162 P.2d 82 (1945). The issue presented in Watts was whether the plaintiff, a divorced wife whose former spouse was a beneficiary of a trust, could compel the trustee to satisfy a judgment for alimony. In concluding that the trust was discretionary in nature, the court cited with approval the Restatement of Trusts § 155(b) (1935):
‘If by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal. ... A trust containing such a provision as is stated in this section is a ‘discretionary trust’ and is to be distinguished from a spendthrift trust, and from a trust for support.’ ” 160 Kan. at 384.
In Watts, the trust provision in question read:
“ ‘I hereby direct such trustees to pay said Corwin Grant Watts, at such times as to them may seem necessary, such sums of money as shall in their judgment be necessary for the proper maintenance, support and education of said Corwin Grant Watts.’ ” 160 Kan. at 378.
In concluding that the will in Watts established a discretionary trust, this court held:
“Where, by the terms of a testamentary trust, legal title is vested in the trustee with full power to manage, control, sell and reinvest principal and income, and to pay to the beneficiary from time to time such sums as to the trustee seem necessary for the beneficiary’s maintenance, support, and education, and the trustee is authorized and directed to turn the trust estate over to the beneficiary only when in his judgment and discretion the beneficiary is capable of handling it, the corpus of the estate rightfully retained in the hands of the trustee cannot be reached by the divorced wife of the beneficiary to satisfy a judgment for alimony.” 160 Kan. 377, Syl. ¶ 1.
The Court of Appeals, in addition to its reliance on Jackson II, also cited Watts in support of its holding that the Myers trust is discretionary. Myers also relies heavily upon the decision in Watts. Conversely, SRS argues that any reliance on Watts is misplaced. SRS attempts to ignore the significance of Watts by distinguishing the facts of the case. However, while the facts of Watts and the instant case are vastly different, the language used is quite similar. Both trusts include nearly identical discretionary language (“as my trustee deems advisable” and “may seem necessary”) and identical nondiscretionary language (“shall”). Additionally, both trusts tie the terms together in one sentence based upon a determination of need. The Watts trust language of “may seem necessary” appears to apply to the determination to make payments whereas the amount of said payments are tied to the “shall in their judgment be necessary” language.
SRS also relies upon Godfrey v. Chandley, 248 Kan. 975, 811 P.2d 1248 (1991), asserting in its brief “where a trust provision directs the trustee to pay the net income of the trust to a named beneficiary as is necessary for her support, health and maintenance . . . , the trustee shall pay the beneficiary’s necessary expenses without consideration of the beneficiary’s independent income.” The Chandley trust provided for the care and support of the testator’s widow and the applicable language read:
“B. The main purpose of the trust is to provide for the support, health and maintenance of my wife, Peggy Chandley, during her lifetime. The trust estate sháll pay, monthly or at such intervals as may be agreed upon by the Trustee and my Wife, during the period of the trust such portion of the net income from the trust as may be necessary for her support, health, and maintenance. There shall be no invasion of principal.” 248 Kan. at 978.
The widow, Peggy Chandley, sought payment from the trustee of all “sums needed or desired by her for support, health and maintenance.” There was no discretionary provision in the trust language relating to the duty to pay and apparently Mrs. Chan-dley had personal income which could pay some or all of her costs of living. We held:
"Under the facts of this case, the testator’s intent can be ascertained solely from the language of the testamentary trust. A trust provision which directs the trustee to pay the net income of the trust to a named beneficiary as is necessary for her support, health, and maintenance is not ambiguous. The trustee shall pay the beneficiary’s necessary expenses without consideration of the beneficiary’s independent income.” 248 Kan. 975, Syl. ¶ 4.
The reliance of SRS upon Chandley is misplaced. There was no language in the Chandley trust which vested discretion in the trustee as to whether to pay income and the only limitation was based upon what was necessary. The trustee was directed to pay “such portion of the net income from the trust as may be necessary for her support, health, and maintenance.” The court stated:
“We hold the trustee shall pay Peggy support, health, and maintenance for the period of her natural life irrespective of her individual income. The testator obviously intended to provide maintenance for his wife for her life. His provision is limited only by what is necessary.” 248 Kan. at 982.
While all of the foregoing cases cited and relied upon by one or both parties are instructive, they are not determinative of the trust language now before this court. They do illustrate that although there are certain guiding principles and rules to be applied by any court, in the final analysis ■ each case depends upon its own particular facts and language. The same may be said of the cases from other jurisdictions cited by the parties in support of their respective arguments. As we stated in In re Estate of Lehner, 219 Kan. 100, 103, 547 P.2d 365 (1976): “Since each case must stand on its own peculiar facts any guidance to be gained by a review of prior cases-is necessarily of a limited nature.”
We now turn again to the specific language and intent of the Myers trust. In examining the language in the will of Caroline H. Myers it appears that she established the trust primarily for the care and support of her son. Specifically, the instrument states, “my trustee shall hold, manage, invest and reinvest, collect the income there from [sic] any [sic] pay over so much or all the net income and principal to my son as my trustee deems advisable for his care, support, maintenance, emergencies and welfare.”
SRS contends that the word “shall” applies equally to the management of the trust, and the direction to pay, as well as to the language establishing the purposes for which the trust funds are to be paid. However, as Myers maintains, it is arguable that the word “shall” only applies to holding, managing, investing and reinvesting, and the collection of income; and that the balance of the sentence gives the trustee complete discretion to determine whether funds are to be paid out for Myers’ support and maintenance.
The trial court in determining that the Myers will established a discretionary trust concluded:
“The trust created pursuant to the Will of Caroline H. Myers, in which Darrell E. Myers, Jr. is the beneficiary, is a discretionary trust. The trust provides that the trustee ‘shall . . . pay over so much or all the net income and principal as (it) deems advisable’ for the care, support, maintenance, emergencies and welfare of Mr. Myers. It is clear that the trustee has discretion as to what, if any, of the trust funds are to be paid to or for the benefit of Mr. Myers. The Court is not persuaded by the argument of Respondent that the word ‘shall’ mandates the trustee to make payments to Mr. Myers. Once the trustee decides, in its discretion, to release funds to Mr. Myers, it is at that point that it ‘shall’ make the payment; until such discretionary determination is made, however, the trustee is under no duty to pay any portion of the net income or principal to Mr. Myers. The trustee is given the discretion to pay over ‘so much or all’ of the trust funds to Mr. Myers, which clearly indicates that the trustee is under no duty to pay a specific sum or any. sum at all. It is therefore the conclusion of the Court that the trust .established by Caroline H. Myers is a discretionary trust and not an ‘available resource’ that can be used to determine eligibility for state assistance, until such trust funds are actually paid to and received by Darrell E. Myers, Jr.”
We agree with the trial court’s ■ reasoning. The Myers trust directs the trustee to pay out so much of the income and principal as, in the trustees’ discretion, it deems advisable for Myers’ support. We conclude this language creates a discretionary trust. The nondiscretionary language of “shall” pertains primarily to the management functions of the trust and does not control, or override the discretionary language of “as my trustee deems advisable,” which pertains to whether payment of net income or principal will be made at all and, if so, the amount and purpose of any such payment. Neither the beneficiary nor any creditor can compel the trustee to pay any trust income or principal to the beneficiary, and SRS may not consider the trust assets to be resources available to Myers in determining whether Myers qualifies for medical assistance.
Our determination would appear to be consistent with the intent of Caroline H. Myers. In her will she directs the trustee at the death of her son to distribute “the principal and any undistributed net income” to the remaindermen. This language indicates that Caroline H. Myers did not presume that the trust principal would necessarily be exhausted. The record reveals that Myers was receiving public assistance prior to the death of his mother and she undoubtedly was aware of such assistance. At the time of this action, Myers was a resident of Johnson County Residential Care Facility. The record indicates that in 1991, the daily charge for Myers’ care was $75 and there was additional monthly expense of approximately $600 for prescription medications. At that rate of expense, the trust fund would be exhausted in less than three and one-half years. We do not believe that exhausting the trust funds in this manner would be consistent with the purpose of the Myers trust.
At the time of Caroline H. Myers’ death, her son was 50 years of age. The Myers trust was established to assist in the care and support of Myers during his “lifetime.” This purpose cannot be met by a complete exhaustion of the trust assets in a short period of time or if complete discretionary authority was not placed in the trustee. Because the Myers trust is discretionary in nature, the trustee is allowed complete and uncontrolled discretion to allocate trust funds if and when it deems advisable. Only if it can be demonstrated that the trustee is abusing its discretion by acting arbitrarily, dishonestly, or improperly may the trustee be required to distribute funds. See Jennings v. Murdock, 220 Kan. 182, 201, 553 P.2d 846 (1976).
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Ter Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Bradley A. Pistotnik, an attorney admitted to the practice of law in Kansas. Two formal disciplinary complaints, case No. B5344 and case No. B5357, were brought against Pistotnik based on a pattern of repeated criminal offenses and on his conduct in connection with a personal injury action. A hearing panel of the Kansas Board for Discipline of Attorneys (Board) found that Pistotnik violated MRPC 8.4(b), (d), and (g) (1993 Kan. Ct. R. Annot. 347) (misconduct) in connection with case No. B5344, and MRPC 1.3 (1993 Kan. Ct. R. Annot. 263) (lack of diligence), MRPC 1.4 (1993 Kan. Ct. R. Annot. 267) (lack of communication), and MRPC 8.4(c) and (g) (misconduct) under case No. B5357. The panel also found that Pistotnik’s conduct in connection with Count I of the second complaint may give rise to a violation of MRPC 4.1(a) (1993 Kan. Ct. R. Annot. 327) (untruthfulness in statements to others).
The panel considered evidence in mitigation and unanimously recommended that Pistotnik be disciplined by suspension from the practice of law for a period of one year under Supreme Court Rule 203(a)(2) (1993 Kan. Ct. R. Annot. 162). Pistotnik has filed exceptions to the conclusions of law and the discipline recommended. On October 22, 1993, Pistotnik filed a motion to consider letters from seven Wichita members of the Kansas Bar written to support his application for admission to the Missouri Bar in 1991. Pistotnik does not take exception to the panel’s findings of fact.
We have examined the record and find substantial competent evidence to support the panel’s findings of fact as modified in Finding 2(d) (case No. B5344) and the conclusions of law:
“CASE NO. B5344
“FINDINGS OF FACT
“1. Respondent is an attorney at law. . . .
“2. In March of 1990, Respondent applied to be admitted to practice law on grounds of reciprocity in the State of Missouri. In the application for admission to practice, Respondent was asked to provide information regarding criminal complaints filed against him. Respondent identified the following criminal charges and/or convictions:
“(a) The Respondent was convicted of Public Intoxication in Indianapolis, Indiana, in August of 1979 and fined $47.00.
“(b) The Respondent was charged with disorderly conduct resulting from a fight with a fellow law student at the University of Kansas in 1979. The matter was dismissed by the City Prosecutor of Lawrence, Kansas, on or about November 17, 1979.
“(c) The Respondent was charged with driving under the influence of alcohol on September 6, 1986, in Wichita, Kansas. The matter was disposed of by diversion agreement and ultimately was formally dismissed after Respondent complied with tire conditions of his diversion agreement.
“(d) The Respondent was charged with three counts of battery in December of 1987 arising out of a fight in a Wichita night club after three men made advances to his ex-wife. Respondent pled no contest to [one count] of battery and a reduced charge of disorderly conduct and was fined $100.00 and placed on probation by the Sedgwick County District Court on August 29, 1988. [During oral argument, counsel for the Disciplinary Administrator stated that the findings should reflect one count of battery and one count of leaving the scene rather than two counts on each charge. We have done so in this section as well as in section (f) below.]
“(e) In January or February of 1988, Respondent was charged with battery of a former client. The case was tried in the Wichita Municipal Court and respondent was acquitted.
“(f) On May 9, 1988, respondent pled no contest to [one count] of leaving the scene of an automobile accident and paid a fine of $200.00. His driver’s license was temporarily restricted for 90 days by the Wichita Municipal Court. The civil claim arising from the accident was later settled by his insurance carrier, State Farm, for approximately $12,000.00.
“(g) In May of 1988, Respondent was charged in Butler County District Court for an alleged terroristic threat against a former secretary. The charge was dismissed with prejudice in Respondent’s favor.
“3. At the time of his application to the Missouri Bar in March of 1990, Respondent represented he had obtained psychological counseling with Dr. John Valusek in Wichita, .Kansas, beginning in 1988. He offered a letter to the Missouri Bar from Dr. Valusek in March of 1990 that his prior abuse of alcohol and emotional problems had been- resolved through counseling.
“4. Subsequent to the filing of Respondent’s application with the Missouri Bar, he has been convicted of two additional misdemeanors as follows:
“(a) On July 26, 1991, Respondent pled guilty to Disturbing the Peace in violation of Ordinance No. 26.13 in tire case of City of Kansas City, Missouri v. Bradley Pistotnik, filed in the Circuit Court of Jackson County, Missouri. The disturbing the peace charge was reduced from the original charge of inflicting bodily injury in violation of Ordinance No. 26.13.2.
“(b) On December 5, 1991, Respondent was convicted by a jury of Class B Misdemeanor Battery in State of Kansas v. Bradley A. Pistotnik, Case No. K-67383, filed in Johnson County, Kansas, arising from charges in violation of K.S.A. 21-3412.
“Both of the above charges arose out of a domestic dispute with his second ex-wife. Respondent was ordei-ed to be imprisoned for a period of six months and-to pay costs by the Honorable William A. Cleaver, District Court Judge in Case No. K-67383 on or about April 10, 1991. Respondent served ten days in jail and was then granted probation for a period of 24 months beginning on or about April 21, 1992.
“5. On or about July 14, 1992, Respondent was granted permission in Case No. K-67383 to modify his probation to allow him to transfer his residence to the State of Florida. Respondent remains under probation with the State of Kansas and resides in the State of Florida.
“CONCLUSIONS OF LAW
“Respondent’s actions and behavior do amount to a violation of MRPC 8.4(b)(d) & (g). While the charges and convictions against Respondent which occurred before March 1, 1988, are illusti-ative of his long-standing pattern of behavior problems, they are remote in time and the panel finds no violation of Canon 1 and that claim is dismissed.
“CASE NO. B5357
“FINDINGS OF FACT
“1. On May 1, 1988, Martha Newman was injured in an automobile accident in Overland Park, Kansas. Ms. Newman retained the Respondent to pursue a personal injury claim for her.
“2. On November 22, 1989, Alan Lundquist, subrogation representative of American Family Insurance Company, wrote to Respondent to inquire whether he was willing to protect the company’s personal injury protection lien of $4,146.00 on Martha Newman for an attorney’s fee of one-third or $1,382.00.
“3. On December 5, 1989, Respondent wrote to Mr. Lundquist and stated he was agreeable to protecting American Family’s personal injury protection lien at the rate of one-third recovery. Respondent further advised Mr. Lundquist if he had questions to contact Respondent.
“4. Respondent filed a personal injury action on Ms. Newman’s behalf entitled Martha Newman v. David W. Jordan, Case No. 90C4496 in the District Court of Johnson County, Kansas, in April of 1990. The Petition sought damages for pain and suffering, mental anguish, bodily injury, medical expenses, loss of time, economic loss, lost wages, permanent disability and loss of consortium.
“5. Respondent filed a Response to the Request for Statement of Monetary Damages on behalf of Ms. Newman in which plaintiff requested a total of $200,000.00 in damages itemized as follows:
Personal Injuries $ 30,000.00
Pain and Suffering $ 40,000.00
Temporary Disability $ 25,000.00
Permanent Disability $ 35,000.00
Loss of Wages or Income $ 40,000.00
Loss of Consortium $ 30,000.00
“6. Both parties engaged in discovery by serving Interrogatories and Requests for Production.
“7. On or about August 3, 1990, Ms. Newman’s case was placed on the Johnson County District Court’s dismissal docket. The Notice of Dismissal dated August 3, 1990, was placed in Respondent’s firm’s assigned Johnson County Courthouse mailbox. The Notice of Dismissal also reflected a Certificate of Mailing dated August 17, 1990, to counsel by Barbara Holman, Chief Clerk of the District Court.
“8. The Respondent failed to reply to the Notice and Ms. Newman’s case was dismissed on September 7, 1990.
“9. On March 13, 1991, Mr. Lundquist wrote to Respondent and requested information regarding the status of Ms. Newman’s case. Respondent did not reply to this inquiry.
“10. On March 19, 1991, Respondent made a request to Kenneth E. Holm of Boddington & Brown, Chartered, Kansas City, Kansas, counsel for defendant, David W. Jordan, to stipulate to reinstatement of Ms. Newman’s case. Defense counsel refused to allow the case to be reinstated because the underlying two (2) year statute of limitations had expired and because more than six (6) months had passed since the case was dismissed for lack of prosecution.
“11. On or about March 21, 1991, Respondent called Ms. Newman and asked her to come to his office to discuss the case. Ms. Newman went to tire Respondent’s office and was provided with a letter explaining the status of her case. In the letter, Respondent stated to Ms. Newman that the Johnson County District Court had filed by computer a dismissal of her case for lack of prosecution and his office did not receive any notice of the Court’s intent to dismiss. Respondent further indicated the Court did not comply with Rule 6 of the Johnson County District Court rules and suggested Ms. Newman had the option of filing a motion to have the dismissal set aside and place the case back on [the] docket. As another alternative, Respondent indicated in his letter to Ms. Newman that she could let her claim be dormant and his firm would be willing to pay her $4,000.00. He further advised her American Family held a PIP lien in the amount of $4,146.00 and his firm would be responsible for payment of the lien and would hold her harmless for the same if she would sign a final release of any and all claims she had against the firm. Also present during the meeting with Ms. Newman was Respondent’s law partner, Robert Gould.
“12. On that same day, March 21, Ms. Newman accepted $4,000 in cash from Respondent and executed a Release prepared by Respondent and witnessed by Mr. Gould. The Release indicates that the settlement will be confidential. It further indicates Ms. Newman was advised of her right to have independent counsel review the Release and she waived that right.
“13. On July 11, 1991, Alan Lundquist wrote the Respondent and by second request asked for a status report on Ms. Newman’s litigation. Respondent did not reply to this inquiry.
“14. On July 25, 1991, Mr. Lundquist wrote to Respondent and again requested a status report. By letter dated August 7, 1991, Respondent replied to Mr. Lundquist and stated ‘the matter was dropped and no payments have been obtained from the tortfeasor to Ms. Newman. Therefore no subrogation claim can be repaid.’
“15. The Respondent misled American Family- in his correspondence to them by stating Ms. Newman’s case had been dropped when it had been dismissed for lack of prosecution. Respondent failed to inform American Family that he had agreed with Ms. Newman to reimburse American Family for its PIP lien and had agreed to indemnify Ms. Newman for any claims that American Family might make against her. Respondent failed to protect American Family’s personal injury lien as he agreed to do.
“16. The Complaint against Respondent was initiated by an anonymous letter. By letter dated March 12, 1992, Respondent advised Paula B. Martin, Deputy Disciplinary Administrator, that his office was not furnished with tire computer generated dismissal notice of Ms. Newman’s Petition.
“17. Mr. James O’Hara was assigned by the Johnson County Bar Association to investigate the Complaint. Mr. O’Hara met with Respondent on June 8, 1992. Respondent told Mr. O’Hara that an employee of his firm responsible for picking up pleadings and orders from the firm’s assigned courthouse mailbox in Johnson County failed to internally process the dismissal order in question after it had been received.
“18. Mr. O’Hara also met with Ms. Newman on June 8, 1992. Ms. Newman -stated to Mr. O’Hara she was under the impression that Mr. Gould was present at her meeting with Respondent on March 21, 1991, as independent counsel referred to in the Release. Ms. Newman voiced no displeasure regarding her settlement with Respondent and has filed no Disciplinary Complaint against him.
“19. On September 30, 1991, Alan Lundquist was first advised that Ms. Newman’s Petition had been dismissed by the Court for lack of jurisdiction through a telephone conversation with Stanton Hazlett, Deputy Disciplinary Administrator. Demand was made by American Family for its lien. American Family received Respondent’s check in the amount of $2,764.00 constituting two-thirds of its PIP lien as full restitution on February 8, 1993, the day before this hearing. American Family has filed no Disciplinary Complaint against Respondent.
“CONCLUSIONS OF LAW
“Respondent’s actions in both counts do amount to a violation of MRPC 1.3, MRPC 1.4 and MRPC 8.4(c) & (g). Respondent’s actions may also give rise to a violation of MRPC 4.1(a) in Count One. The panel finds no violation of MRPC 1.1, 1.7 and 3.2 in either Count and those claims are dismissed.”
On May 22, 1992, we denied a motion requesting an order to show cause filed by the Disciplinary Administrator’s Office. The motion was filed as a result of Pistotnik’s convictions, and it requested that Pistotnik be temporarily suspended from the practice of law under Supreme Court Rule 203(b) (1993 Kan. Ct. R. Annot. 162). We recognized the serious nature of Pistotnik’s conduct, but a majority of the court declined to impose temporary suspension because a majority did not find that the conduct was so serious or egregious as to merit temporary suspension of respondent from the practice of law pending the hearing before the panel of the Board.
The panel considered the following evidence in mitigation prior to making a discipline recommendation:
“MITIGATION
“. . . In reaching its decision, the panel has considered the following findings of fact:
“1. Respondent will be 37-years old on March 10, 1993. He graduated from the University of Kansas Law School in 1981. He was admitted to the bar of the state of Oklahoma and the bar of the state of Kansas in 1982.
“2. Respondent has been engaged in the private practice of law continuously since 1981 up until July 25, 1992. He maintained law offices with family members and other associates in Wichita, Kansas, and the Kansas City Metropolitan area. He belongs to the Kansas and Oklahoma Bar Associations. His brother and sister continue to practice law in Wichita, Kansas.
“3. Respondent has suffered from health problems including treatment for alcoholism and emotional problems and two heart attacks during the last six years.
“4. Respondent married his present wife, Candice, on July 26, 1992, and the two reside [in] Tampa, Florida. Respondent and his wife own two marketing/consulting companies [that put] ... on seminars for Florida attorneys in the areas of practice development in civil litigation such as personal injury/malpractice cases. Respondent has published a book, Marketing for Lawyers, and produced videos dealing with lawyer advertising and marketing as well.
“5. Candice Messina Pistotnik testified she and Respondent are enjoying a happy marriage free from the turmoil Respondent had with his earlier wives. They go to counseling at least once a month together and Respondent has been drug and alcohol free since their marriage.
“6. Respondent testified in mitigation in his own behalf that he is complying with all conditions of his probation including AA sessions and aftercare therapy. Respondent told the panel he would like to return to Kansas to practice law with his brother and sister in Wichita and remains in touch with them on a regular basis for consultation]. Pie further indicated he did not feel his personal problems had any impact on his ability to practice law. Since his move to Florida, he has had time to reflect on his past mistakes and is learning to deal with normal stress in his life and learning how to avoid destructive, stressful situations.
“7. Respondent submitted a letter from Thomas E. Kiernan, MSN, ARNP, in mitigation. Mr. Kiernan has been seeing Respondent in weekly psychotherapy sessions since November 16, 1992, and reports satisfactory compliance with the demands of his probation and positive efforts to establish a successful life and overcome his past difficulties.
“8. Respondent received prior discipline and was informally admonished In the Matter of Bradley A. Pistotnik, Case No. W3374 (1985) involving a violation of DR 7-104(A)(l) [communicating with one of adverse interest] and In the Matter of Bradley A. Pistotnik, Case No. B4999 (1991) involving violations of MRPC 1.15(a) [safekeeping property] and MRPC 1.4(b) [communication].”
The issues presented by Pistotnik are: (1) Were his actions in connection with case No. B5344 of such a nature that they constituted a violation of MRPC 8.4 (b), (d), and (g); (2) were his actions in connection with case No. B5357 of such a nature that they constituted a violation of MRPC 1.3, 1.4, and 8.4 (c) and (g); and (3) is the discipline recommended by the panel reasonable?
Standard of Review
“In Stale v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.’ In State v. Ziegler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of die evidence, or where the evidence consisted of sharply conflicting testimony.’ See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).” In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).
Case No. B5344
Pistotnik argues that the traffic conviction does not violate MRPC 8.4(b), (d), or (g) because the conduct does not (1) reflect on his honesty, trustworthiness, or fitness to practice law; (2) is not prejudicial to the administration of justice; and (3) does not adversely affect his fitness to practice law. Pistotnik observes that in the past the panel has declined to extend the application of MRPC 8.4(d) and (g) to a DUI offense, citing In re Morris, 251 Kan. 592, 834 P.2d 384 (1992).
Pistotnik believes the misdemeanor offense issue was addressed in the show cause order of May 22, 1992. He emphasizes that we examined all of his convictions, including those on which a disciplinary claim was dismissed by the panel because they were remote in time, and denied temporary suspension. Respondent’s reliance on our temporary order is misplaced. At the time of the temporary order, a majority of this court reasoned that temporary suspension pending the hearing before the panel was not warranted. We are now reviewing the panel’s report.
Pistotnik advances Matter of Higgins, 105 App. Div. 2d 462, 480 N.Y.S.2d 257 (1984), as providing further support for his view that the misdemeanor violations did not involve moral turpitude or prejudice the administration of justice. In Matter of Higgins, a New York court considered the relationship between the crime of possession of marijuana and disciplinary rules relating to professional conduct. The New York court reasoned that the possession crime did not involve an infringement of the moral sentiment of the community and did not disadvantage a client or impede or impair the quality, competence, reliability, and trustworthiness of the attorney’s professional conduct. 105 App. Div. 2d at 462-63. Pistotnik observes that we cited Matter of Higgins in In re Diehl, 243 Kan. 580, 581, 757 P.2d 732 (1988). Consequently, Pistotnik maintains that his convictions did not disadvantage a client, nor did they impede or impair his ability to fulfill his professional obligations in a competent and reliable manner. He believes that MRPC 8.4(b), (d), and (g) should not be applied under case No. B5344.
Pistotnik relies upon our cases of In re McKenna, 249 Kan. 215, 813 P.2d 929 (1991) (probation for one year for possession of marijuana); In re Smoot, 243 Kan. 589, 757 P.2d 327 (1988) (public censure for possession of cocaine); In re Diggs, 243 Kan. 587, 757 P.2d 326 (1988) (public censure for presenting false claims and unlawful deprivation of property); and In re Diehl, 243 Kan. 580 (public censure for possession of marijuana). He also turns to cases from other jurisdictions: People v. Senn, 824 P.2d 822 (Colo. 1992) (public censure appropriate where respondent, while intoxicated, fired a weapon above the head of his wife during an argument), and People v. Wallace, 837 P.2d 1223 (Colo. 1992) (three-month suspension where attorney assaulted his girlfriend causing severe bodily injury). Respondent contrasts the cases in which attorneys who committed crimes were disciplined by public censure with Committee on Prof. Ethics v. Patterson, 369 N.W.2d 798 (Iowa 1985), in which an attorney received a higher level of discipline. In Patterson, the attorney had beaten his girlfriend for approximately two hours. The Iowa court imposed a sanction of indefinite suspension with no possibility of reinstatement for three months. 369 N.W.2d at 800. Pistotnik contends that there is no evidence in the instant case that his battery involved the same degree of bodily injury as existed in Patterson.
Pistotnik insists that the testimony of his present wife proves he has taken constructive steps to resolve his problems.
The Disciplinary Administrator responds by highlighting the fact that a variety of Kansas cases, including those cited by Pis-totnik, serve as examples where we have disciplined attorneys under MRPC 8.4 for misdemeanor crimes.
The Disciplinary Administrator suggests that the comment to MRPC 8.4 provides guidance as to the type of illegal conduct that should be considered a violation of the Model Rules:
“Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.” MRPC 8.4, comment (1993 Kan. Ct. R. Annot. 347, 348).
We adopted the comments which accompany the Model Rules in the Prefatory Rule of Supreme Court Rule 226 (1993 Kan. Ct. R. Annot. 252).
The Disciplinary Administrator emphasizes that since August of 1988, Pistotnik has been convicted of four separate misdemeanor offenses which involved violent behavior and pled no contest in Wichita Municipal Court to the misdemeanor charge of hit and run in violation of a Wichita ordinance. The Disciplinary Administrator insists that Pistotnik’s pattern of repeated offenses constituted the type of violent conduct described in the MRPC 8.4 comments.
None of our cases have involved a situation where an attorney has been disciplined for misdemeanor convictions involving violence. The Disciplinary Administrator also cites People v. Wallace, 837 P.2d 1223, and Committee on Prof. Ethics v. Patterson, 369 N.W.2d 798, as authority for imposing suspension as the discipline for misdemeanor convictions involving violence.
The Disciplinary Administrator concludes with the observation that Pistotnik has failed to cite any cases which stand for the proposition that an attorney should not be disciplined for convictions involving violent behavior. The Disciplinary Administrator contends that both the Model Rule comment and Wallace refute Pistotnik’s contention that his convictions, which involved violence, do not reflect on his ability to practice law.
The panel considered and rejected Pistotnik’s claim that his convictions were personal matters unrelated to his legal practice. The panel explained that the argument might have been appealing to the panel if Pistotnik’s previous history involved a single DUI conviction or a non-injury arrest arising out of an isolated incident. The panel emphasized that Pistotnik has demonstrated an established pattern of longstanding behavior problems which adversely reflects on the legal profession as a whole and on Pistotnik’s fitness to practice law. We agree. The panel also was troubled by the fact that Pistotnik represented to Missouri Bar authorities that his prior abuse of alcohol and emotional problems had been resolved through counseling in 1990 and by the fact that his violent behavior surfaced again in 1991, resulting in two separate arrests and a jury conviction in Johnson County, Kansas. This pattern of behavior cannot be condoned.
We recently observed that “[p]ublic confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct.” In re Pomeroy, 252 Kan. 1044, 1050, 850 P.2d 222 (1993). Furthermore, “the overriding purpose of a disciplinary proceeding is the protection of the public.” In re Carson, 252 Kan. 399, Syl. ¶ 4. We agree with the panel’s view that Pistotnik’s pattern of conduct undermines his integrity as an officer of the court. We find that the facts support the panel’s conclusions.
Case No. B5357
Pistotnik concedes that Newman’s case was dismissed due to the negligent failure of his office to monitor the case, in violation of MRPC 1.3, and admits that he is responsible for what occurred in his office. Pistotnik claims he was not personally aware that the case was dismissed because “an associate had some responsibility over the case” but reasons that this fact should be considered in mitigation of the recommended discipline of suspension.
Concerning the finding that he violated MRPC 1.4, Pistotnik maintains that he had not entered into an attorney-client relationship with American Family, so the rule is not applicable because it applies to clients. Pistotnik says he agreed to protect the insurance company’s lien but did not represent American Family in filing any claim.
Pistotnik claims he did not violate MRPC 8.4(c) because his reply letter informing American Family that the matter had been dropped and that no payments were obtained from the tortfeasor merely stretched the truth by not stating that the case had been dismissed by the court. He maintains that the content of the letter was true on its face. He asserts that this is not a case of converting funds and emphasizes that he made full restitution to American Family.
Finally, Pistotnik reasons that the panel must have failed to find clear and convincing evidence that he violated MRPC 4.1(a), so he has not responded to this finding.
The Disciplinary Administrator believes that the reference to a possible violation of MRPC 4.1(a) under Count I in the Final Hearing Report is in error. The Disciplinary Administrator explains that if a violation of MRPC 4.1(a) occurred, it arose out of the facts as alleged in Count II of case No. B5357.
Concerning MRPC 1.3 and 1.4 violations, the Disciplinary Administrator contends that the findings are supported by the fact that Newman’s case was dismissed for lack of prosecution and that Pistotnik failed to advise her of the dismissal for a period of nearly seven months. Pistotnik’s signature was on all of the documents in the official court file.
The Disciplinary Administrator also maintains that the MRPC 8.4(c) and (g) violations under Count I are supported by the evidence. The Disciplinary Administrator suggests Newman was misled concerning the dismissal of the personal injury case. He emphasizes that the Final Hearing Report found that Pistotnik gave inconsistent explanations to his client, the insurance company, the Disciplinary Administrator’s Office, and the bar investigator concerning the dismissal of the case.
The Disciplinary Administrator observes that the panel determined that Pistotnik had entered into an attorney-client relationship with American Family. He believes that the overwhelming evidence supports the finding that Pistotnik violated MRPC 1.3 and 1.4. The Disciplinary Administrator asserts that we need not get bogged down by the question of Pistotnik’s relationship with American Family because the panel concluded that Pistot-nik’s misrepresentations would have violated MRPC 4.1 and 8.4(c) and (g) even if Pistotnik is not considered to have been American Family’s attorney.
The panel was not persuaded by Pistotnik’s argument that a former lawyer member of his firm had responsibility for the Newman file. The panel observed that this claim is not supported by the signature on the pleadings. The panel was troubled by Pis-totnik’s inconsistent explanations to the client, the insurance company, the Disciplinary Administrator’s office, and the bar investigator. The panel concluded that even if the attorney-client relationship did not exist with American Family, Pistotnik’s conduct in the course of dealing with American Family violated MRPC 4.1 and 8.4.
We agree with the Disciplinary Administrator’s contention that the attorney-client issue is not determinative. Whether such a relationship exists or not, the evidence supports the finding that Pistotnilc misrepresented the facts to American Family. We have reviewed the record and find that the panel’s findings are supported by the evidence. Pistotnik’s inconsistent explanations to Newman, American Family, the Disciplinary Administrator’s Office, and the bar investigator weigh heavily against Pistotnik’s contentions that he did not violate MRPC 8.4 and that the facts somehow mitigate the violations.
The Discipline Recommended by the Panel
Pistotnik believes the criminal conduct violations found in case No. B5344 do not justify suspension because they do not relate to his moral turpitude, trustworthiness, or fitness to practice law and did not directly involve clients or the administration of justice.
Pistotnik discusses the mitigating factors from State v. Scott, 230 Kan. 564, 572, 639 P.2d 1131 (1982), as relevant to case No. B5357: (1) whether restitution was made; (2) any statement by the complainant expressing satisfaction with restitution and requesting no discipline; (3) acknowledgement of the transgression and cooperation during the hearing.
Pistotnik accepts responsibility for his actions although he does not believe suspension from the practice of law for any period of time is warranted. Pistotnik emphasizes that he turned his life around after he served time in jail, is now enjoying a stable marital relationship, and is making further progress due to his therapy program. Pistotnik wishes to continue practicing law.
The Disciplinary Administrator accents the fact that the panel unanimously recommended the one-year suspension. The Disciplinary Administrator now recommends that Pistotnik be suspended indefinitely.
Our attention is directed to the ABA Standards for Imposing Lawyer Sanctions (1986). Section 4.62 of the ABA Standards suggests that suspension is appropriate when a lawyer knowingly deceives a client and causes injury or potential injury to that client. The Disciplinary Administrator points out that American Family may never have received the money to which it was entitled if the complaint against Respondent had not been filed and investigated.
The Disciplinary Administrator insists that several of the aggravating factors set out in Section 9.22 of the ABA Standards are applicable to Respondent. Respondent has: (1) prior disciplinary offenses; (2) exhibited a dishonest and selfish motive; (3) failed to acknowledge the wrongful nature of his conduct by stating that he had no legal obligation to inform American Family of the facts of the case because that company was not his client; (4) been admitted to practice law in Kansas since 1982 and has substantial- experience in the practice of law. The Disciplinary Administrator acknowledges Pistotnik’s payment of restitution to American Family but explains that under Section 9.4, forced or compelled restitution is a factor which is neither aggravating nor mitigating. Pistotnik paid the restitution the day before the disciplinary hearing.
The panel found Pistotnik’s progress in therapy to be encouraging but reasoned that given Pistotnik’s pattern of behavior, sufficient time has not elapsed to establish that he has permanently changed his behavior. Additionally, the panel emphasized that it could not ignore the series of Pistotnik’s violations of the disciplinary rules and past discipline imposed. The panel determined that the violations must be considered as a whole rather than as isolated events of minor significance. We agree with the panel’s characterization of Pistotnik’s conduct.
We reject Pistotnik’s claim that suspension for any period of time is unwarranted. The multiple violations of the Model Rules support a term of suspension.
It Is Therefore Ordered that Bradley A. Pistotnik be and he is hereby suspended from the practice of law in the State of Kansas for a period of one yes.r, in accordance with Supreme Court Rule 203(a)(2) (1993 Kan. Ct. R. Annot. 162) for his violations herein.
It Is Further Ordered that Bradley A. Pistotnik shall forthwith comply with Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187).
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of this action shall be assessed to the respondent.
Holmes, C.J., not participating.
Miller, C.J. Retired, assigned. | [
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The opinion of the court was delivered by
Six, J.:
This felony-murder case concerns the sufficiency of the evidence supporting a conviction of attempted aggravated robbery as the underlying felony and whether the trial court abused its discretion in denying defendant’s motion for a mistrial.
Watson Kevin Bradford appeals his convictions of felony murder (K.S.A. 1992 Supp. 21-3401[a][l]) and attempted aggravated robbery (K.S.A. 1992 Supp. 21-3301 and K.S.A. 21-3427). He asserts that the State failed to prove the underlying felony to establish the corpus delicti for felony murder. Bradford’s mistrial motion was based on asserted prejudice resulting from buttons depicting the victim’s photo being worn in the courtroom by the victim’s family and the appearance of a defense witness who was escorted to court from the jail wearing chains. We have jurisdiction under K.S.A. 1992 Supp. 22-3601(b)(l) (direct appeal where a defendant is convicted of a class A felony or if a maximum sentence of life imprisonment is imposed). We find no error and affirm.
Facts
The police responded to a 4:00 a.m. call and found Angela Conard’s body lying outside the rear door of the Lansing Pizza Hut where she was employed. Sergeant Smith, who investigated the scene, saw a bloodstain approximately 25 feet north of the back door in the parking lot and scuff marks on the ground. Bradford and the State agree that these scuff marks were consistent with the body being dragged back from the parking lot to the rear door.
Sergeant Smith observed a large amount of blood on the floor inside the Pizza Hut, creating a path to the back door. A stack of bills and two money bags were on the cash register. Angela’s purse and car keys were nearby. All doors and windows were secure. No signs of tampering were visible. The back door, which locked automatically, could be opened from the inside by pushing a “panic bar.” Clothing, fingerprints, blood samples, an ice pick, and the money were gathered as evidence at the crime scene and sent to the KBI for analysis. None of the fingerprints were identified as Bradford’s.
An autopsy was conducted by a forensic pathologist. He determined that death was caused by a gunshot wound to the chest. Additional gunshot wounds were identified in Angela’s right arm, chest, buttock, thigh, and left heel. Angela’s jaw was fractured.
The State explains that Angela’s duties included accounting for and securing the day’s receipts. Although Bradford was not employed at the Pizza Hut, he had worked there with Angela between 1988 and 1990. A Pizza Hut employee testified that on two occasions Bradford phoned to order a pizza and began cussing the employee. Angela intercepted the call. Angela told Bradford to quit harassing the employees. According to the employee, Bradford made a harassing call on August 16, three days before Angela’s death.
Bradford’s father testified that his .22 caliber RG pistol was stolen from the family home in Lan’sing between August 14 and August 20, 1990, while the family was on vacation. Bradford no longer lived with his father and did not accompany the family on vacation. The pistol and ammunition were the only items taken. Valuables such as money and electronic equipment were not disturbed. Bradford’s father told the officer who investigated the. burglary that the family members, including Bradford, knew where the pistol was kept and that he believed his son had taken the pistol. At trial, the father testified that he had never spoken to the investigating officers, nor had he voiced speculations to the police concerning the weapon. He testified that only his wife knew where the pistol was kept.
A Kansas Bureau of Investigation firearms examiner explained that the bullets recovered from Angela’s body were bullets which would be fired from a .22 caliber weapon. He stated that the manner in which the bullets were damaged was “typical of what we see with R.G.’s.” The examiner conceded that a number of other weapon models could not be eliminated as the murder weapon. The State never produced the actual murder weapon.
Bradford was arrested and charged with felony murder and attempted aggravated robbery. At trial, the State introduced Bradford’s extrajudicial admissions, including a statement given to the police by Tammy Thompson, Bradford’s girlfriend. Tammy described Bradford’s confession to the murder and attempted robbery. Tammy recanted the statement at trial. She testified that she had related “gossip,” giving the police “what they wanted to hear” in the original statement. Tammy explained that she did so because the police had threatened her, telling her that she “would lose everything, including [her] kids.” She said the police had contacted her on several occasions and at odd hours. According to Tammy, Officer Lincoln became her “constant companion.”
The State introduced Tammy’s three-page signed statement of her police interview, transcribed from the tape recording. Tammy testified that the last two pages were blank when she signed them. The Lansing Chief of Police admitted that Tammy could possibly have signed blank pages but explained that he did not believe that blank page signing had occurred.
The State also called two jailhouse informants to testify. Both of the informants provided a detailed account of Bradford’s confession. The content of each statement is essentially the same. Informant Brown testified that Bradford stated he had gone to the Pizza Hut to commit a robbery and had killed Angela. Bradford’s admission to Brown occurred in July 1991. Brown did not give a statement to the police until December 1991. Brown testified, however, that he notified the jailer in July. Bradford says that the jailer did not corroborate Brown’s claim. Brown was released from jail the day he gave the police his statement. He testified that he was not released because of the statement and that he had never been threatened or promised anything in return for the statement.
Bradford also confessed in a conversation in June 1991 with his cellmate, Todd Gardner. Gardner had been charged with second-degree murder. He was acquitted. After his acquittal, Gardner’s attorney contacted the prosecutor in the case at bar. Gardner personally spoke with the prosecutor on the Sunday and Monday before Bradford’s trial. Gardner explained that he came forward with Bradford’s confession because a woman with lads had been shot. Bradford countered with his testimony that he did not kill Angela and did not know why jail inmates testified that he had confessed to the crime.
Timothy Wright, a cellmate of Bradford’s at the Leavenworth County Jail, testified for the defense. Before the direct examination began, defense counsel approached the bench and moved for a mistrial based on the fact that Wright had been escorted into the courtroom in leg and hand chains. Counsel argued that it “makes [Wright] look heinous to be paraded in front of the jury in chains.” The trial court, in denying the motion, explained that the “[o]rdinary method of transporting [was] in leg and belly chains. I had no request he be transported in any other manner. If you wish to have his chains removed, we can have them removed now.” Defense counsel replied: “A little bit after the fact, Your Honor.”
Wright testified that while he has in jail an officer approached him about making a statement against Bradford. According to Wright, the officer promised that if Wright gave a statement he would either receive a reduced sentence or the charges against him would be dropped. Wright stated that he had heard rumors that other inmates had been promised concessions in exchange for their testimony.
Defense counsel also moved for a mistrial based on the fact that Angela’s family had been wearing buttons in the courtroom containing Angela’s photograph. The trial court denied the motion and directed court personnel to advise those persons wearing the buttons to remove them during further court proceedings.
Corpus Delicti — Bradford’s Contentions
Bradford asserts that he was convicted by his own extrajudicial confession. He maintains that his confession was not corroborated by any independent evidence that either placed him at the scene of the crime or showed that he attempted a robbery. He reasons that the State failed to prove (1) the corpus delicti of felony murder and (2) his guilt beyond a reasonable doubt.
Bradford indicates that we have held that the corpus delicti cannot be established by tire unsupported extrajudicial confession of a defendant, citing State v. Yarrington, 238 Kan. 141, 146, 708 P.2d 524 (1985). He recognizes that our opinions have held that the corpus delicti in a homicide case is established by proof of two facts: that a person was killed and that another individual did the killing. Bradford observes, however, that those opinions have addressed the corpus delicti question in the intentional murder context. Bradford contends that when a defendant is charged with felony murder, proving the corpus delicti requires proof of the underlying felony. He discusses Gribble v. State, 808 S.W.2d 65, 71 (Tex. Crim. 1990), cert. denied 111 S. Ct. 2856 (1991), where the court held that an extrajudicial confession must be corroborated as to the underlying felony. Bradford acknowledges that Angela’s death is undisputed. He believes, however, that no tangible evidence supported the finding that an attempted robbery occurred. He emphasizes that large amounts of cash remained in the restaurant, the building was locked, there were no signs of forcible entry, and there was neither evidence of a struggle nor evidence that Angela attacked her assailant, suggesting she knew her assailant.
Bradford argues that the statements concerning his alleged confessions were so untrustworthy that we should carefully scrutinize the independent, corroborative proof. He emphasizes that the State failed to produce or prove: (1) fingerprints; (2) a murder weapon; (3) his presence in the vicinity of the crime; (4) any suspicious behavior which could connect him to the crime; (5) witnesses who could corroborate the description of the crime; and (6) any fruits of the crime.
Bradford contends that aside from the confessions, no evidence corroborated the attempted robbery; consequently, the State failed to prove the corpus delicti of the underlying offense which supported the felony-murder charge. In the alternative, Bradford claims that the confessions produced by the State were so untrustworthy that no rational jury could have convicted him.
According to Bradford, there are two problems with the credibility of Tammy’s statement. First, Tammy swore under oath at trial that her original statement to the police was false. Second, Tammy testified that she had been coerced into giving the statement, rendering her statement untrustworthy. Bradford believes the jailhouse informants’ statements lacked credibility. He maintains that a jury could not have found him guilty beyond a reasonable doubt based on the dubious reliability of the statements which recounted his confession.
Corpus Delicti — The State’s Contentions
The State responds with a description of the facts which support the corpus delicti of the murder and of the attempted robbery: Angela was dead; her death was by force and not as a result of accident, suicide, or natural causes; she was attacked after hours in her workplace by an armed intruder; she had a large amount of money available at the scene; she was forcibly subdued, i.e., shot and lulled while attempting to flee; and someone returned her body to the rear door and was locked out.
Corpus Delicti — Discussion
We recently revisited the corpus delicti issue in State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992). “It has long been the rule of this court that a conviction of even the gravest offense may be sustained by circumstantial evidence.” State v. Hupp, 248 Kan. 644, Syl. ¶ 5, 809 P.2d 1207 (1991). There was sufficient evidence to establish that Angela was killed and that the killing was done by another person. The Texas Court of Criminal Appeals in Gribble reasoned that in order for the corpus delicti to be established,
“the extrajudicial confession of a criminal defendant must be corroborated by other evidence tending to show that a crime was committed. [Citations omitted.] It need not be corroborated as to the person who committed it, since identity of the perpetrator is not a part of the corpus delicti and may be established by an extrajudicial confession alone.” 808 S.W.2d at 70.
The court in Gribble agreed “that the corpus delicti of capital murder includes more than merely homicide by a criminal agency. In the present context, we hold that evidence independent of appellant’s confession was required to show that his victim had been kidnapped.” 808 S.W.2d at 71. However, the Texas court went on to explain that
“[s]uch evidence need not, however, be sufficient by itself to prove the offense of kidnapping. [Citations omitted.]. . . [T]he quantum of independent evidence necessary to corroborate the corpus delicti in a criminal prosecution relying upon the extrajudicial confession of an accused need not be great. [Citation omitted.] So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served. [Citations omitted.]” 808 S.W.2d at 71-72.
We agree with the Gribble analysis of the relationship of the corpus delicti and the underlying felony in a felony-murder case.
The evidence at the crime scene in the case at bar independently established the corpus delicti of attempted aggravated robbery. Proof of the corpus delicti does not require the State to prove by evidence independent of Bradford’s confession that the attempted robbery was committed by Bradford. The State merely needs to corroborate the fact that, given the evidence, it is more probable than not that Angela was killed during the course of an attempted robbery. Sufficient corroborating proof that satisfies this burden is present in the case at bar. Angela was attacked at a time when she was routinely alone dealing with the day’s receipts. Her purse and keys were on the counter near the money, which could be a sign that she was ready to leave to deposit the money in the bank. The robbery did not need to be completed to support the attempt. The blood spattered in the restaurant indicated foul play. The scuff marks outside the restaurant are consistent with the State’s view that Angela left the Pizza Hut, fell in the parking lot, and someone dragged her body back to the door. Reentry was attempted, but the door was locked.
Sufficiency of Evidence
The standard of review on the sufficiency of the evidence issue is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Bradford guilty beyond a reasonable doubt. See State v. Richmond, 250 Kan. 375, Syl. ¶ 4, 827 P.2d 743 (1992).
The jury found Bradford guilty of both felony murder and the underlying crime of attempted aggravated robbery. The jury had an opportunity to evaluate the evidence and testimony of the witnesses. The trial court also had an opportunity to assess whether the jury’s decision was supported by the evidence when it denied Bradford’s motion for a new trial. Credibility of witnesses is an issue for the jury, not for the trial judge or the appellate courts. State v. Jarmon, 245 Kan. 634, 638, 783 P.2d 1267 (1989).
“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the' perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 1992 Supp. 21-3301(a). “The determination of the existence of an overt act is a jury function.” State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988).
“Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427. “Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3426.
When viewed in the light most favorable to the prosecution, the record contains evidence upon which the jury could have relied in reaching its decision. Testimony regarding Bradford’s confessions could properly be considered to establish that Bradford committed the crimes. All of the witnesses described the events to which Bradford confessed in a similar fashion, with only minor differences. The jury could have determined Bradford’s guilt based on this similarity. Bradford had an opportunity to present evidence which supported his theory. Although the credibility of the State’s witnesses was brought into question, the jury obviously believed the State’s witnesses and its theory rather than the evidence presented in Bradford’s behalf. Bradford’s attack on witness credibility repeats the arguments he unsuccessfully made to the jury. Bradford is essentially arguing that the evidence was insufficient to support the verdict. We do not agree.
Bradford’s Mistrial Motion
Bradford asserts abuse of discretion in the trial court’s failure to grant mistrial motions because of the buttons containing Angela’s picture and Wright’s courtroom appearance in chains. The declaration of a mistrial is a matter entrusted to the trial court’s discretion. The standard of review is abuse of discretion. The test of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990). Bradford carries the burden of showing that such abuse, if present, requires reversal. See State v. Walker, 244 Kan. 275, 279-80, 768 P.2d 290 (1989). A judge’s power to declare a mistrial is to be used with great caution, under proper circumstances, to insure that all parties receive a fair trial. State v. Chandler, 252 Kan. 797, Syl. ¶ 2, 850 P.2d 803 (1993).
Bradford claims that the family’s purpose in wearing the buttons was to guarantee that he would be convicted. He asserts that such courtroom demonstrations which are designed to influence the administration of justice “are antithetical to due process.” He discusses Norris v. Risley, 878 F.2d 1178 (9th Cir. 1989), in which the petitioner alleged that the presence of women spectators from a rape task force who wore “Women Against Rape” buttons deprived him of a fair trial. The Norris court noted that a reasonable inference was that the women were attempting to press for a conviction. The court reasoned that demonstrations designed to influence the outcome in a courtroom are impermissible. The case was remanded for an evidentiary hearing to determine whether the circumstances surrounding the buttons were prejudicial. 878 F.2d at 1183.
Bradford believes that the trial court, in the case at bar, should have ordered the spectators to remove their buttons at an earlier time in the proceeding. He reasons that the court had a clear view of the spectators and had an obligation to help guarantee a fair trial. He explains that defense counsel had his back to the spectators and, consequently, could not move for the mistrial until he had seen a button during recess. Bradford asserts that the family’s show of support, which was not subject to cross-examination, indicated that he was guilty and prejudiced the outcome of his trial.
The trial court ordered the buttons removed when the matter was brought to its attention. Bradford has failed to provide evidence that any of the jurors saw or were influenced by the buttons. The button incident is controlled by State v. McNaught, 238 Kan. 567, 713 P.2d 457 (1986), in which spectators at trial wore Mothers Against Drunk Driving (MADD) and Students Against Drunk Driving (SADD) buttons. McNaught failed to show that he was prejudiced by the wearing of the buttons. We could not, as a matter of law, say that the trial court abused its discretion in refusing to require the spectators to remove the buttons. 238 Kan. at 580-81.
Additionally, Bradford reasons that when a defendant is tried in prison attire, “an unacceptable risk is presented of impermissible factors coming into play,” quoting Estelle v. Williams, 425 U.S. 501, 505, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976). He asserts that the jury’s viewing a defendant in handcuffs violates the right to a fair trial, citing U. S. v. Halliburton, 870 F.2d 557 (9th Cir.), cert. denied 492 U.S. 910 (1989). Bradford believes that the same principles apply with equal force to the situation in the instant case where Wright, a defense witness, appeared at trial in chains. He claims that the chains could have caused jurors to base their credibility conclusions on unacceptable factors. Bradford asserts that the trial court’s failure to grant a mistrial on either of the described grounds was error. We do not agree.
Bradford called Wright to testify concerning events that allegedly occurred while he and Wright were incarcerated. Bradford did not request that either the jail chains or jail garb be removed. Wright’s courtroom appearance was controlled by Bradford, not by the State. Bradford exposed the fact that Wright had been in jail. The trial court offered to have the chains removed when Wright’s appearance was first brought to the court’s attention. We find no abuse of discretion.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by the defendant, Lena Ferguson, from her jury convictions of one count of aggravated arson and one count of felony murder. She was sentenced to a term of 15 years to life for aggravated arson to run concurrently with a term of life imprisonment for felony murder.
On January 13, 1991, David Summers died from smoke and heat inhalation along with some carbon monoxide asphyxiation. His body was found in the living room of his house at 3116 SE Dupont in Topeka, where there had been a fire. The autopsy showed that Summers had been alive and breathing for a few minutes while the fire was burning. Summers’ chest and upper abdomen “showed no burning because the body had been laying face down in the fire.”
The defendant shared the house with Summers, her former husband. In the fall of 1990, Summers became sexually involved with Margaret Matthews. Summers told Matthews that he and his former wife were roommates. Matthews testified that she called Summers at his house approximately three times a week and that sometimes the phone was answered by a woman who threatened Matthews and refused to allow her to speak with Summers.
Summers spent the night of January 12-13, 1991, with Matthews in a motel. Between 1:30 and 3:00 a.m., Matthews telephoned Ferguson several times from the motel room. First Matthews called Ferguson and asked her if she was Dave’s wife; Ferguson hung up. Matthews began the second call by saying to Ferguson, “Dave wants to speak to you,” and handing the telephone to him. After speaking briefly to Ferguson, Summers hung up.
At approximately 10:00 a.m. on January 13, 1991, a friend went to Ferguson’s house to pick her up and take her out to breakfast. Although the friends had agreed some days earlier to eat out together on that Sunday morning, Ferguson refused to go. Neither Summers nor his car was at the house. Near the sofa there was a quilt partially covering what looked like a plastic milk container. The friend noticed it because it looked out of place in Ferguson’s normally neat house.
Sometime around noon to 12:30 p.m., a passerby saw black smoke coming from the house at 3116 SE Dupont. From a nearby gasoline station, he called 911. He went back to the house and knocked and shouted to alert any occupants of the danger. He stayed until the fire department arrived, and he did not see anyone leave the house.
Ferguson’s sister testified that Ferguson arrived at her apartment at approximately 1:00 p.m. Ferguson was “very frantic.” At trial the sister testified that Ferguson had said that “something was on fire” and told her to dial 911. Randy Mills, a police officer, testified that the sister had told him that Ferguson “had said something similar to ... T burned the son of a bitch over there.’ ”
At 12:43 p.m., Ferguson showed up at the Topeka Police Department. When she entered the patrol office, she was smoking a cigarette. The officer told her no smoking was permitted in the police department. Ferguson stepped back into the lobby and put the cigarette out in an ashtray. She reentered the patrol office. When the officer at tire desk asked Ferguson how he could help her, Ferguson responded, “I just killed a man. I set him on fire.” He asked her where, and Ferguson said at 3116 SE Dupont. He checked the monitor and verified that a fire had been reported at that address. The desk officer telephoned for the detective on duty, and then he escorted Ferguson to the detective division.
There Officer Mills introduced himself to Ferguson. Ferguson replied in the negative when he asked her if she needed a drink of water, if she needed to use the restroom, and if she needed any medical assistance. Ferguson asked Officer Mills “if he was dead,” and Mills told her that Summers was dead. Ferguson said, “Didn’t mean to kill him,” “Didn’t want to,” and “I’m tired of this,” or “I’m tired of it.”
In the presence of Ferguson, Mills told a female officer that Ferguson’s clothing was to be confiscated and photographs were to be taken of Ferguson for the purpose of documenting any visible wounds she might have. Ferguson said, “I don’t have no injuries.” The female officer testified that she did not see any bruises, abrasions, or cuts on Ferguson. The officer also testified that Ferguson’s clothing smelled smoky, like a house fire rather than like cigarette smoke.
An investigator from the Topeka Fire Department testified that the fire had been set. Indications of a set fire included his eyes stinging due to the presence of gasoline, a faint odor of gasoline around the body of David Summers, and a pattern around the body where a flammable liquid had been poured and burned. A carpet sample taken from near Summers’ left leg contained gasoline. A plastic milk container about half full of gasoline was found around the comer from the living room in the kitchen. The soot which had been deposited on the windows was soft, which indicates a free-burning, fast fire rather than a smoldering one. “An open flame would ignite a free burning fire,” according to the investigator.
The police investigation of the house revealed some clothing outside the back door of the house. Police also found some items, including shoes, in the bathtub.
Ferguson first contends on appeal that her Sixth Amendment right to counsel and her Fourteenth Amendment right to a fair trial were violated because the district court would not permit her appointed attorney to withdraw. She asserts that she “had a viable claim of self defense.” The contention is that her defense went undeveloped and unpresented due to the irreconcilable conflict between Ferguson and counsel.
Ferguson was in custody from January 13, 1991. The order appointing counsel for her was signed the following day. On March 29, counsel sought a continuance of the trial setting on the ground that Ferguson was unable, due to emotional turmoil, to discuss with counsel “details surrounding the event.” On April 16, defense counsel filed a motion seeking permission to withdraw “and further for an order appointing counsel who is not employed by the Public Defender as substitute counsel.” Counsel stated in the motion:
“In support of her motion the Accused shows the Court that she has no confidence in her present counsel or in any counsel who is employed by the Public Defender’s office. Said conflict and absence of confidence is so serious that the attorney-client relationship is so adversely affected that there is effectively no counsel at all for the accused.”
At the hearing on the motion to withdraw, counsel stated that the motion had been filed at Ferguson’s request. Counsel stated:
“I have exhausted my ability to resolve and to satisfy Ms. Ferguson that I can effectively represent her. She is voicing the concern that because we are employees of the State, that we have an inherent conflict of interest— and those aren’t her words, but that’s the import of what she is saying— in representing her as a defendant charged by the State. But, it goes deeper than that, and it’s difficult for me or, in fact, I am unable to. enlighten the Court as to what I see as the problem. X don’t know. But, Ms. Ferguson, in my opinion, is sincere in her beliefs. I believe that she has been sincere in working with me to try to overcome the reservation she has. She has talked to me. She has not avoided me. She has been willing to discuss issues and problems, but there is something very basic in her feelings right now which leads me to believe that she does not have the confidence in me or my staff to permit her to put on the defense that she has. And I can represent to the Court that in my professional opinion she has a defense in this case which a jury should be allowed to decide.”
Ferguson testified that at the time of the hearing she did not have money to hire a lawyer, but that she had á workers compensation claim pending from which she expected to obtain some money. She was unable to estimate when her compensation claim might be settled. In subsequent proceedings, it was never represented to the district court that Ferguson was financially able to hire counsel.
When asked about reasons why she did not want to be represented by her appointed counsel, Ferguson principally responded that a lawyer who was paid by the government could not fairly represent her, as shown by the following exceipts from her testimony:
“Q. Do you care to tell the Court in your own words why you feel that I can’t be your lawyer in this case?
“A. Because I don't believe that the State — ah, the State has these charges up against me, and I don’t feel like someone working for the State can help me and help me like they should help me because you can’t work for the State and me too.
“THE WITNESS: I don’t feel that Mr. Wurtz can work for the State and work for me too and I get a fair deal out of this.
“A. ... I don’t feel like anybody that works for the State will help me the way that I should be helped.
“A. ... I don’t know why, but I just don’t trust you and I won’t trust anybody that works for the State.
“Q. You — one thing we did not talk about, but maybe we should talk about, the Judge may ask the same question, if a lawyer is appointed who is not a public defender, is not on the salary of the State, that lawyer would be paid by the State regardless. I mean, they wouldn’t be employees, like I am, but their fee, if they were appointed and I were allowed off this case, would be paid by the State.
“A. Well, tiren, I don’t feel that X would get a fair deal.
“Q. You don’t feel like you would get a fair deal then, either?
“A. No. The State is the one that’s prosecuting me, and anybody that’s paid by the State is going to work for the State and not for me.”
Ferguson also expressed some complaints about trial counsel’s handling of her case. First, she found fault with his failure to seek and obtain a bond reduction at an earlier date. Counsel filed a motion for reduction of bond on Mai-ch 29. The district court judge found that there had been nothing derelict in counsel’s conduct and that, in fact, in successfully advocating Ferguson’s release, counsel had “achieved something that is rarely seen in Class A felony cases.” Second, she complained that counsel withheld information from her. Third, Ferguson testified, “I feel like you haven’t gotten in touch with a lot of people that you should.” The district court judge stated that such general allegations, with no specifics and no showing, carry no weight.
Ferguson concluded her testimony as follows: “I just want to find me a lawyer that I know is going to help me, that is going to work for me and only me.” The district court judge remarked that he saw no evidence that' counsel had failed to work for her. At that time, counsel had filed on Ferguson’s behalf the following substantive pretrial motions: to suppress statements, to suppress evidence seized from the house, to suppress evidence from her vehicle, to suppress photographs and testimony, to reduce bond, and to prohibit or limit electronic and/or photographic trial coverage.
The district court concluded that the legal standard for substitution of counsel had not been met by Ferguson. The district court stated: Although he denied the motion to withdraw, tire district court judge left open the possibility of a change: “This does not preclude her from a timely hiring of her own attorney if this were done expeditiously and he were willing to enter his appearance. But, I’m not changing the schedule of this case at this point in time.”
“The defendant is entitled to the effective assistance of counsel. She is entitled to a competent professional to represent her. She is entitled to an experienced attorney. Mr. Wurtz meets all of these tests. He is extremely experienced. He is a well-trained professional. Certainly he has as much experience with this type of case as almost any attorney in the bar. The defendant is not entitled to an attorney of her choice, but to a competent attorney who will be able to provide her the professional assistance under constitutional standards that have been established by the courts of this land and by the Kansas courts. I have no persuasive evidence that Mr. Wurtz fails to meet the standard.”
Trial was delayed while Ferguson was hospitalized and evaluated for competence. On October 24, Ferguson was discharged from Larned State Security Hospital (Larned).
On November 13, the district court convened a hearing on pending motions; defense counsel suggested that Ferguson’s competency and substitution of counsel should be considered before the pending motions' were taken up. Défense counsel told the court that he had spoken directly with his client on only one brief occasion since her release from the hospital, that other communications had been through her, physician, and that Ferguson had ignored counsel’s requests to visit with him in his office. Counsel stated that Ferguson “has a deep and abiding distrust of everything that I do,” and that she believes that he passes her confidences on to the prosecutor. Counsel told the court, “In the present state of our relationship, as I see it, there being no relationship, I don’t believe I can effectively present a defense on her behalf.” Finally, counsel stated that his own frustration further diminished his effectiveness.
The district court denied the request for substitution of counsel. Noting that a hearing had been conducted earlier and that the subjective nature of Fei-guson’s complaints had not changed since then, the district court judge stated that a reasonable basis for permitting counsel to withdraw had not been presented. The district court found that there had been no showing that defense counsel was incompetent or that there was any ethical conflict or that he had been derelict in representation. The district court concluded that absent a showing of some reasonable basis, it would be ill-advised to permit a change of counsel because, “[i]f we do it in this case, then presumably we should do it in any serious case where the defendant asserts that they are not pleased for a number of subjective reasons with the attorney.”
The district court then took up the pending motions. After the testimony of one witness, defense counsel informed the court that Ferguson wished to be excused. On the record in chambers, Ferguson told the district court judge that she did “not wish to hear the lies two or three times, once will be enough for me.” Defense counsel renewed his motion to withdraw in light of her request. He stated that “[t]his is further demonstration ... of the fact that our relationship is such that she cannot help me.” In denying the renewed request, the district court stated that in addition to reasons already given,
“there is no showing or reason to believe that any other attorney would be in a better position to work or cooperate with the defendant, and the Court remains unpersuaded that this would cure any problem that we might have in the future, and there is no reason for the Court to believe that any other attorney would have any better cooperation from this — -from the defendant.”
On November 18, the first day of trial, defense counsel filed another motion to withdraw as counsel. The request was denied, and the case proceeded to trial. No testimony was presented on behalf of Ferguson.
In State v. Banks, 216 Kan. 390, Syl. ¶ 2, 532 P.2d 1058 (1975), the court stated: “As a general rule whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide.” In State v. Saeger, 13 Kan. App. 2d 723, 724, 779 P.2d 37 (1989), where the district court had refused the indigent defendant’s request to discharge counsel, the Court of Appeals stated:
“On appeal, our scope of review is limited to whether the trial court abused its discretion. In making that determination, we must decide whether any reasonable person would agree with the trial court’s ruling. If we can reach that conclusion, we will not disturb “the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).”
Banks is the only decision of this court which is cited by Ferguson on the issue of substitution of counsel. Immediately before Banks’ trial began, his counsel requested permission to withdraw on the ground that there was a conflict between his duties to his client and to the court and that Banks “wanted the case tried in a different manner than counsel felt the case could be tried.” 216 Kan. at 391. Counsel stated that any attorney would confront the same conflict in representing Banks. 216 Kan. at 391. The district court denied the request for lack of timeliness and on the ground that “the same situation would arise with any other member of the bar.” 216 Kan. at 391. Then Banks revealed to the district court judge that counsel had refused to use a certain witness and had explained to Banks that using the witness would conflict with the attorney’s duty as an officer of the court. 216 Kan. at 391.
During the trial, Banks engaged in several episodes of disruptive behavior, was adjudged in contempt, and was gagged for a period of time. At the close of the State’s evidence, defense counsel announced that Banks would present no evidence, and Banks remarked to the jurors that he had evidence which he was not being allowed to present. Banks was removed from the courtroom, and the trial proceeded without him. Banks was acquitted of one charge and found guilty of another. 216 Kan. at 392.
The basic standard stated by this court in Banks is as follows:
“As long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel (State v. Henderson, 205 Kan. 231, 468 P.2d 136).” 216 Kan. at 394.
Although the district court had been advised that any other attorney likely would encounter the same problems, that was not a primary factor in consideration. This court affirmed the trial court’s denial of Banks’ request for a different attorney.
In Saeger, the Court of Appeals relied on United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied 487 U.S. 1211 (1988), for its analytic framework. 13 Kan. App. 2d at 724. The federal appellate court considered the following factors in determining whether the trial court had abused its discretion in denying a request for substitution of defense counsel: “timeliness of the motion, adequacy of the trial court’s inquiry into defendant’s complaint, and whether the attorney-client conflict was so great that it resulted in total lack of communication preventing an adequate defense.” 13 Kan. App. 2d at 724. Ferguson structures her argument on this framework, citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991), and U.S. v. Walker, 915 F.2d 480, 482-83 (9th Cir. 1990), for authority.
Ferguson contends that her relation with trial counsel had deteriorated to the point where he could not give effective aid in the fair presentation of her defense. She argues that their relation was marked by a total lack of communication which prevented presentation of any defense. She cites Saeger for the proposition that substitution of counsel is required where there has been a total breakdown of communication, but in that case “there was no breakdown of communication.” 13 Kan. App. 2d at 727. In Saeger, the district court’s denial of the request to discharge the court-appointed attorney was affirmed by the Court of Appeals.
The lack of cooperation or communication between defendant and trial counsel does not in and of itself constitute a violation of the Sixth Amendment right to counsel. In the recent case of State v. Cromwell, 253 Kan 495, 500, 856 P.2d 1299 (1993), the failure to appoint substitute counsel was raised on appeal, and we said: “Irreconcilable conflict between a defendant and his attorney may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant’s Sixth Amendment right to effective assistance of counsel.” We concluded:
“Although there was a substantial bréale in communication between defendant and his counsel, which, if not addressed, might have resulted in an irreconcilable conflict, the court restored communication between defense counsel and client, making it unnecessary to appoint substitute counsel. The defendant and his counsel took advantage of the three-weelc continuance to communicate with one another, and communication continued throughout all proceedings. Under these circumstances, we conclude that the trial court did not abuse its discretion in refusing to appoint substitute counsel.” 253 Kan. at 504.
Here, Ferguson contends that there was a total breakdown in communication which prevented counsel from presenting a defense and that the district court ignored the signs and its duty to inquire. The signs, according to Ferguson, were counsel’s statements that there was a “viable defense which he could not ethically reveal,” that Dr. Parks knew why Ferguson distrusted counsel, and that counsel was too frustrated to zealously represent her. The record does not contain a statement of counsel to the district court that Ferguson had a viable defense which he was constrained from revealing. At the April hearing, trial counsel stated, “I can represent to the Court that in my professional opinion she has a defense in this case which a jury should be allowed to decide.” If this is the statement to which Ferguson refers, she has invested it with meaning somewhat beyond its words. Counsel’s statement with regard to Dr. Parks was made on November 13 and is as follows:
“[T]he fact of payment of counsel, only she can answer whether that makes a difference to her, and the Court may obviously inquire. But, that is not what I have found to be an overriding concern in her expressions of discontent with me. And it has similarly not been that which has been conveyed to me in a very limited sense by her psychiatrist. He is protected by privilege too, and so I don’t believe he has been able to be completely frank with me either. But the sense I get is deeper than simply who is paying the bill.”
Ferguson contends that the proper focus of the district court’s inquiry should have been on the conflict between defendant and counsel, and not whether counsel was legally competent. In the present case, the district court judge considered the competence of counsel, and it is apparent from his remarks that counsel’s competence weighed against granting the request for change. It does not appear, however, that the district court judge’s first concern was counsel’s competence. At the April hearing, he turned his attention to competence after Ferguson testified that she did not believe that she could be fairly represented by any attorney who was paid by the State. From her testimony, the judge concluded that the same conflict would arise with any appointed attorney. Then he considered whether there was any reason other than the conflict between defendant and counsel which would warrant substitution, and that is when he considered competence.
By the time requests for substitution were made in November, the district court judge had' received tire suggestion of staff at Larned that a change of counsel “may help the situation.” Ferguson complained to Larned staff that trial counsel “ ‘did not do his job properly,’ ” and she stated: “ ‘Why should I trust him; I will never say anything to him; I should have been here in January, not August. He is not working in my best interest.’ ” The staff concluded that Ferguson’s
“expressed unwillingness to cooperate with the attorney appears to be related to her strong feelings of being let down by him because he never contacted her and was not working in her best interest while she was in jail. There are no strong indications to suggest that her mental illness is the basis for her lack of trust in her attorney.”
The district court judge who received this recommendation, unlike the staff members who made it, was aware that Ferguson’s complaints of her counsel’s lack of diligence were not supported by the facts. He knew that Ferguson’s bond had been reduced and she had been released from jail. With regard to her complaint that her competency evaluation should have occurred at an earlier time, the district court knew that her personal psychiatrist, Dr. Parks, testified on May 1 that she understood the nature and purpose of the legal proceeding against her and that, with (his) treatment for a month or two, she would be able to assist in her defense. The district judge knew that Dr. Parks had testified in May that Ferguson had a “suspicious distrust almost at a paranoid level which makes it difficult for her to cooperate with anyone at this point.” (Emphasis added.)
The Larned report from October is replete with indications that Ferguson’s distrust and unwillingness to cooperate had not abated in the intervening months. The report notes that Ferguson “consistently refused” to provide information about her medical history, she refused to sign releases for her medical records, she refused to cooperate with formal evaluation procedures, she refused psychological testing, and she told her sister not to complete a background information questionnaire. The report states: “Her overall behavior may be characterized as uncooperative, suspicious, belligerent, hostile and defiant.”
It may be noted that Ferguson’s reluctance to cooperate extended to her post-trial proceedings. Her presentence investigation report contains the following: “After introducing myself and informing her that I was conducting a presentence investigation for the Court, Ms. Ferguson stated she didn’t want to participate in the interview.” Her evaluation and classification report from the Department of Corrections contains the following:
“As previously indicated the inmate did not wish to participate in the evaluation process however did not formally decline to be evaluated.”
A review of the record in this case leaves little doubt that the breakdown in communication between Ferguson and counsel was absolute. The State’s response is that “lack of communication between a defendant and defense counsel due to a defendant’s refusal to cooperate is not of itself basis for reversal on grounds of ineffective assistance of counsel.” The State relies on Thomas v. State, 421 So. 2d 160 (Fla. 1982), and State v. Long, 206 Mont. 40, 669 P.2d 1068 (1983). We agree.
Long was convicted of arson of a trailer. His “automobile was seen by witnesses at the trailer immediately before the blast and speeding away immediately after.” 206 Mont, at 42.
When Long complained that his first court-appointed attorney was not adequately representing him, the trial court substituted counsel. 206 Mont, at 42-43. At the initial interview with his new counsel, Long refused to cooperate, tried to overturn the table, and stalked out of the room. 206 Mont, at 43. Long’s second request for substitution of counsel was refused. He refused to cooperate in preparation of the defense, and no defense witnesses were called.
In evaluating Long’s arguments that he had been denied effective assistance of counsel, the Montana Supreme Court viewed Long as the source of the problem he complained of. It cited the general rule that “ ‘a party who participates in or contributes to an error cannot complain of it.’ ” 206 Mont, at 48.
With regard to appointed counsel’s performance, the Montana court stated: “The record shows that defendant received not only adequate, but diligent and conscientious representation. This representation included filing of various motions with supporting memoranda, questioning the State’s witnesses béfore and during trial and sentencing, pre-trial investigation, numerous interviews with defendant and meetings with the prosecutor.” 206 Mont, at 47.
Stating that “we will not allow the defendant to complain of problems caused by his refusal to cooperate with defense counsel,” the Montana court held: “[T]he lack of communication between defendant and Houtz did not deny defendant effective assistance of counsel. The record clearly shows that defendant received effective assistance of counsel. Moreover, any lack of communication between Houtz and defendant was caused by defendant’s refusal to assist in his own defense.” 206 Mont, at 48.
In the other case cited by the State, Thomas was under a sentence of death in the state of Florida. Among the many issues which he raised before that state’s Supreme Court was ineffectiveness of counsel due to the trial court’s denial of defense counsel’s motion to withdraw. 421 So. 2d at 163-64. Among the reasons the Supreme Court gave for denying relief is the following:
“At the hearing in the court below it was established that the difficulty between appellant and his lawyer was due to appellant’s refusal to communicate with tire lawyer. The court ruled that this constitutes no ground for holding that there was a denial of effective assistance of counsel. ... A defendant must not be allowed to refuse to cooperate with his attorney and then attempt to create an issue of ineffective counsel on the basis of his refusal to cooperate.” 421 So. 2d at 164.
Ferguson would distinguish Long on the ground that it was Long’s second, rather than first, request for substitution which was denied. She would distinguish Thomas on the ground that another reason why the Florida Supreme Court denied relief was “that it was not ineffective assistant [sic] of appellate counsel to fail to raise a substitution of counsel issue on appeal.” There were several distinctive aspects to the procedurally complex Thomas case. It appears that Ferguson has focused on a claim made in a petition for writ of habeas corpus that appellate counsel was ineffective, while the State referred to Thomas’ claim that his trial counsel was ineffective.
We find the Long and Thomas decisions are applicable to the present case. Long is particularly instructive. Arguably, the trial judge could have appointed substitute counsel for Ferguson, as was done in Long. However, based upon Ferguson’s testimony to the court, appointment of substitute counsel would have been an exercise in futility. The court had no viable option other than to appoint counsel paid by the State. There is no reason to believe such a substitute counsel would fare any better than trial counsel did. That is one of the lessons to be learned from Long.
Counsel indicated that he had only one brief communication with Ferguson after she was released from Lamed. During that time, she was free to contact counsel and cooperate with him in preparing her defense. She refused to do so. The record is replete with her failure to cooperate with anyone relative to this case. There was no showing that the representation by counsel was ineffective or that his continued representation would impair Fer guson’s right to counsel. The record supports the finding by the district judge that there was no basis on which to appoint substitute counsel for Ferguson. She refused to cooperate with her counsel and caused or substantially contributed to the problems of which she now complains. She cannot now complain of a trial error which was of her own making. We conclude that the conflict was due to her refusal to communicate or cooperate with her counsel; therefore, her right to counsel was not violated.
Next, we consider if the district court erred in finding Ferguson competent to stand trial. On appeal, this court’s inquiry on the issue of Ferguson’s competency to stand trial “is limited to whether the trial court’s finding of competency amounted to an abuse of discretion.” State v. William, 248 Kan. 389, 415, 807 P.2d 1292, cert. denied 116 L. Ed. 2d 89 (1991).
K.S.A. 22-3301(1) provides:
“(1) For the purpose of this article, a person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
(a) To understand the nature and purpose of the proceedings against him; or
(b) to make or assist in making his defense.”
Ferguson contends that she was unable to assist in making her defense. The State does not dispute that Ferguson did not aid in making her defense, but the State argues that she was unwilling to cooperate rather than unable due to mental illness to assist. We agree.
On May 1, at a hearing on Ferguson’s motion to continue trial, Dr. Parks testified that Ferguson was under his care at Stormont-Vail Regional Medical Center. Dr. Parks testified that she was beginning to respond to medication and was improving, “but remains severely ill and really significantly depressed.” He testified unhesitatingly that Ferguson understood the nature and purpose of the legal proceeding against her. His response to the question whether she could assist in making her defense was that at that time she could not, but he believed she would be able to assist once she had been treated. Dr. Parks stated:
“Ah, that one right now, she has trouble with that. She’s not functioning well enough to assist. There is another element of her illness that I have learned more so since I have gotten to know her better is her suspicious distrust almost at a paranoid level which makes it difficult for her to cooperate with anyone at this point. And there is another element to her which appears she may be a person that has received trauma psychologically or physically over a long period of time which makes her shut off and noncommunicative about a lot of things. So, she will have difficulty right at this moment really assisting. If treated, I think she would be able to cooperate, but she would have extreme difficulty at this point psychologically thinking quick enough, fast enough, clear enough to assist.” (Emphasis added.)
When asked how long it would be before she was able to assist in making her defense, Dr. Parks estimated 30 to 60 days.
On July 29, the district court conducted a hearing on Ferguson’s motion to determine competency. The district court ordered that Ferguson be examined by Dr. James B. Horne. The record contains a report of the mental examination of Ferguson which took place on July 30. The following is the concluding paragraph of the report:
“There was no apparent distortion of thinking except for very fixed beliefs that [her appointed attorney] is not acting in her interest. These were not a minimal [sic] to any kind of rational challenge and were quite fixed beliefs on the order of a paranoid delusion. When it touches her own interests, she does seem to have a paranoid stance that there is no reason that what she wants or needs cannot be. If she is told she cannot have it as she cannot have the medication unless she submits to a blood test or if she can’t afford an attorney she will have to use an appointed one, if this does not suit her, she feels free to refuse what she can have. This is symptomatic of mental illness and, since it wipes out her ability to cooperate with her attorney, tends to make her ‘incompetent’ in the sense of being unable to cooperate with her attorney in her own defense.”
Upon consideration of Dr. Horne’s report, the district court ordered Ferguson to be committed to Larned for examination.
In mid-October, the staff of Larned produced its report. Those observations concerning Ferguson’s uncooperativeness were set out earlier in this opinion in discussion of the question of substitution of counsel. The staff characterized Ferguson’s behavior as “uncooperative, suspicious, belligerent, hostile and defiant.” It concluded:
“Ms. Ferguson is competent to stand trial in that she understands the nature and purpose of the proceedings against her, and is able to assist her attorney in making her defense. Her expressed unwillingness to cooperate with the attorney appears to be related to her strong feelings of being let down by him because he never contacted her and was not working in her best interest while she was in jail. There are no strong indications to suggest that her mental illness is the basis for her lack of trust in her attorney. Therefore, her choice to refuse to cooperate, of and by itself, is not considered by tire staff to be a sign of incompetency to stand trial. In view of this and her overall level of intellectual, emotional and social functioning, Ms. Ferguson is considered to be competent to stand trial.”
On November 13, the district court accepted the conclusion of the Lamed staff and adjudged Ferguson to be competent to stand trial.
Ferguson’s challenge to the district court’s determination of her competence hinges on Dr. Parks’ speculation during the May hearing that “she may be a person that has received trauma psychologically or physically over a long period of time.” Ferguson’s theory of incompetence is that she suffers from post-traumatic stress disorder which renders her unable to discuss the stressful events or trauma. It is for this reason, she contends, she was unable, not merely unwilling, to communicate with her attorney. Being unable to talk with her attorney about significant events, she was unable to assist in making her defense.
At the time Dr. Parks testified, he had been treating Ferguson only a few days and she was only beginning to tell him about herself. The record does not contain any follow-up on this question with Dr. Parks at a time when he was more familiar with Ferguson’s background. Neither of the subsequent reports of professional evaluations of Ferguson’s mental state contains support for Dr. Parks’ suggestion of long-term trauma.
Ferguson notes that in the recent case of State v. William, 248 Kan. 389, this court affirmed the district court’s determination that an obviously troubled man was competent to stand trial. She would distinguish William from the present case on the ground that her potential defense was never presented due to her inability to communicate with counsel, whereas William’s defense of insanity was presented. We do not find the distinction relevant and find the district court did not abuse its discretion in finding Ferguson competent to stand trial.
Ferguson next contends that the district court should have instructed the jury on lesser included offenses of felony murder and aggravated arson.
K.S.A. 21-3107(3) provides in pertinent part:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial, court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
The court has made the following statement of the rule:
“A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense must be given even though the evidence supporting the lesser offense may not be strong or extensive. However, the instruction need not be given if there is no evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of the lesser included offense.” State v. Stallings, 246 Kan. 642, Syl. ¶ 3, 792 P.2d 1013 (1990).
There is an exception to the principle stated in Stallings:
“The general rule for giving lesser included offense instructions is not followed in the case of felony murder. In felony-murder cases the trial court is not required to instruct on all lesser included offenses. State v. Chism, 243 Kan. 484, 487, 759 P.2d 105 (1988); State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977). If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser included offenses are not required. State v. Chism, 243 Kan. at 487; State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).” State v. Hobbs, 248 Kan. 342, 347, 807 P.2d 120 (1991).
It is Ferguson’s contention that the proof of the underlying felony, aggravated arson, was weak. She contends that the evidence suggests that the fire was accidentally started. Ferguson points to the absence of any proof of what ignited the gasoline. She suggests that the gasoline may have been spilled accidentally and that the furnace, gas stove, or some electrical problem ignited it. Ferguson correctly notes that the State’s evidence did not rule out any and all possible alternative explanations of the fire and death of Summers, but that is not the same as saying that the evidence was weak or inconclusive.
She contends that a Texas conviction on nearly identical facts was overturned for insufficient evidence. The case relied on by Ferguson is Massey v. State, 154 Tex. Crim. 263, 226 S.W.2d 856 (1950). Massey was convicted by a jury of the willful burning of a building. On the following facts, the appellate court reversed the judgment on the ground that the evidence was insufficient to support the conviction.
Massey ran an unsuccessful cafe in the burned building. There was testimony which placed him at the building shortly before the fire was discovered, and there was other testimony which placed him elsewhere. In any event, there was direct evidence of motive and opportunity. The State’s evidence that the fire was of incendiary origin, however, was “entirely circumstantial, resting upon an inference based upon an inference.” 154 Tex. Crim. at 270. According to the Texas court, “This may not be done. [Citation omitted.] Presumptions of fact are not indulged against an accused.” 154 Tex. Crim. at 270. The first inference was that flammable liquid had been poured on the floor; the second was that “such showed an incendiary or wilful burning of the building.” 154 Tex. Crim. at 270.
The State’s evidence that flammable liquid had been poured on the floor was assailed by the court. The State’s case depended on the testimony of an insurance agent who had not visited the site until 18 days after the fire. The court expressed doubt about his qualification to offer expert testimony and doubt about his unexplained and incorrect terminology. 154 Tex. Crim. at 265-67. The court noted that the evidence was undisputed that the fire originated in the kitchen rather than in the part of the building where the witness reportedly observed marks from flammable liquid having been poured on the floor. 154 Tex. Crim. at 269. The court noted the absence of any evidence “showing that at the time of the fire any person detected, by smell or otherwise, that any inflammable fluid had been used in the building or that portion where the fire originated.” 154 Tex. Crim. at 269. Furthermore, the court noted that there was no evidence that the structure was in the same condition immediately after the fire and 18 days later. 154 Tex. Crim. at 269.
In arguing that the present case is -“nearly identical” to Massey, Ferguson completely ignores the shortcomings in Texas’ proof which were not present in the State’s case against her. She focuses on what she characterizes as the absence of evidence in both cases “that the defendant intentionally set the fire.” There was no direct eyewitness testimony that Ferguson intentionally set the fire, but there was evidence of a plastic milk container’s being out of place in her generally neat living room before Summers’ return and evidence that after the fire it was found in the kitchen partially full of gasoline. There was testimony of several fire inspectors, whose qualifications have not been questioned, that the smell of gasoline was detected and that the appearance of the interior of the house was consistent with a flammable liquid having been ignited around Summers’ body. There were the statements of the defendant following the incident to the police and others.
Ferguson’s arguments that the evidence of aggravated arson is weak and inconclusive are not persuasive.
Finally, Ferguson argues that the district court was required to instruct the jury on arson because it is as plausible that the fire started before as after Summers arrived home. Here is what Ferguson would have the court infer from the evidence:
“David came home and may have entered the house after the fire was started and tried to save some of his possessions, as is evidenced by the presence of his trophies in the bathtub. Lena’s statement to the police that she set the house on fire and killed a man are not inconsistent with this theory; he may have come home during the beginning of the fire.”
With regard to the items in the bathtub, Officer Shannon viewed a photograph and testified that there were some shoes and some other things, “looks like it might be photographs or something.” It appears that Ferguson wants the court to believe that Summers was trying to protect his prized possessions by placing them in the tub. She has not supplied the court with a reference to the record where the items in the tub are identified as “trophies.” Even more troublesome for Ferguson’s theory, it seems, are her own statements to the police and the evidence which strongly suggests that Summers was lying face down on the living room floor when gasoline was poured on and around him. Thus, not only is there no basis in the record which has been brought to the court’s attention for Ferguson’s hypothesized chain of events, but there also is potent evidence which contradicts it.
As the court stated in State v. Garcia, 233 Kan. 589, 610, 664 P.2d 1343 (1983), “[t]he test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction of the lesser charge.” Because there was no evidence by which a rational factfinder might have found Ferguson guilty beyond a reasonable doubt of arson, there was no need for the district court to instruct the jury on the offense.
We next consider if the evidence was sufficient to support the convictions of felony murder and aggravated arson. As this court has stated many times:
' “If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992).
Ferguson again relies on the Texas case, Massey. She contends that, like Texas courts, Kansas courts do not permit inferences based upon inferences to establish guilt. In this regard, she cites State v. William, 248 Kan. at 402. Examination of the William opinion at that page, however, does not reveal support for Ferguson’s position. In William, the court stated: “A conviction can be based on circumstantial evidence, and intent as an element of a crime may be shown by acts, circumstances, and inferences reasonably deductible therefrom.” 248 Kan. at 402.
More recently, the Court of Appeals reversed the convictions of Jorge Cruz and Juan Tomas De La Cruz, in part, because the jury had been allowed to speculate on unjustifiable inferences. State v. Cruz, 15 Kan. App. 2d 476, 490, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). The Court of Appeals stated that the convictions rested on “an inference of unlawful behavior .. . contradictorily drawn from direct evidence of lawful behavior.” 15 Kan. App. 2d at 492. In explaining its decision, the Court of Appeals stated: “To sustain the convictions we must condone inferences upon inferences upon inferences. This we will not do.” 15 Kan. App. 2d at 492.
We find no merit in Ferguson’s argument. Reasonable inferences drawn from established facts and conditions justify the convictions in the present case; inferences drawn from imagined or assumed facts and conditions are not necessary.
Ferguson also argues that “an uncorroborated confession cannot serve as sufficient evidence of guilt.” She quotes from 5 Am. Jur. 2d, Arson and Related Offenses § 56, p. 846: “ ‘[W]here there is no evidence aside from the admission or confession tending to show that there was a burning and that the fire was of incendiary origin, the extrajudicial confession or admission is not admissible in evidence.’ ” We do not find that either Ferguson’s argument or the sources she cites have any application in the present case. Ferguson’s statements to police are corroborated by substantial evidence. There was evidence of a partially concealed plastic milk container lying on the living room floor in the house, of the container being found after the fire in the kitchen half full of gasoline, of the smell of a flammable liquid, of the physical evidence of a flammable liquid having been poured around Summers’ body, and of the soot which coated the interior of the living room being of a type produced by ignition of a flammable liquid.
Ferguson next contends that the admission into evidence of several statements she made to Officer Mills violated her Fifth Amendment right against self-incrimination. She complains of the admission of her comments in response to Mills’ telling her that Summers was dead: “Didn’t mean to kill him.” “Didn’t want to.” “I’m tired of this,” or, “I’m tired of it.” She states that these comments were made during a custodial interrogation and before she had been advised of her Miranda rights. She also complains of the admission of her statement, “I don’t have no injuries.” According to Ferguson, it was made after she had been advised of her Miranda rights and had invoked her right to remain silent. She contends that the statement was an involuntary response to Mills’ threat to have her strip-searched. Ferguson also mentions that she told Mills that she had drunk a six-pack of beer but did not feel intoxicated. It appears that she also may be complaining of the admission of this statement. It was made when Mills stated that she would be given a breath test, before the Miranda warnings were read.
The standard of this court’s review has been stated as follows:
“When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.” State v. Jones, 222 Kan. 56, Syl. ¶ 6, 563 P.2d 1021 (1977).
The district court concluded that Ferguson’s statements
“were not made while subject to interrogation and are therefore not rendered inadmissible under Miranda v. Arizona, 384 U.S. 436.
“. . . Rather, the statements made by defendant were in response to routine words and actions in processing the defendant which are normally attendant to arrests and custody as per Rhode Island v. Innis[, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980),] and State v. Taylor[, 231 Kan. 171, 173, 642 P.2d 989 (1982)].”
There is no question that Ferguson was in custody at the police station. Although she appeared there of her own volition, once she declared that she had killed a man by setting him on fire, she was not free to leave. Any interrogation which took place at the police station would be custodial. The question is whether she volunteered her statements or whether they were the result of interrogation.
In support of its position that Ferguson’s statements were voluntary and spontaneous and not the product of interrogation, the State cites Jones, 222 Kan. at 60. Jones and James Miller were placed in a line-up after they were arrested. After the line-up, Jones initiated an exchange with a police officer by asking if either he or Miller had been identified. When the officer answered, “ ‘Yes,’ ” Jones stated, “ ‘Miller wasn’t with me on the robbery.’ ” 222 Kan. at 60. This court upheld the district court’s admission of the statement on the ground that there was substantial competent evidence that “[t]he statement was not the product of an interrogation, but resulted from a conversation initiated by defendant.” 222 Kan. at 60. The court added that “[o]n many occasions” it
“has stated that statements which are voluntary and spontaneous, and not the result of interrogation, are admissible. (State v. Andrews, 218 Kan. 156, 542 P.2d 325; State v. Griffin, 217 Kan. 703, 538 P.2d 720; State v. Wilson, 215 Kan. 28, 523 P.2d 337; State v. Miles, 213 Kan. 245, 515 P.2d 742; State v. Nirschl, 208 Kan. 111, 490 P.2d 917.)” 222 Kan. at 60.
In the present case, Officer Mills prepared for what he anticipated might be a lengthy questioning by asking Ferguson if she needed a drink or medical assistance or if she needed to use the restroom. He also told her that a breath test would be performed to make certain that intoxication would not interfere with her understanding what was occurring and what she was being asked. Then Ferguson asked the officer “if he was dead.” Mills answered, “[Y]es,” and Ferguson responded, “Didn’t mean to kill him,” and so forth.
Ferguson points to Mills’ writing her statements on his hand. It appears that she construes his action as an indication that she was being interrogated. Mills’ having no paper on which to write may as readily be interpreted as showing that the interrogation had not yet begun and that he was not prepared for Ferguson to make any substantive statements. Further, as the State notes, Ferguson’s statement was not made in response to any question or comment directed to her.
In State v. McBroom, 252 Kan. 376, 382, 845 P.2d 654 (1993), this court reiterated that the voluntariness of a statement should be determined on the basis of the totality of the surrounding circumstances. “If the accused was deprived of his or her free will, the statement should be considered involuntary.” 252 Kan. at 382.
Ferguson’s various statements were not the result of interrogation, and they appear to be more voluntary than involuntary and more spontaneous than not. Even if we were to determine that it was error to admit the statements, the question becomes whether it was reversible error.
In State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991), the rule was stated as follows:
“Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. Staee v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). An error of constitutional magnitude cannot be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950 (1990).”
In State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), aff’d on rehearing 244 Kan. 193, 767 P.2d 1308 (1989), the defendant was convicted of child abuse and felony murder. A videotaped interview of the defendant taken some three hours after he reported the child’s death was admitted into evidence. The defendant was not given the Miranda warning until the interview was concluded. The court concluded: “[I]t ■ was error to admit the videotaped interview in this case, but that it was harmless error as we are satisfied that its exclusion would not have altered any of the three jury verdicts herein.” 243 Kan. at 476.
In the present case, the remark made by Ferguson upon entering the police station, “I just killed a man. I set him on fire,” was much more inculpatory than any of the remarks about which she complains. Following in the wake of her admittedly admissible statement, we can declare beyond a reasonable doubt that the other remarks would not have altered or changed the result of the trial.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Ralph Hess appeals the jury's finding for the defendant, St. Francis Regional Medical Center (St. Francis), in a negligence action, claiming the trial court erred in: (1) allowing into evidence his pretrial settlement with other defendants, and (2) ruling his workers compensation benefits could be considered as collateral source benefits in determining damages. Defendant asserts that the plaintiff failed to properly designate the ruling appealed from in his notice of appeal.
Hess, an employee of Vulcan Materials (Vulcan), was injured on the job. After Hess settled his workers compensation claim, Vulcan terminated Hess’ employment. Hess sued Vulcan, his former employer, for retaliatory discharge and for negligently failing to properly notify medical personnel of the caustic nature of the liquid that caused his burns. He also sued Chris Cookson, the plant nurse for Vulcan, and St. Francis for failing to act on the information from his employer that he had been burned by a caustic liquid. Without admitting liability for its conduct or action, Vulcan paid Hess $15,000 and waived its light to subrogate medical expenses and other workers compensation benefits previously paid to Hess. After the settlement, all the defendants except St. Francis were dismissed as parties to the action. However, at trial, the jury could still assess the fault of the defendants that had been dismissed.
In the pretrial order the parties stipulated to the facts of the settlement but did not agree to the admissibility into evidence of Hess’ settlement with Vulcan and Vulcan’s waiver of its right to subrogation for the workers compensation benefits paid. At trial, Hess alleged St. Francis was negligent in its treatment of his burn injuries and that its negligent treatment of the burns had aggravated his injuries. St. Francis claimed that Hess and the dismissed parties were at fault.
The pertinent facts are as follows. Hess was attempting to unplug a saltwater saturator by steam pressure. The saturator erupted, spraying him with liquid chlorine; hydrogen; and sodium hydroxide, a caustic substance; and salt water. Hess immediately went to a safety shower and rinsed off as much of the chemicals as possible.
After assisting in the control room, Hess began a second safety shower until emergency medical services (EMS) personnel arrived. The EMS personnel transported Hess to St. Francis for treatment. Hess claimed he informed the EMS personnel he had been burned with a superheated brine of heavy salt and caustic. An EMS employee who responded to the emergency call testified Hess told him he (Hess) had been burned with scalding salt water and had denied being burned with anything else.
Hess asserted that even though he informed the hospital personnel he had been exposed to caustic chemicals, which react violently with salt water, they treated him with a chlorine solution bath. When Hess attempted to get out of the chlorine solution, Dr. Jost, one of the treating physicians, ordered the nurses to let Hess out of the chlorine bath. Hess was then treated with a non-chlorine bath.
On cross-examination, Hess admitted that when the accident occurred he did not know what the liquid solution that had burned him contained. When the initial safety shower did not work as he hoped, Hess determined a caustic liquid was involved. Hess could not recall much of what had occurred after he arrived at the hospital.
Eric Phillips, an industrial hygienist for Vulcan, testified that when a worker is injured Phillips’ responsibility is to inform the hospital of “primary information” such as the type and cause of injury. Phillips stated he initially telephoned and informed Doctor Winegar and the St. Francis hospital emergency room personnel that Hess had been burned with hot brine. Phillips then phoned the plant and found out there could have been trace amounts of caustic, or hydrochloric acid, in the solution that burned Hess.
After learning a caustic solution was involved, Phillips went to the hospital. He arrived at the hospital at the same time as the ambulance. Phillips identified himself to people wheeling Hess into the hospital on a gurney. Phillips testified that when he heard Hess tell the nurse he had been burned with hot brine, Phillips interjected, “[Tjhere could be a trace amount of caustic or HCl.” Phillips stated tire nurse did not acknowledge his comment. Hess’ wife and stepdaughters testified that Phillips told them at the hospital that Hess had been burned with brine and did not mention the solution contained caustic chemicals. Phillips did not remember this conversation. The nurse did not remember Hess saying he had been burned by a caustic liquid. Phillips later talked to Dr. Jost but did not remember discussing the contents of the solution Hess was using when burned.
Cookson testified that the day after the accident a Vulcan manager told her to call Dr. Jost to confirm the doctor was aware of the fact that a caustic substance was involved in the accident. According to Cookson, later that day, when he informed Dr. Jost that Hess had been burned with a caustic liquid, the doctor replied he wished he had known that sooner. Dr. Jost testified he was not informed the first evening that a caustic burn was involved. If he had known caustic was involved, a different treatment would have been followed. The doctor’s notes reflected he was not told until three days after Hess’ admission that caustic was involved. If this fact had been known within six hours of the accident, the amount of scarring and disfigurement could have been reduced. Dr. Jost did not recall Hess telling the hospital personnel, when Hess was first placed in the tank, that he had been burned with caustic.
The jury found Vulcan 100% at fault. The trial court entered judgment in favor of St. Francis. Hess appealed to the Court of Appeals. This court, on its own motion, transferred the case to its docket.
APPELLANT’S NOTICE OF APPEAL
It is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. Hess’ notice of appeal challenged “the following portions of the jury verdict and judgment” entered by the trial court:
“1. The jury’s determination of comparative fault. (Special questions one and two).
2. The jury’s determination of the period of time over which payment of future economic loss would be needed. (Special question five).
3. The jury’s determination of net amount of collateral source benefits received to date. (Special question six).
4. The jury’s determination of net amount of collateral source benefits to be received in the future. (Special question seven).”
St. Francis contends K.S.A. 60-2103(b) requires the notice of appeal to designate the judgment or part thereof appealed from. It argues that because plaintiffs notice of appeal does not designate any trial court rulings as being challenged, consideration of any claim by Hess that the trial judge erred is precluded. For authority, St. Francis cites Anderson v. Scheffler, 242 Kan. 857, 861, 752 P.2d 667 (1988).
In Anderson, Jacob Anderson and his brother James had delivered a load of poultry meal to a plant. Jacob’s left leg was severed when it slipped into an auger. James went to his brother’s aid and observed that his brother’s leg had been severed. Both brothers filed suits against various defendants. After a lengthy battle in both the federal and state courts, part of the action was settled. At separate hearings, the Kansas district court granted defendants’ motions for summary judgment against each of the brothers. Only one notice of appeal was filed. The notice of appeal listed Jacob Anderson as the appellant, but not his brother James, and stated the appeal was being taken from the memorandum decision filed April 27, 1987. Each of the brothers was listed as an appellant in the briefs. The defendant asserted that because James was not listed as an appellant in the notice of appeal, the appellate court was without jurisdiction to hear James’ claim.
The Anderson court noted that James lacked standing on appeal because he was not listed as an appellant in the notice of appeal and Jacob had no standing to assert his brother’s appeal. The court held that it was without jurisdiction to hear the arguments of a party who was not named either directly or by inference in the notice of appeal. In addition, the court found it had no jurisdiction to hear Jacob’s appeal of the summary'judgment ruling of the court, filed December 29, 1986, because appeal of that judgment had not been designated in the notice of appeal. The issues on appeal were limited to those contained in the memorandum decision dated April 21, 1987.
Here, the notice of appeal specified Hess was appealing from certain portions of the jury verdict and the judgment entered by the court. Is Hess’ notice of appeal sufficient to include the comparative fault and collateral source benefits determinations raised by Hess in his appeal? To find if these issues can be addressed in the appeal, we must determine whether a notice of appeal should be narrowly or broadly construed.
In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326-27, 411 P.2d 616 (1966), appellant had failed to name the court appealed to. The appellee attempted to strike the appeal. We noted there was no basis to interpret the new Kansas Code of Civil Procedure as strictly as required by previous Supreme Court decisions. We observed that K.S.A. 60-102 provides for liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding. The code of civil procedure was not rewritten to make more technical and burdensome the requirements of the notice of appeal as construed by the court in its previous decisions. We found that the failure to name the court appealed to was not a ground for dismissal but an irregularity to be disregarded unless the appellee has been misled.
Using a liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding required by the code of civil procedure, we find that the notice of appeal was sufficient to include the issues stated in the appellant’s brief. The appellee does not claim that it was surprised or placed at a disadvantage by the issues appellant briefed.
II. ADMISSION OF SETTLEMENT INTO EVIDENCE
Prior to trial, Hess settled with Vulcan and its employees. He dismissed his claims against them. Hess proceeded to trial against the remaining defendant, St. Francis. The jury was to compare the fault of the defendants who had been dismissed from the action.
Over Hess’ objection, during cross-examination of Eric Phillips, Phillips informed the jury that Vulcan had been sued and had settled with Hess prior to trial. During cross-examination of Hess, the matter of settlement was also raised. St. Francis’ attorney asked Hess if he had sued and settled with his employer. Hess admitted that he had sued and settled with his employer. St. Francis’ attorney then asked if Hess had received $231,819.85 in workers compensation benefits from his employer. Hess stated he had received workers compensation but did not know the total amount. The attorney then asked Hess if he was seeking to recover expenses from St. Francis that had already been paid by Vulcan in the settlement. (It is not clear if Hess answered that question.) Finally, in the cross-examination of Dr. Jost, the doctor acknowledged that Vulcan had been sued by Hess.
It has been consistently held that offers of settlement and evidence of pretrial settlements with other parties to the action are generally inadmissible. There are two statutes which specifically concern the admissibility of evidence concerning settlement negotiations and settlements. K.S.A. 60-452 provides in part that evidence a person has, in compromise, furnished money or any other thing to another who claims to have sustained loss or damage is inadmissible to prove his or her liability for the loss or damage or any part of it. K.S.A. 60-453 states that evidence a person has accepted or offered or promised to accept a sum of money or any other thing in satisfaction of a claim is inadmissible to prove the invalidity of the claim or any part of it. K.S.A. 60-452 is concerned with possible prejudice to a party on the issue of liability. K.S.A. 60-453 is concerned with protecting the plaintiff s claim. The public policy behind these statutes is to promote settlement. Ettus v. Orkin Exterminating Co. , 233 Kan. 555, 567, 665 P.2d 730 (1983).
In Lytle v. Stearns, 250 Kan. 783, 830 P.2d 1197 (1992), this court discussed: (1) the disclosure of settlement agreements to the jury; (2) the admissibility of evidence regarding a settlement; (3) that the statements and defenses set out in the pleadings are not admissible as admissions; and (4) the cross-examination of a lay party witness regarding theories asserted against a party no longer in the lawsuit.
Lytle involved a survival and wrongful death action filed by the estate of the deceased against multiple defendants. Deborah K. Lytle was a passenger in a car involved in a head-on automobile collision. Deborah was transferred from the accident scene to a hospital by ambulance. At the hospital, Deborah went into cardiac and respiratory arrest and died. Deborah’s estate brought an action against the driver of the car she had been riding in, the hospital, and the ambulance driver. Other parties were im-pled into the lawsuit by the ambulance driver for comparative negligence purposes. Prior to trial, the estate settled with all defendants except the ambulance driver. Each of the settling defendants denied liability and stated that the payment of the specified amount to the plaintiff should not be construed as an admission of liability. The release and settlement agreements each contained a confidentiality provision.
Prior to trial, the plaintiff filed a motion in limine to prohibit the remaining defendant from referring directly or indirectly to any dismissal of parties who had previously been named as defendants. The defendant opposed the motion, claiming that Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), allowed the fact of settlement to be admitted into evidence. The Ratterree court had held that where any defendant has entered into a confidential settlement and the settling defendant is a witness at the trial of the remaining defendants or remains a party, the trial court shall disclose to the jury the existence and content of the settlement unless the court finds the disclosure will create substantial danger of undue prejudice, of confusing of the issues, or of otherwise misleading the jury. The trial court in Lytle denied the motion but precluded the defendant from mentioning the settlements. Later in the trial, the court informed the jury of the settlement.
On appeal, the plaintiff argued (1) that Ratterree applies only to sliding-scale agreements where the settling defendant retains an interest in the judgment and (2) that K.S.A. 60-452 and K.S.A. 60-453 prohibit evidence of compromise, settlement, or invalidity of a claim. The Lytle court noted the rule stated in Ratterree is broad enough to include any confidential settlement in any tort action involving multiple defendants when the settling defendant is a witness and either remains a party to the action or retains some financial interest in the litigation. 250 Kan. at 791. The Lytle court pointed out that Ratterree involved a sliding-scale settlement, also known as a Mary Carter agreement, which most courts insist be disclosed due to the possibility of prejudice or collusion because the settling defendant’s liability is decreased depending on the outcome of the trial. The Lytle court noted that the statutory purpose of K.S.A. 60-452 and K.S.A. 60-453 is to promote settlements. The Lytle court observed that none of the settling defendants in that case were still parties to the litigation, nor did they have a financial stake in the outcome or a claim against the remaining defendant and they had always denied that they were negligent. The court held under the facts it was error to admit the evidence of the settlements. As in Lytle, the settlement between Hess and Vulcan was not a Mary Carter agreement and should not have been disclosed to the jury.
St. Francis claims that the trial judge’s admission of the settlement, however, does not necessarily require reversal. To require reversal, the error must have prejudiced the substantial rights of Hess and affected the jury’s verdict. Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992). In Tamplin the erroneously admitted evidence was a doctor’s testimony that there was a slight possibility the injured child would have developmental problems but there was no evidence the child was aware of this possibility. We found the verdict was not out of proportion to the damages proven and that the erroneous admission of evidence did not substantially prejudice the defendant. 251 Kan. at 309. In this case, the resolution of the issue of St. Francis’ liability hinged on when the hospital personnel were told of the caustic nature of the burn. The erroneously admitted evidence of the settlement had a potential for a much greater impact on the jury’s verdict.
St. Francis next contends Lytle can be distinguished on the facts. It argues that in Lytle, the defendants who settled were not originally defendants in the case but were subsequently joined for comparison of fault. St. Francis notes that in Lytle the admission of the settlement was particularly prejudicial because the non-settling defendant did not present sufficient evidence of liability of all of the settling defendants but was allowed to imply all defendants who settled were at fault. It notes that in this case Vulcan, the settling defendant, was an original defendant instead of being brought in under joinder, and there was evidence of fault by the settling defendant. We find St. Francis’ contention is a distinction without a difference.
St. Francis also maintains that evidence of the settlement was relevant to show the bias of the witness Phillips, and that Hess’ theory of his injury changed after the settlement. St. Francis asserts that the probative value of the fact of settlement outweighed its prejudicial value and that the admissibility of this evidence was within the discretion of the court.
We disagree. Although an employee of Vulcan was a witness, Vulcan was not a party to the action, having been dismissed. Vulcan had paid an agreed amount and waived its subrogation rights to any damages recovered by Hess from St. Francis. Vulcan had no financial interest in the litigation by virtue of its waiver of subrogation rights. Because Vulcan waived subrogation, its monetary liability was fixed; therefore, evidence of the settlement was not relevant to show bias.
In addition, Hess’ theory of his injury did not change. His petition alleged liability under five separate causes of action involving Vulcan, its employees, and St. Francis. The claims were that Vulcan and its employees either intentionally or negligently failed to inform the hospital’s medical personnel caustic was involved or, in the alternative, that St. Francis negligently treated Hess if the hospital staff had been informed caustic was involved. The pretrial order noted Hess had settled his claims with all defendants except St. Francis. Hess’ only remaining claim was the fourth cause of action pled in his petition.
The admission of the evidence of settlement was not within the discretion permitted a trial court, and it should not have been admitted.
During cross-examination, St. Francis’ counsel questioned Hess about his claim against Vulcan in the original pleading and then asked him if, after having settled with Vulcan, he was now seeking to recover the same damages from St. Francis. Later, in closing argument, counsel for St. Francis discussed the fact Vulcan had also been sued and settled with Hess. In addition, he observed that the plaintiffs original position when he filed the action was that Vulcan was negligent because its safety officer had not told anybody anything about the contents of the solution that caused his injury. The attorney pointed out that after the settlement, plaintiff claimed that Vulcan’s safety officer did communicate the contents of the solution to St. Francis.
In Lytle, the plaintiff also contended that the trial court abused its discretion in permitting the defendant to introduce into evidence the prior pleadings and cross-examine a witness about the prior pleadings. The defendant in Lytle asserted that Kansas law allows the admission of abandoned pleadings into evidence as admissions against interest, subject to the party’s explanation. After a discussion of the various theories as to admission of prior pleadings, this court in Lytle observed it was dealing with con-clusory allegations as to law, not with objective facts, as eviden- tiary admissions contained in prior pleadings. The admissions introduced concerned allegations of conduct by former adverse parties. We noted that settlement is to be encouraged. We declined to set a bright line rule for the resolution of all situations regarding prior pleadings but set forth concepts to be considered by the judge. First, a lay party witness should not be cross-examined regarding theories or allegations of liability asserted against a former party who is no longer in the lawsuit if that former party was brought into the litigation as a party after being designated by an initial defendant for comparative negligence purposes under K.S.A. 1993 Supp. 60-258a. Second, written pleadings asserting theories or allegations of liability addressed against a former party who was in the action only for the purpose of comparing negligence should generally be excluded. 250 Kan. at 800.
We also noted:
“ ‘The modern equivalent of the common-law system [of pleadings] is the use of alternative and hypothetical forms of statement of claims and defenses, regardless of consistency. . . . [Pjleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow [such pleadings] to operate as admissions would render their use ineffective and frustrate their underlying purpose.’ ” 250 Kan. at 798 (quoting McCormick on Evidence § 265, 781 [3d ed. 1984]).
Hess, a lay party, should not have been cross-examined regarding theories or allegations of liability asserted in his pleadings against a former party who was only in the lawsuit for the jury to compare negligence. Each of the settling parties denied liability and had no financial interest in the outcome. Under the circumstances, it was error to allow Hess’ original pleadings to operate as an admission because it frustrated their underlying purpose.
These errors require that a new trial be held. The other issue, the admissibility of the workers compensation benefits as collateral source benefits, is moot. We note that we found the collateral source benefit statute involved, K.S.A. 1993 Supp. 60-3802, unconstitutional in Thompson v. KFB Ins. Co., 252 Kan. 1010, 1024, 850 P.2d 773 (1993).
Reversed and remanded for a new trial.
McFarland, J., not participating.
Six, J.,
concurring and dissenting: I agree that we have jurisdiction to entertain the appeal. I would affirm the trial court on the basis of harmless error.
I disagree with the majority’s statement that “Hess’ theory of his injury did not change.” Hess’ initial petition asserted negligence on the part of Vulcan, claiming: “Second Cause of Action . . . Plaintiff’s physician was told by Vulcan . . . employees . . . that Plaintiff had been burned with steam, which contained no caustic chemicals.” (Emphasis added.) “Third Cause of Action . . . [T]he existence of caustic chemicals in the steam which burned Plaintiff was, in fact, known to the . . . employees of Defendant Vulcan . . . when inquiry was made of them. Plaintiff believes their withholding of this information was intentional, in an attempt to shield Defendant from violations of federal safety regulations.” Hess claimed that Vulcan acted “negligently [in] failing to report the existence of caustic chemicals, when such facts were, or in the exercise of due care and caution, should have become known.”
After settlement with Vulcan, the case was submitted to the jury on claims as stated in the pretrial order. Hess claimed
“that he was burned by a caustic substance at Vulcan Materials on May 4, 1989. Following his injury he was admitted to St. Francis Regional Medical Center under the care of Dr. Gary Jost. At the time of admission plaintiffs burns were primarily second degree burns, not requiring skin grafts. Agents of Vulcan Materials Company informed medical personnel in the employment of defendant [St. Francis] of the caustic nature of the chemicals causing plaintiffs bums on May 4, 1989. This information was not communicated to plaintiffs physician.” (Emphasis added.)
Hess’ theory on the cause of his injury changed. Hess’ switch of the factual assertion concerning whether Vulcan had informed St. Francis of the caustic nature of the chemicals presented a difficult trial court judgment call concerning whether the limited cross-examination on Vulcan’s settlement should be admitted into evidence.
Any error resulting from the admission of the Vulcan settlement was harmless. Any error requiring reversal must have prejudiced the substantial rights of Hess and have affected the jury’s verdict. See Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d. 1102 (1992). We held in Tamplin that the erroneous admission of a physician’s testimony did not substantially prejudice the defendant. 251 Kan. at 309. The majority in the case at bar, without explanation, concludes that the erroneous admission of the Vulcan settlement “had a potential for a much greater impact on the jury’s verdict.”
The jury was instructed on the claims asserted by Hess and by St. Francis. The jury found Vulcan to be 100 percent at fault.
The burden is upon Hess to show that the jurors disregarded their oath, not as a matter of speculation, but as a demonstrable reality. There must be more than speculation that Hess did not receive a fair trial. Hess claims error in the admission of evidence. There is no presumption of prejudice. Hess must prove that the admission prejudiced him. See Walters v. Hitchcock, 237 Kan. 31, 35, 697 P.2d 847 (1985). I agree with and apply by analogy Justice Lockett’s statement in his dissent in Harrier v. Gendel, 242 Kan. 798, 802, 751 P.2d 1038 (1988), which we endorsed in Wisker v. Hart, 244 Kan. 36, Syl. ¶ 4, 766 P.2d 168 (1988), in overruling Gendel:
“Unlike the majority, I cannot find that as a matter of law the improper introduction of evidence of collateral source benefits into the trial was so inherently prejudicial that it caused the jurors to disregard their oath and the judge’s instructions and to decide the case on an improper ground. It is true the plaintiff did not receive a perfect trial, but he did receive a fair trial. I would affirm the judgment.” 242 Kan. at 802.
Hart answers the workers compensation benefits collateral source issue not reached by the majority in the case at bar. Admission of the benefits evidence does not require a new trial. Admission of that evidence effects the issue of damages, not liability. The error is harmless. See Hart, 244 Kan. at 47. | [
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The opinion of the court was delivered by
McFarland, J.:
The appellants herein, with one exception,
are open access common carriers that transport fuels in interstate commerce. The one exception, Mapco Fractionator, Inc., provides fractionating services to shippers of natural gas. Each is classified as a public utility for real and personal property tax purposes. Each was unsuccessful in its effort before the Director of Property Valuation (DPV) to have its property assessed on the same bases as is railroad property. Appeals were taken to the Board of Tax Appeals (BOTA), which upheld the decisions of the DPV. The appellants appeal from said BOTA order. The appellants contend the BOTA order is in violation of the uniform and equal requirement of art. 11, § 1 of the Kansas Constitution, the Equal Protection Clauses of the Kansas and United States Constitutions, and the Commerce Clause of the United States Constitution.
The appeals were presented to BOTA on stipulated facts. Here, as there, only questions of law are presented for determination. The circumstances giving rise to the controversies herein may be stated as follows. The tax years 1990 and 1991 are involved. At all pertinent times, art. 11, § 1(b) of the Kansas Constitution provided:
“(1) The provisions of this subsection (b) shall govern the assessment and taxation of property on and after January 1, 1989, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation. The provisions of this subsection (b) shall not be applicable to the taxation of motor vehicles, except as otherwise hereinafter specifically provided, mineral products, money, mortgages, notes and other evidence of debt and grain. Property shall be classified into the following classes for the purpose of assessment and assessed at the percentage of value prescribed therefor:
“Class 1 shall consist of real property. Real property shall be further classified into four subclasses. Such property shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
(A) Real property used for residential purposes including multifamily residential real property. 12%
(B) Land devoted to agricultural use which shall be valued upon the basis of its agricultural income or agricultural productivity pursuant to section 12 of article 11 of the constitution. 30%
(C) Vacant lots. 12%
(D) All other urban and rural real property not otherwise specifically sub-classified. 30%
“Class 2 shall consist of tangible personal property. Such tangible personal property shall be further classified into six subclasses, shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
(A) Mobile homes used for residential purposes. 12%
(B) Mineral leasehold interests. 30%
(C) Public utility tangible personal property. 30%
(D) All categories of motor vehicles not defined and specifically valued and taxed pursuant to law enacted prior to January 1, 1985. 30%
(E) Cofnmercial and industrial machinery and' equipment which, if its economic life is seven years or more, shall be valued at its retail cost when new less seven-year straight-line depreciation, or which, if its economic life is less than seven years, shall be valued at its retail cost when new less straight-line depreciation over its économic life, except that, the value so obtained for such property, notwithstanding its economic life and as long as such property is being used, shall not be less than 20% of the retail cost when new of such property. 20%
(F) All other tangible personal property not otherwise specifically classified. 30%
“(2) All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant’s and manufacturer’s inventories and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
This article was substantially amended in 1992, effective January 1, 1993, but said amendments are not at issue herein.
Under the provisions applicable herein, real and personal property owned by public utilities was to be assessed at 30 percent. The appellants and railroads are public utilities. K.S.A. 79-5a01.
In 1976, Congress enacted the Railroad Revitalization & Regulatory Reform Act of 1976 (Pub. L. 94-210, 90 Stat. 31, 54-5 [codified at 49 U.S.C. § 11503 (1988)]). The Act, commonly referred to as the 4-R Act, provides, in pertinent part:
“(a) In this section—
(1) ‘assessment’ means valuation for a property tax levied by a taxing district.
(2) ‘assessment jurisdiction’ means a geographical area in a State used in determining the assessed value of property for ad valorem taxation.
(3) ‘rail transportation property’ means property, as defined by the Interstate Commerce Commission, owned or used by a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title [49 U.S.C. §§ 10501 et seq.~\.
(4) ‘commercial and industrial property’ means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy.
“(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them:
(1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.
(2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection.
(3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.
(4) impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title [49 U.S.C. §§ 10501 et seq.].
“(c) Notwithstanding section 1341 of title 28 [28 U.S.C. § 1341] and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has jurisdiction, concurrent with other jurisdiction of courts of the United States and the States, to prevent a violation of subsection (b) of this section. Relief may be granted under this subsection only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent, the ratio of assessed value to true market value of other commercial and industrial property in the same assessment jurisdiction. The burden of proof in determining assessed value and true market value is governed by State law. If the ratio of the assessed value of other commercial and industrial property in the assessment jurisdiction to the true market value of all other commercial and industrial property cannot be determined to the satisfaction of the district court through the random-sampling method known as a sales assessment ratio study (to be carried out under statistical principles applicable to such a study), the court shall find, as a violation of this section—
(1) an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has to the trae market value of all other commercial and industrial property; and
(2) the collection of an ad valorem property tax on the rail transportation property at a tax rate that exceeds the tax ratio rate applicable to taxable property in the taxing district.”
The purpose of the 4-R Act was to prohibit discriminatory taxation of railroad real and personal property by state and local property tax laws and to promote the revitalization of the railway system nationwide. See Clinchfield R. Co. v. Lynch, 784 F.2d 545, 551 (4th Cir. 1986); State of Ariz. v. Atchison, T. & S.F.R. Co., 656 F.2d 398, 400 (9th Cir. 1981).
The 4-R Act spawned years of federal litigation wherein railroads sought to utilize it to reduce their real and personal property taxes in Kansas. See, e.g., Atchison, Topeka & S.F.Ry. Co. v. Lennen, 640 F.2d 255 (10th Cir. 1981); Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 552 F. Supp. 1031 (D. Kan. 1982), aff’d in part, rev’d in part 732 F.2d 1495 (10th Cir. 1984); Atchison, T. & S.F.Ry. Co. v. Lennen, 531 F. Supp. 220 (D. Kan. 1981).
That litigation ended in 1989 with the entry of consent decrees. The parties rely on the decree entered on August 11, 1989, in Burlington Northern Railroad Company v. Rolfs, D. Kan., No. 89-4124-R, filed August 11, 1989. The effect of this decree was to fix the railroads’ assessment rate for real property at 25 percent for 1990 and 22.3 percent for 1991. The parties have stipulated that 80 percent of the.railroads’ personal property was exempted from taxation with the balance of 20 percent to be assessed at 30 percent of the value. Like BOTA, we are at a loss from the record to see the basis for this exemption, but accept the parties’ stipulation for the purposes of this appeal.
The appellants’ basic position is quite simple and direct. They believe they are entitled to the same deal the railroads received for the tax years 1990 and 1991 as a result of the consent decree. There is no challenge herein to any portion of the decree. The appellants are seeking only to be taxed on the same basis as to their real and personal property for the years in dispute in the respective cases.
UNIFORM AND EQUAL
For their first issue, appellants contend that the disparate treatment between pipelines and railroads violates the Kansas constitutional mandate of uniform and equal treatment among members of the same subclass. Under art. 11, § 1(b), pipeline and railroad real estate are in subclass (D) to be assessed on the basis of 30 percent of value, and their tangible personal property is in subclass (C), also to be assessed at 30 percent of value.
For many years art. 11, § 1 provided that all property was to be assessed on a uniform basis with exceptions thereto being limited to particular types of property, regardless of ownership.
Under this system, for example, typewriters of the same make and model, purchased the same day, should be assessed at the general rate regardless of the nature of the usage thereof by the respective owner. It would matter not whether a particular typewriter was owned by a public utility, a manufacturer of goods, or a grocery store. The philosophy underlying this concept was set forth in Wheeler v. Weightman, 96 Kan. 50, 58, 149 Pac. 977 (1915), as follows:
“The essentials [of the Uniform and Equal Clause] are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax.”
Under the 1985 amendments to art. 11, § 1, real estate was essentially classified by usage, and personal property was essentially classified by ownership. This basic alteration in the scheme of taxation must be borne in mind when reading our earlier cases.
The appellants contend that one of these cases, Voran v. Wright, 129 Kan. 601, 284 Pac. 807 (1930), is dispositive of this issue. We do not agree. The DPV and the amici herein contend Voran is inapplicable. Their reasons vary. The pertinent portion of art. 11, § 1 involved in Voran was as follows:
“The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.” (Emphasis in original.) 129 Kan. at 606.
Of this provision the Voran court stated:
“Whatever may have been proper as to classification of owners under this section before the amendment, there can no longer be any question in that regard. A classification as to owners is not now permissible. The only classification authorized or tolerated by this constitutional provision is that of property, and it makes no difference by whom it may be owned, whether by individual, merchant, manufacturer, banking institution or other corporation. Every classification is now limited to property, and only four kinds of property, viz., mineral products, money, mortgages, notes and other evidence of debt.” 129 Kan. at 606-07.
The underlying problem in Voran was the taxation of the property of national banks. Of this the Voran court stated:
“National banks, being governmental agencies, would not be subject to a tax imposed by the state, and the only way to reach the property of national banks was by an indirect method sanctioned by this act of congress. It is argued that the state could have taxed the shares of stock in national banks without the permission thus granted by congress, but it has been granted with requirements and restrictions, and this state and all others have attempted to comply with the restrictions and terms imposed rather than try to accomplish the same in disregard of such consent, even if it could have been so done.
“Instead of taxing the national bank on the valuation of its property, the act authorizes the state to tax its shares of stock against the holders thereof, but the act expressly prescribes that such tax shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state coming into competition with the business of national banks. This act is known as section 5219 of the Revised Statutes of the United States, which was amended in 1923 and again in 1926, and is in part as follows:
‘Sec. 5219. The legislature of each state may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several states may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with:
T. (a) The imposition by any state of any one of the above four forms of taxation shall be in lieu of the others, except as héreinafter provided in subdivision (c) of this clause.
‘(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state coming into competition with the business of national banks: Provided, That bonds, notes or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.’ ” 129 Kan. 605-06.
In the effort to comply with the federal law and thus reach national bank property for taxation purposes, the Kansas Legislature enacted certain statutes. A federal court held that share-owners of national banks could not be subjected to the general ad valorem tax rate under section 5219. This left state bank shareowners being assessed at the general rate and national bank shareowners being assessed on the lower intangible tax rate. The Voran court, applying the constitutional provisions in effect at the time, held certain portions of one of the statutes unconstitutional and thereby permitted the plaintiff owners of state bank shares to be taxed at the intangibles tax rate, as were their counterparts owning national bank shares.
Voran is distinguishable in a number of respects from the situation before us. National bank property at the time in Voran was not taxable except by compliance with the federal act. Art. 11, § 1, in the form in effect in Voran, did not contain a classification system. There were no exceptions to the general rate other than for mineral products, money, mortgages, notes, and other evidence of debt which the legislature could classify and take uniformly throughout the particular class. Shares of stock were in none of these exceptions. The present form of art. 11, § 1 classifies real and personal property based in part upon usage or ownership.
The 4-R Act, as it applies to Kansas and as reflected in the consent decree, simply required that railroad property be assessed at no higher rate than commercial or industrial property. Railroad property was thereby made an exception to subclasses to which public utility property was assigned. This exception was amended into art. 11, § 1 in 1992, where the public utility real property subclass and the commercial and industrial subclasses provide:
“(5) Public utility real property, except railroad real property which shall be assessed at the average rate that all other commercial and industrial property is assessed. 33%
“(6) Real property used for commercial and industrial purposes and buildings and other improvements located upon land devoted to agricultural use.25%”
Likewise in the 1992 amendment, personal property subclasses for public utility and commercial and industrial property provide:
“(3) Public utility tangible personal property including inventories thereof, except railroad personal property including inventories thereof, which shall be assessed at the average rate all other commercial and industrial property is assessed. 33%
“(5) Commercial and industrial machinery and equipment which, if its economic life is seven years or more, shall be valued at its retail cost when new less seven-year' straight-line depreciation, or which, if its economic life is less than seven years, shall be valued at its retail cost when new less straight-line depreciation over its economic life, except that, the value so obtained for such property, notwithstanding its economic life and as long as such property is being used, shall not be less than 20% of the retail cost when new of such property.25%”
We agree with appellants that a “uniform and equal” requirement has been constant in art. 11, § 1, but there has been a pertinent shift in the application of the requirement. In Voran, art. 11, § 1 essentially had all property in one grouping with certain specific types of property being excepted therefrom for classification, if the legislature desired. The legislature was charged with providing a uniform and equal rate of assessment and taxation for the general group and to tax the excepted types of property uniformly within their respective class. In contrast, the form of art. 11, § 1 before us classifies all real and personal property and fixes the assessment rate for each subclass. The legislature is charged with providing only a uniform and equal basis for valuation and rate of taxation. Thus, rate of assessment for particular property is now contained within the article and is not a matter for the legislature to determine on a uniform and equal basis. Under the article, public utility property is assessed at 30 percent.
This distinction has much to do with the result reached in Voran. Bank shares, not being in an exception, would ordinarily be in the general group. To bring national bank shares into the tax base, the legislature enacted legislation which ran afoul of federal law and resulted, as a result of a federal court decision, in state bank shares being taxed on a different basis than federal bank shares. Portions of the statutes which had led to this result were held violative of the legislature’s duty to provide a uniform and equal rate of assessment and taxation.
In the case before us, the 4-R Act placed limitations on state taxation of railroad property. Railroad property had to be treated the same as “other commercial and industrial property.” There can be little doubt that this is a preemption. If it is not a preemption, the 4-R Act is just a piece of paper suggesting railroads should be treated like other commercial and industrial property and the enforcement section thereof is surplusage. Clearly, that was not the Congressional intent in enacting the 4-R Act.
In Goben v. Barry, 237 Kan. 822, Syi. ¶ 3, 703 P.2d 1378 (1985), a preemption case, we held:
“In making a determination of federal preemption, a court should examine those concerns emphasized by Congress in enacting the legislation. State law should be preempted only to the extent necessary to protect achievement of the purposes of the federal act in question.”
The purpose of the 4-R Act was to benefit and revitalize railroads. The brief of the Department of Revenue states pipeline companies attempted unsuccessfully to obtain like federal legislation in their favor. The statement is not disputed. In any event, there is absolutely no indication in the record that Congress intended, by the enactment of 4-R, to preempt or affect how pipeline property was assessed or taxed by the states. Limiting the preemption of the 4-R Act to its purposes and application results in minimal interference with the classification system provided by art. 11, § 1.
The appellants argue that we should adopt the rationale of the Nebraska Supreme Court in Northern Natural Gas Co. v. State Bd. of Equal., 232 Neb. 806, 443 N.W.2d 249 (1989). Nebraska held in favor of the pipelines in their quest to be afforded the same favorable treatment as railroads under the 4-R Act. We decline to do so. The Nebraska Constitution does not have property classifications and is more akin to art. 11, § 1 in the form applicable in Voran. We do. not find the Nebraska rationale persuasive on this issue.
In Federal Exp. Corp. v. Tenn. State Bd., 717 S.W.2d 873 (Tenn. 1986), the Tennessee Supreme Court rejected a similar challenge on “uniform and equal” grounds. This case will be discussed in more detail in the next issue.
We conclude that the BOTA order refusing to afford the appellants their requested relief of having their property assessed on the same basis as railroads is not violative of the uniform and equal provision of art. 11, § 1 of the Kansas Constitution.
EQÜAL PROTECTION
For their second issue, appellants contend the BOTA order is violative of the Kansas and United States Constitutions’ Equal Protection Clauses.
The 14th Amendment of the United States Constitution provides that no state can malee or enforce a law which shall deny to any person within its' jurisdiction the equal protection of the laws. Section 1 of the Bill of Rights of the Kansas Constitution provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Appellants do not argue the Kansas Constitution grants them any greater rights herein than does the United States Constitution. In the following discussion, we will refer only to the United States Constitution, but such discussion should be considered as being equally applicable to the Kansas Constitution argument.
Similar arguments were raised in two cases in other jurisdictions and rejected.
In State v. Colonial Pipeline Co., 471 So. 2d 408 (Ala. Civ. App. 1984), the Alabama Court of Civil Appeals considered an oil pipeline’s challenge to the assessment of its property at the public utility rate, which was the highest rate under Alabama’s classification system. Colonial contended, inter alia, that assessment of railroad property which was in the same classification as the pipeline at a lesser rate by virtue of the 4-R Act was violative of the Equal Protection Clause of the United States Constitution. The Alabama court stated:
“If there may be some discrimination against Colonial, it is not arbitrary or unreasonable. Until the state was specifically forbidden to tax the property of railroads at a higher assessment ratio than other commercial and industrial property by Congress in 49 U.S.C.A. § 11503, it classified the property of railroads as Class I property. Moreover, until forbidden to do so by the Circuit Court of Montgomery County in Delta Airlines v. Department of Revenue, Civil Action No. CV-80-116-G, the Department classified the property of airlines as utilities and taxed them as Class I property. The Tax Equity & Fiscal Responsibility Act of 1982, § 532 amending 49 U.S.C. § 1513(b) and (d), now has the effect of forbidding the state from assessing property of air carriers at a higher rate than other commercial and industrial property.
“Currently, the state is specifically forbidden to classify the property of motor carriers as Class I property by 49 U.S.C. § 11503a, which gives the motor carriers the same protection from high assessment rates that is afforded railroads and air carriers. Were it not for the supremacy of federal statutes over state law, airlines, trucldines and railroads, which are included in § 40-21-1, would be subject to the same Class I classification as is assigned Colonial’s property. The preemption for tax purposes of those other entities does not destroy the classification by state law from which they were exempted and to which Colonial continues to belong.” 471 So. 2d at 412-13.
In Federal Exp. Corp. v. Tenn. State Bd., 717 S.W.2d 873, a taxpayer challenged its property assessment as a public utility rather than as commercial and industrial property. While ruling that the plaintiff taxpayer was a “public utility” for ad valorem taxation, the Tennessee Supreme Court turned aside the taxpayer’s equal protection argument, stating:
“Federal Express also argues that to assess its property for ad valorem tax purposes at 55% of its value, while assessing the property of railroads at the industrial and commercial rate of 30% of value, violates the Equal Protection Clause of the United States Constitution and Article II, Section 28 of the Tennessee Constitution, which requires ‘the ratio of assessment to value of property in each class or subclass shall be equal and uniform throughout the state.’ The legislature classified railroads as public utilities and assessed them for ad valorem tax purposes at 55% of the value of their properties. However, the Congress of the United States, by Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503 (’4-R Act’), preempted the state classification of railroads and provided that they should be taxed as industrial and commercial property are taxed. The Act, having as its purpose the revitalization of railroads, affected only that business. Thus leaving in effect the state classification of other businesses as public utilities. The assessment of each of the businesses classed as public utilities is at the same ratio to value as the assessment of Federal Express property; consequently, we find no violation of either Article II, Section 28 of the Tennessee Constitution or the Equal Protection Clause of the Federal Constitution.” 717 S.W.2d at 875-76.
To buy the appellants’ argument, we would have to conclude the 4-R Act, in essence, eliminated the public utility subclass of personal property and transferred the same to the commercial and industrial subclass and made a major alteration to the “all other” subclass relative to real property. Again, appellants rely on the Nebraska case of Northern Natural Gas Co. v. State Bd. of Equal., 232 Neb. 806, which held that taxing pipeline property on a different basis than railroad property was violative of the Equal Protection Clause as well as the uniform and equal state constitutional requirement. Again, we find the Nebraska opinion unpersuasive.
Art. 11, § 1 treats all public utility property alike. The 4-R Act affects only railroad property and preempts the classification only as to such property.
Appellants complain that BOTA did not address its equal protection arguments in the order entered. It is true the BOTA order does not specifically refer to the equal protection argument as such, but, from the language employed therein and the cases cited, it is clear such was considered.
We conclude that the BOTA order is not violative of the Equal Protection Clauses of the United States or Kansas Constitutions.
COMMERCE CLAUSE
For their third issue, appellants contend the BOTA order is violative of the Commerce Clause of the United States Constitution.
The Commerce Clause provides that the “Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.” U.S. Const, art. I, § 8, cl. 3. State regulation that is contrary to the constitutional principle of insuring that the conduct of individual states does not work to the detriment of the nation as a whole is invalid under the dormant Commerce Clause. Wardair Canada v. Florida Dept. of Revenue, 477 U.S. 1, 7-8, 91 L. Ed. 2d 1, 106 S. Ct. 2369 (1986).
Appellants assert that the property tax imposed by the State of Kansas upon pipeline property violates the Commerce Clause of the United States Constitution because the tax is discriminatory and unduly burdensome upon interstate commerce and violative of the third and fourth prongs of the four-prong test enumerated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (1977). The four-prong test enumerated in Complete Auto is: (1) The tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to the services provided by the state. 430 U.S. at 279.
Appellants’ argument on this issue lacks focus. Much of it seems to be a broad criticism of the classification system itself without any reference to railroads or the 4-R Act. This argument is difficult to understand. Public utility real estate is in the “all other” subclass which includes everything but residential property, agricultural land, and vacant lots. Public utility personal property has its own subclass. Pipeline operations crossing only county lines are assessed at the same rate as are those crossing state lines. Kan. Const, art. 11, § 1; K.S.A. 79-5a01. Pipeline property is valued by the unit valuation method and that valuation is apportioned to Kansas based on the percentage the pipeline company’s original cost in Kansas bears to the total original cost of the company. See K.S.A. 79-5a04. Thus, as required by Commonwealth Edison Co. v. Montana, 453 U.S. 609, 69 L. Ed. 2d 884, 101 S. Ct. 2946 (1981), a pipeline company’s property is assessed in Kansas in proportion to the pipeline’s presence in the state.
The facts herein do not support a serious challenge based upon the Commerce Clause. The appellants contend the DPV and BOTA violated the Commerce Clause by not giving them the tax advantage that the 4-R Act mandated for the railroads. The appellants and the railroads are all engaged in interstate commerce. Kansas treated them alike in its constitution and in its statutory definition of public utilities. Congress chose to favor the railroads by enactment of the 4-R Act. Congress is the source of the alleged discrimination underlying this appeal. Appellants do not challenge the 4-R Act or the consent decree thereunder. Rather, they want to ride piggyback to gain the same tax treatment in Kansas.
We find no violation of the Commerce Clause in BOTA’s refusal to extend the 4-R Act and the federal court order to appellants and to order appellants’ property be assessed on the same basis as railroad property.
We conclude that the BOTA order is not violative of the Commerce Clause of the United States Constitution.
The order of the Board of Tax Appeals is affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Richard Harmon, was convicted of first-degree murder of his younger brother, Jimmy Harmon, and sentenced pursuant to the jury’s recommendation for a period of life, with no parole before 40 years. The defendant appeals his conviction and sentence.
The defendant seeks reversal of his conviction because (1) the trial court refused his requested instruction on involuntary manslaughter; (2) the trial court instructed the jury to weigh an un-sworn taped statement made by a witness by the same standards as testimony given under oath; and (3) the trial court limited cross-examination. In addition, the defendant claims his sentence must be set aside because of erroneous instructions to the jury concerning the hard 40 sentence. Finding no reversible error, we affirm the conviction; however, we vacate the sentence and remand for resentencing.
The defendant lived in Wichita with his father and younger brother, Jimmy. On the evening of the murder, the defendant and a friend, Steve McCoy, went out together. After drinking for awhile, both began looking for Jimmy so the three of them could enjoy the rest of the evening together. They found Jimmy at a bar with a girlfriend. The four went to another bar, drank some more, and during the early morning hours, parted company. The defendant and McCoy, while driving home, spotted Jimmy’s truck parked near the side of the road. The defendant stopped his truck and attempted to talk with his brother, but a scuffle ensued. The defendant got the worst of this encounter and testified that he was “furious, humiliated, and scared.” He testified at trial that his brother approached him with a tire iron, but the defendant had not mentioned this fact in an earlier statement to the police.
After the encounter, the defendant went home, found his father’s loaded revolver, and returned to find his brother. Upon coming out of the Town and Country store after purchasing a package of cigarettes, he spotted his brother. He walked toward his brother, pulled out the revolver, pointed it at his brother, and shot him two times in the chest and once in the back of the neck as his brother turned away. The defendant claimed he was scared and that his brother had threatened him and had lunged toward him with his hands in the air as he fired the revolver.
Involuntary Manslaughter
The defendant argues that the trial court erred by not giving his requested instruction on involuntary manslaughter. He argues that the evidence at trial established that he committed a lawful act (self-defense) in an unlawful manner (with excessive force).
The defendant is correct that the use of excessive force in self-defense may under some circumstances require an instruction on involuntary manslaughter. State v. Gregory, 218 Kan. 180, 186, 542 P.2d 1051 (1975). “Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner.” (Emphasis added.) K.S.A. 21-3404.
Although the trial court gave an instruction on self-defense, under the facts of this case, the trial court was not obligated to instruct on self-defense or involuntary manslaughter. The facts in this case are analogous to the facts in State v. Meyers, 245 Kan. 471, 781 P.2d 700 (1989). In Meyers, the defendant left an altercation, retrieved a weapon, returned to find the parties involved, and upon being attacked by those parties, killed one person and injured another. In Meyers, we said that the defendant was neither entitled to a self-defense instruction nor an instruction on involuntary manslaughter.
Although the defendant said more than once he did not want to or intend to kill his brother, we have held that such statements alone are insufficient to establish that the killing was unintentional if, when viewed in light of other competent evidence, such testimony is insubstantial. State v. Dixon, 248 Kan. 776, 786-87, 811 P.2d 1153 (1991); State v. Staab, 230 Kan. 329, 340, 635 P.2d 257 (1981).
The defendant fought with his brother earlier in the evening. Plis brother got the best of him in that encounter and belittled him in front of Steve McCoy. The defendant testified that he was “furious, humiliated, and scared.” He got into his truck and drove to his father’s house for the sole purpose of obtaining a gun, which he intended to use against his brother. He found an unloaded rifle, looked for shells without success, eventually found his father’s loaded revolver, and left the house looking for his brother.
When he arrived at the location where he expected his brother to be, he hid his truck, concealed the loaded gun in the back of his pants, and went into the Town and Country store to purchase a pack of cigarettes. As he was leaving the store, he saw his brother, approached his brother, pulled out his revolver, pointed it at his brother, and fired it several times. He testified that he knew shooting his brother two times in the chest and once in the back could kill him.
The defendant contends this case is controlled by State v. Hill, 242 Kan. 68, 744 P.2d 1228 (1987). In Hill, the defendant had a gun in her purse to take back to her house because she was concerned about prowlers. She did not know the gun was loaded. She and her brother and a friend went to a bar. The entrance was very dark and crowded. The victim pushed the defendant several times and said something to the defendant that made the defendant afraid. The defendant reached for her pistol because she could not see the victim’s hands and was afraid for her life. Several witnesses corroborated the defendant’s testimony. 242 Kan. at 72-73. We held that the trial court erred in refusing to instruct on involuntary manslaughter. 242 Kan. at 78.
Unlike Hill, the defendant in this case was the aggressor. He went looking for his brother with a loaded gun for the express purpose of shooting his brother “if [he] had to.” Even with the defendant’s testimony that his brother threatened him verbally, was hostile and still angry, and lunged at the defendant with his hands in the air, the defendant, as the aggressor, was not entitled to use deadly force in self-defense unless he had exhausted every other reasonable means to escape the danger he perceived. State v. Rutter, 252 Kan. 739, 747, 850 P.2d 899 (1993). At the time of the shooting, the defendant was not, therefore, engaged in a lawful act.
In Meyers, the defendant, not unlike this case, claimed that he was entitled to an instruction on involuntary manslaughter because the evidence showed he committed the lawful act of self-defense in an unlawful manner. We noted that a duty to instruct on all lesser crimes “arises only when there is evidence under which the defendant may reasonably be convicted of the lesser offense. State v. Bishop, 240 Kan. 647, Syl. ¶ 7, 732 P.2d 765 (1987).” State v. Meyers, 245 Kan. at 474. In Meyers, we noted:
“Subsection (2) of K.S.A. 21-3214 does not allow an individual who ‘[initially provokes the use of force against himself or another’ to claim he was defending himself. Meyers provoked all confrontations with die Esquivel brothers. After the second confrontation, Meyers temporarily withdrew, returned to his hometown, armed himself with a rifle in order to assault the brothers, and then returned to Garden City. As for the fatal confrontation, the defendant drew the Esquivels from their home and lured them to the secluded area where he intended to physically harm them. In addition, the exceptions of subsections (3)(a) and (b) do not apply to Meyers. Meyers could have avoided the fatal confrontation by remaining in Deerfield.” 245 Kan. at 477.
Not unlike Meyers, the defendant in this case could have avoided the fatal confrontation by simply not returning with a loaded revolver to find his brother.
Finally, we recognize that a defendant “has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court.” We also recognize that “the unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct.” State v. Deavers, 252 Kan. 149, Syl. ¶ 1, 843 P.2d 695 (1992). However, the evidence must be substantial, and “there must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.” State v. Gonzales, 253 Kan. 22, Syl. ¶ 2, 853 P.2d 644 (1993). The evidence considered by the trial court in its rejection of the defendant’s involuntary manslaughter instruction would not justify a jury finding of an unintentional killing or of a lawful act done in an unlawful manner.
Jury Instruction on Unsworn Statement
The defendant was also charged with the attempted murder of Steve McCoy. McCoy’s trial testimony departed significantly from his earlier statements to the police and his preliminary hearing testimony. The State was allowed to treat McCoy as a hostile witness. His prior statements were used to impeach his trial testimony. The court later allowed the State to introduce McCoy’s earlier statements as substantive evidence- pursuant to K.S.A. 1992 Supp. 60-460(a), which provides an exception to the hearsay rule for previous statements by a person who is present and. available for cross-examination. The State played for the jury a tape recording of McCoy’s statement to the police and read the transcript of his preliminary hearing testimony.
The trial court gave instruction No. 16 over defense counsel’s objection. Instruction No. 16, a modification of PIK Crim. 3d 52.12, provided:
“During this trial, evidence was presented by the reading of testimony of Steve McCoy taken under oath or otherwise recorded at another time and place. It is to be weighed by the same standards as other testimony.”
The defendant argues on appeal that the court erred in giving that instruction because it advised the jury “that unsworn testimony was to be given the same kind of weight as sworn testimony.” Instruction No. 16 departs from PIK Crim. 3d 52.12 by the addition of the words “or otherwise recorded.” The defendant contends this change is significant because PIK Crim. 3d 52.12 was intended only to address sworn testimony that happened to be taken at another time or place.
The defendant is correct that PIK Crim. 3d 52.12 covers sworn testimony. It is titled “Testimony taken before trial.” In its original form, it refers only to “testimony of a witness taken under oath at another time and place.” Black’s Law Dictionary defines “testimony” as “[e]vidence given by a competent witness under oath or affirmation.” Black’s Law Dictionary-1476 (6th ed. 1990). The fact that the trial court departed from the standard PIK instruction does not establish error. The question is whether the instruction given misleads the jury- or in sortie way prejudiced the defendant’s right to a fair trial. It should be noted that the defendant does not contend that the out-of-court statements were improperly admitted under K.S.A. 1992 Supp. 60-460(a) and K.S.A. 60-401(b).
Instruction No. 16 instructs the jury that McCoy’s out-of-court statements are to be “weighed by the same standards as other testimony.” The court did not instruct the jury that it should give the same weight to unsworn statements as it gave to sworn testimony; it merely instructed the jury to weigh that evidence by the same standards as it weighed other testimony. The jury was clearly advised that it was for them “to determine the weight and credit to be given the testimony of each witness.”
During oral argument, counsel for the defendant was asked whether it would be appropriate to instruct the jury that sworn testimony should be given more weight than unsworn statements. Counsel acknowledged that such an instruction might completely distort the factfinding process. For example,' a defendant may confess to a crime before trial, but deny guilt at trial. Under these circumstances, the instruction the defendant would have had the trial court give in this case would most certainly have distorted the factfinding process.
All relevant evidence admitted is to be considered by the jury in arriving at its verdict. In this case, the trial court simply instructed the jury to consider McCoy’s statement as well as his testimony and weigh it all by the same standards as other testimony. It was for the jury to decide what weight and credit to be given to the evidence considered in arriving at a verdict. Advising the jury to treat testimony a certain way and a witness’ prior unsworn statements admitted into evidence another way would distort the factfinding process. Counsel may argue on final argument that less weight should be given to an unsworn prior statement than to sworn testimony, but in the final analysis the jury is to determine the weight and credit to be given to all relevant evidence admitted at trial. The instruction given was not erroneous.
The defendant’s reliance on Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), is misplaced. Neither case addresses the question raised by the defendant.
In Chambers, the defendant called a witness to introduce the witness’ written confession to the crime at issue. On cross-examination, the witness repudiated the confession and asserted an alibi. The court denied the defendant’s motion to treat the witness as a hostile witness. The trial court also excluded as hearsay the testimony of three other witnesses to whom the first witness had confessed the crime shortly after it occurred. The United States Supreme Court reversed and remanded, finding that the trial court violated the defendant’s right to confront and cross-examine adverse witnesses and to present witnesses in his own behalf.
In Chapman, the defendants appealed their convictions, alleging that the prosecutor and the court made improper comments about the defendants’ failure to testify. The Supreme Court reversed, finding that the repeated references to the defendants’ choice not to testify was not harmless error.
Limitation upon Cross-Examination
One of the defendant’s theories of defense was that his voluntary intoxication made him incapable of forming the specific intent necessary for the crimes charged. The jury was instructed on the defense of voluntary intoxication. The defendant was stopped by a Wichita police officer while leaving the scene of the crime in his truck. At trial, the court sustained the State’s objection to the defendant’s attempt to elicit testimony from a police officer about the field sobriety tests that typically are conducted when a driver is suspected of driving while under the influence. The defendant argued at trial that the officer’s direct testimony had given the jury the impression that the defendant was not intoxicated and that he should have been entitled to present to the jury the officer’s testimony that he did not do any of the standard field sobriety tests. Thus, the officer could not say for sure that the defendant was not intoxicated.
The defendant is correct that a criminal defendant has a right to present a full and complete defense and that includes the right to confront and cross-examine the witnesses against him, citing Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987), and Chambers, 410 U.S. 284. As the State notes, however, the right to cross-examine witnesses is subject to evi-dentiary rules, and the trial court has broad discretion in controlling the examination. State v. Mitchell, 234 Kan. 185, 188, 672 P.2d 1 (1983); In re Nichols, 2 Kan. App. 2d 431, 434, 580 P.2d 1370, rev. denied 225 Kan. 844 (1978).
The officer testified on direct that when he instructed the defendant to get out of the car, keep his hands on his head, and walk backward toward the sound of the officer’s voice, the defendant was able to do so “in a fairly straight line.” The officer testified that he noticed a slight odor of alcohol on the defendant, but that the defendant’s eyes were not “extremely bloodshot,” and his speech was clear. The officer testified that he “wouldn’t say that [defendant] was very intoxicated.”
On cross-examination, the officer testified that he had the defendant walk backwards as a safety precaution, not a sobriety test. The officer testified about his familiarity with field sobriety tests and that the defendant’s driving did not give the officer reason to believe that the defendant was intoxicated. The officer testified that even though he smelled alcohol on the defendant’s breath, he was not concerned about how much the defendant had had to drink, even though intoxication might affect the accuracy of the defendant’s statements. The officer’s testimony on cross-ex- animation certainly left the impression that the officer did not conduct any specific field sobriety tests to determine whether the defendant was legally intoxicated. Because that is precisely what the defendant sought to accomplish with the inquiry about specific types of tests, the court properly ruled that the subject matter had been covered.
The evidence at trial also indicated that the shooting occurred at about 3:05 a.m. and that the defendant’s blood alcohol concentration between 4:30 and 5:00 a.m. was .097. Evidence of the combination of the lack of field sobriety tests and the relatively high blood alcohol concentration two hours after the shooting accomplished the defendant’s goal of undermining the credibility of the officer’s testimony that the defendant did not appear to be “very intoxicated” at the time he was picked up.
Sentencing
The State sought a mandatory term of imprisonment of 40 years under the provisions of K.S.A. 1992 Supp. 21-4624. K.S.A. 1992 Supp. 21-4624(2) provides that
“upon conviction or adjudication of guilt of a defendant of murder in the first degree based upon the finding of premeditated murder, the court upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years.”
K.S.A. 1992 Supp. 21-4624(3) provides guidance for the court, the defendant, and the State concerning what is relevant evidence relating to aggravating and mitigating circumstances. K.S.A. 1992 Supp. 21-4624(4) provides:
“At the conclusion of the evidentiary portion of the sentencing proceeding, the court shall provide oral and written instructions to tire jury to guide its deliberations.”
■ All of the defendant’s claims' regarding sentencing center upon the instructions given by the trial court under the provisions of 21-4626(4). It should be noted that the court did not have the PIK instructions available at the time of sentencing.
The defendant raises three contentions with reference to the instructions on sentencing. First, the defendant claims that the trial court erred in refusing his request to specifically instruct on the mitigating circumstance of intoxication. Second, the defendant contends that the court erred in instructing the jury that sympathy should not be considered by it in determining his sentence. Finally, the defendant claims that the court erred because, under its instructions, the jury was allowed to conclude that any mitigating factors had to be found by unanimous vote and beyond a reasonable doubt.
The refusal of the court to give the defendant’s requested instruction on the mitigating circumstance of intoxication did not constitute error. The instructions given on mitigating circumstances incorporated the substance of the defendant’s request and were adequate to provide clear guidance as required by K.S.A. 1992 Supp. 21-4624(4). However, this same conclusion does not apply to the second and third contentions of the defendant.
The trial court did not give an instruction on sympathy during the guilty/not guilty phase of the trial. Over the objection of the defendant, the trial court decided that such' an instruction was required during the sentencing phase. The court instructed the jury that it must “consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.”
In giving this instruction, the trial court appeared to be concerned that without the instruction, the jury might well have been overwhelmed by sympathy for the victims of a previous crime committed by the defendant. The defendant was charged and convicted of aggravated batteries in 1984, and these prior convictions were the basis of the aggravating circumstances that the jury ultimately found justified imposition of the hard 40 sentence. The basis of those convictions was that the defendant beat a mother and daughter with a baseball bat because the daughter would not submit to his sexual advances. Under its instruction concerning aggravating circumstances, the jury would necessarily consider the defendant’s prior convictions. The emotional testimony of the aggravated battery victims and the emotional testimony of the defendant’s aunt formed the basis for the court’s anti-sympathy instruction.
In the midst of their deliberation on sentence, the jury requested additional guidance from the court on what was meant by the term “mitigating circumstances.” The court, after conferring with counsel, advised the jury that mitigating circumstances “are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.”
The defendant contends that the above definition of mitigating circumstances given by the court connotes sympathy, which the court had previously instructed the jury it was not to consider. The term “mercy” used by the court is defined as “[k]ind and compassionate treatment of an offender ... or other person under one’s power.” The American Heritage Dictionary of the English Language 821 (new coll. ed. 1978). See also Webster’s New Collegiate Dictionary 713 (1980) (“compassion or forbearance shown esp. to an offender or to one subject to one’s power”). Compassion, in turn, is a synonym for sympathy.
The court, in its attempt to benefit the defendant by cautioning the jury not to let sympathy or prejudice cloud its judgment in sentencing the defendant, further advised the jury that it may consider factors which in fairness and mercy may be considered as extenuating and reducing the degree of moral culpability. While the intent of the court in giving both instructions is clear from the record, there is no guarantee that the jury understood the intent of the court in the instructions given.
The defendant contends that the two instructions were confusing because the jury was instructed not to consider sympathy, but the jury was further advised that it may consider mercy. There is a real possibility that the tension between the anti-sympathy instruction and the “fairness and mercy” response to the jury’s question could have been confusing to the jury.
Finally, the defendant argues that the court’s instructions on mitigating and aggravating circumstances created further confusion. The defendant contends that the jury may have concluded that it had to find the existence of mitigating factors by evidence beyond a reasonable doubt.
Instruction No. 4 provided:
“If you find by unanimous vote, beyond a reasonable doubt, that one or more of the aggravating circumstances .... exist, and that the existence of such aggravating circumstance(s) is not outweighed by any mitigating circumstance(s) which is found to exist, your recommendation shall be that Richard Harmon serve a mandatory minimum term of imprisonment of forty (40) years.”
Without the benefit of guidance from PIK instructions, the court tracked the language of the statute. The present PIK instructions separate aggravating and mitigating circumstances and clearly advise the jury that it is only the aggravating circumstances that must be found to exist by evidence beyond a reasonable doubt.
The court’s instructions, however, made no such division and could lead to some confusion concerning the findings with reference to mitigating circumstances. Yet, a careful reading of instructions Nos. 4 and 5 of the court properly require only that the aggravating circumstances be found beyond a reasonable doubt. The reference to aggravating circumstances immediately is preceded by the “unanimous vote, beyond a reasonable doubt” qualifier. The reference to mitigating circumstances, however, says “any mitigating circumstance^) which is found to exist.”
Nevertheless, there is potential for confusion. Perhaps this confusion is somewhat alleviated when all of the instructions are read together. Such a reading makes it more clear that the State has the burden to prove the existence of aggravating circumstances beyond a reasonable doubt. Instruction No. 2 asked the jury to determine whether any aggravating circumstances existed “beyond a reasonable doubt.” Instrúction No. 3 merely listed the mitigating circumstances, and did not specify a burden of proof. Instruction No. 5 required the jury to reduce its finding of aggravating circumstances to writing, but told the jury that it was not required to write down any mitigating circumstances it found. Finally, instruction No. 8 told the jury that the State had the burden to prove beyond a reasonable doubt that there were aggravating circumstances and that they were not outweighed by any mitigating circumstances.
Standing alone, the potentially confusing nature of instructions Nos. 4 and 5 does not require vacation of the sentence. However, the potential for confusion' exists, and, coupled with the confusing nature of the court’s anti-sympathy instruction and “fairness and mercy” response to the jury’s question, we conclude that the defendant’s sentence must be vacated and that this case must be remanded for further sentencing proceedings.
In remanding this case for farther proceedings, we are governed by the provisions of K.S.A. 1992 Supp. 21-4627, which provide for an automatic review by and appeal to the Supreme Court in “[a] judgment of conviction resulting in a mandatory term of imprisonment” of 40 years. K.S.A. 1992 Supp. 21-4627 provides that such a judgment of conviction resulting in a mandatory term of imprisonment “shall be subject to automatic review by an appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure.”
The Code of Criminal Procedure provides that
“[a]ny appellate court may reverse, affirm or modify the judgment or order appealed from, or may order a new trial in the district court. In either case the cause must be remanded to the district court with proper instructions, together with the decision of the appellate court, within the time and in the manner to be prescribed by,rule of the Supreme Court.” K.S.A. 22-3605.
In setting forth the responsibilities of this court with reference to a hard 40 sentence, the law provides that the Supreme Court of Kansas shall consider the question of sentence on appeal as well as any errors asserted in the review on appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby. K.S.A. 1992 Supp. 21-4627(2). K.S.A. 1992 Supp. 21-4627(3) provides:
“With regard to the sentence, the court shall determine:
(a) whether the mandatory term of imprisonment was imposed under the influence of passion, prejudice or other arbitrary factor; and
(b) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.”
Finally, K.S.A. 1992 Supp. 21-4627(4) provides:
“The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal.”
The hard 40 sentencing statute is the only instance wherein the legislature has required that the jury be involved in the sentencing phase of the trial. K.S.A. 1992 Supp. 21-4624(2) provides:
' [U]pon conviction or adjudication of guilt of a defendant of murder in the first degree based upon the finding of premeditated murder, the court upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall he required to serve a mandatory term of imprisonment of 40 years.” (Emphasis added.)
Unless the defendant waives a jury trial, the decision as to whether to impose a mandatory term of imprisonment of 40 years “shall be conducted by the trial judge before the trial jury.” If a member of the trial jury is not able to serve in the sentencing proceeding, “the court shall substitute an alternate juror who has been impaneled for the trial jury.” K.S.A. 1992 Supp. 21-4624(2). The provisions of 21-4624(2) further provide that if there are not enough alternate jurors to replace unavailable trial jurors, the court may summon a special jury of 12 persons to determine whether to impose a mandatory term of imprisonment of 40 years. While the statute expresses a preference that members of the jury who decided guilt or innocence serve as jury members to determine imposition of sentence, the legislature clearly intended that the determination of this issue be made by the jury, unless the defendant waives a jury trial in accordance with K.S.A. 22-3403.
In this case, we have determined that instructions given to the jury under the provisions of 21-4624(4) did not provide clear guidance to the jury in this “separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years.” K.S.A. 1992 Supp. 21-4624(2). Given the clear indication that the legislature contemplated a jury decision in regard to imposition of this type of sentence, we deem it appropriate to remand this case for consideration by a separate jury to make that same determination upon remand. K.S.A. 1992 Supp. 21-4624(2) authorizes the trial judge to use a new jury selected in accordance with 21-4624(2) to determine the action.
In order to effect a “proper and complete disposition of [our] review and [this] appeal,” (K.S.A. 1992 Supp. 21-4627[4]) consistent with the provisions of 21-4624, this case must be remanded for another “separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years.” K.S.A. 1992 Supp. 21-4624(2). On remand, the proceeding is to be conducted in accordance with the provisions of K.S.A. 1992 Supp. 21-4624, K.S.A. 1992 Supp. 21-4625, K.S.A. 1992 Supp. 21-4626, and K.S.A. 1992 Supp. 21-4628 just as if no sentence had ever been imposed in this case. Upon remand, the court should give consideration to our decision of State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993), adopting a hard 40 sentencing instruction for use under K.S.A. 1992 Supp. 21-4625(6).
We note that in some instances it would not be appropriate to remand for such a proceeding. In State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), we vacated a hard 40 sentence imposed after the State failed to comply with the “notice at arraignment” requirement of K.S.A. 1992 Supp. 21-4624(1). We based our decision on the mandatory nature of the notice requirement. K.S.A. 1992 Supp. 21-4624(1) provides that the required notice of intent to request the hard 40 “shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment.” K.S.A. 1992 Supp. 21-4624(1) also provides that if the notice is not provided as required by the statute, the State “may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.”
K.S.A. 1992 Supp. 21-4624(1) clearly provides that notice is a condition precedent to the availability of a hard 40 sentencing proceeding. Because the opportunity to give such notice is forever lost once arraignment has passed, it was not possible that such error be corrected on remand. In Deavers, we remanded the case for resentencing in accordance with 21-4624(1), which would preclude imposition of the hard 40 sentence because notice was not provided.
There may be other instances wherein remand for a special sentencing proceeding to determine whether a defendant shall be required to serve a mandatory term of imprisonment of 40 years would be inappropriate. However, here, because the error relates to jury instructions in the separate sentencing proceeding, such error may be corrected by remanding for another separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years under the provisions of 21-4624(2).
Conviction affirmed, sentence vacated, and case remanded for resentencing. | [
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The opinion of the court was delivered by
McFarland, J.:
Ron and Nancy Wilcox appeal from the district court’s judgment holding that any payments made by the trustee of the Frank Gentry Trust (Trust) which are made for the benefit of Isabell Gentry and not paid directly to Isabell are not subject to garnishment. The Court of Appeals affirmed the judgment appealed from, but reversed, sua sponte, a continuing garnishment order entered by the district court relative to payments made by the trustee directly to Isabell Gentry. The matter is before us on petition for review.
In 1985, Frank Gentry created a revocable Trust. During his lifetime, Frank was the beneficiary of the Trust. Upon Frank’s death certain trust property was to be distributed to named individuals. The residue of the Trust’s assets was to be divided into five equal shares. Four of these shares were to be distributed to the four individuals designated as their recipients. This action concerns the fifth share. The applicable Trust provision in Article III, Section D.5, is -as follows:
“(e) One share shall remain in trust until the death of Isabell Gentry. The trustee, in his sole discretion, may make such distributions of income and principal to her or on her behalf as the trustee deems advisable after giving due consideration to all sources of funds available to her. Upon the death of Isabell Gentry, the trust shall terminate and the balance of the trust and accumulated income shall be distributed to the then surviving beneficiaries in proportion to the beneficial interests they would have been entitled to, under D. 5.(a), (b), (c) and (d) above, had Grantor died on the actual date of Isabell Gentry’s death. In the event Isabell Gentry should predecease the Grantor, this share shall be equally divided between Mary Margaret Gentry and Eric Gently, or pass fully to the survivor.”
The district court and the Court of Appeals characterized the Trust provisions applicable to Isabell Gentry in (e) as being discretionary in nature. This determination is unchallenged herein and we agree we are dealing with a discretionary trust. The Trust contains no spendthrift provision.
Ron and Nancy Wilcox obtained a judgment against Isabell Gentry for fraud in the sale of a residential property. Their judgment was for $40,000 actual damages and $11,667.35 punitive damages. They garnished the Trust to seek satisfaction of their judgment. Frank Gentry, grantor and sole beneficiary during his lifetime, had died previously, thereby activating section 5(e) relative to Isabell.
The district court held that any trustee payments directly to Isabell were subject to garnishment but that trustee payments for Isabel! s benefit were not. The propriety of the district court’s determination relative to payments made for Isabell’s benefit is the only aspect of the judgment from which an appeal was taken.
The Court of Appeals’ affirmance of the district court was based, in part, upon our case of State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 822 P.2d 1033 (1991). Reliance on Jackson is misplaced. Jackson involved an action by SRS, pursuant to K.S.A. 39-719b, to compel the Jackson Trust beneficiary to reimburse SRS for public assistance benefits she had received. The Trust was not a party to the action, and the trustee was not being asked to pay anything to SRS. The issue was whether or not the trust had been an “available resource” to Jackson at the time she was receiving public assistance funds for purposes of determining her eligibility for such SRS benefits. Thus, the spendthrift provisions of the Jackson Trust were irrelevant. The case involved only Jackson’s interest in the trust. We held that the trust was discretionary as to payments of principal but not discretionary as to income. Thus, as Jackson had the right to receive the trust income, such income was an available resource to Jackson in determining her eligibility for public assistance.
In Jackson we cited Restatement (Second) of Trusts § 155(1) (1957) and comment (b), which provide:
“(1) Except as stated in § 156, if by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal.
“Comment b:
“A trust containing such a provision as is stated in this Section is a ‘discretionary trust’ and is to be distinguished from a spendthrift trust, and from a trust for support. In a discretionary trust it is the nature of the beneficiary’s interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary’s interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trastee to pay anything to him because the beneficiary could not compel payment to himself or application for his own benefit.”
Section 155(1) was pertinent to Jackson as we were concerned with the interest of the beneficiary to the trust and her concomitant ability to compel payment to her.
In the case before us, the issue is not whether the trustee can be compelled to pay income or principal. The issue before us is, if the trustee exercises its discretion and makes a payment on behalf of the beneficiary, whether such payment is subject to the creditors’ garnishment.
This makes Restatement (Second) of Trusts § 155(2), rather than (1), the applicable statement, as it provides:
“(2) Unless a valid restraint on alienation has been imposed in accordance with the rales stated in §§ 152 and 153, if the trustee pays to or applies for the beneficiary any part of the income or principal with knowledge of the transfer or after he has been served with process in a proceeding by a creditor to reach it, he is liable to such transferee or creditor.”
As previously stated, there is no valid restraint on alienation (spendthrift provision) involved herein. This section makes no distinction between payments directly to the beneficiary or on the beneficiary’s behalf.
Pertinent comments .to subsection (2) are found therein as follows:
“h. Effect of payment by trustee to beneficiary after assignment. Although in the case of a discretionary trust a transferee or creditor of the beneficiaiy cannot compel the trustee to. pay over any part of the trust property to him, yet if the trustee does pay over any part of the trust property to the beneficiaiy with knowledge that he has transferred his interest or after the trustee has been served with process in a proceeding by a creditor of the beneficiary to reach his interest, the trustee is personally liable to the transferee or creditor for the amount so paid, except so far as a valid provision for forfeiture for alienation or restraint on alienation has been imposed as stated in §§ 150, 152 and 153.
“Illustrations:
“3. The facts are as stated in Illustration 1. [Beneficiary B transfers his interest to E.] If B with knowledge of the transfer to E pays to C any part of the trust property, he is liable to E for the amount so paid.
“4. The facts are as stated in Illustration 2. If B after being served with process in the creditor’s suit pays to C any part of the trust property, he is liable to the creditor for the amount so paid.
“i. Effect of applying property by trustee for beneficiaries after assignment. If the trustee applies for the benefit of the beneficiary income or principal, he is liable to an assignee of the beneficiary’s interest or to a creditor of the beneficiaiy, if he makes such application after he has knowledge of the assignment or after he has been served with process in a proceeding brought by a creditor of the beneficiary to reach the beneficiary’s interest.”
In IIA Scott on Trusts § 155.1, p. 160-61 (4th Ed. 1987), the following pertinent discussion appears:
“Although the trustee need not pay any part of the trust fund to the beneficiary or to his creditors, but may withhold it entirely, but if he does determine to pay part of it to him, he should pay it to the creditors who now stand in his shoes. The English courts, however, have here made a distinction. They have held that the trustee can properly apply the trust fund for the use of the beneficiary even though he is bankrupt or his creditors have brought a proceeding to reach his interest. In In re Smith [, (1928), 1 Ch. 915 919], Romer, J., said:
‘Where there is a trust to apply the whole or such part of a fund as trustees think fit to or for the benefit of A., and A. has assigned his interest under the trust, or become bankrupt, although his assignee or his trustee in bankruptcy stand in no better position than he does and cannot demand that the fund shall be handed to them, yet they are in a position to say to A.: “Any money which the trustees do in the exercise of their discretion pay to you, passes by the assignment or under the bankruptcy.” But they cannot say that in respect of any money which the trustees have not paid to A. or invested in purchasing goods or other things for A., but which they apply for the benefit of A. in such a way that no money or goods ever gets into the hands of A.’
The distinction thus drawn between payment to the beneficiary and applying trust funds for his benefit seems to be arbitrary and without any sound basis in public policy. The result is that the beneficiary is enabled to enjoy the benefit of the trust in spite of his insolvency, as long as the trustee is willing to apply the trust estate for his benefit.”
In Bogert, Trusts and Trustees § 228, pp. 524-32 (Rev. 2d Ed. 1992), distinctions between discretionary and spendthrift trusts are discussed, and the following is stated relative to a creditor’s ability to reach trust funds:
“If the trust is a true ‘discretionary’ trust, the nature of the interest of the beneficiary, rather than any expressed restraint on his power to alienate or the rights of his creditors, determines questions of voluntary or involuntary alienation. The beneficiary cannot secure the aid of a court in compelling the trustee to pay or apply trust income or principal to him since the terms of the trust permit the trustee to withhold payments at his will. Until the trustee elects to make a payment the beneficiary has a mere expectancy. Nor can a creditor compel the trustee to exercise his discretion to make payments. If the beneficiary attempts to transfer his interest, or his creditors seek to take it, before the trustee has made an election to pay or apply, the transferee or creditor has no remedies against the trustee because he stands in the shoes of the beneficiary.
“If, however, the trustee exercises his discretion by making a decision to pay to or apply for the beneficiary, then the beneficiary can force the trustee to confer such a benefit on him, and he can transfer his right and his creditors can take advantage of it, if the trust does not have a spendthrift clause. If the trustee receives notice of an attempted voluntary transfer, or is served with process by a creditor of the beneficiary, before the making of his decision to allocate trust property to the beneficiary, he will be liable to the assignee or creditor if he thereafter uses his discretion and elects to pay to the beneficiary. In such a case his duty is to pay to the assignee or creditor if he decides to pay or apply, unless the discretionary trust instrument contains a spendthrift clause, or a statute gives rights to the creditor as in the case where the surplus of income over that needed for support is made liable to creditors.”
The above-cited treatises are persuasive. We see no valid reason for treating payments to a beneficiary differently from payments made on behalf of the beneficiary as far as creditors are concerned. If the creditor has the right to reach payments made to the beneficiary excluding payments made on behalf of the beneficiary serves only to encourage circumvention of that right. We adopt Restatement (Second) of Trusts § 155(2) and find it determinative of this issue. The- district court and the Court of Appeals erred in holding that only funds paid directly to a discretionary trust beneficiary are subject to garnishment by a creditor.
In their petition for review, Ron and Nancy Wilcox object to the Court of Appeals’ reversal, sua sponte, of the district court’s continuing order of garnishment as to funds paid directly to the beneficiary.
The Wilcoxes did not appeal from this part of the judgment as it was in their favor. No cross-appeal was filed.
K.S.A. 1992 Supp. 60-2103(h) provides:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the appellee shall, within 20 days after the notice of appeal has been served upon such appellee and filed with the clerk of the trial court, give notice of such appellee’s cross-appeal.”
As to its basis for raising an issue sua sponte, the Court of Appeals stated:
“Although not raised as an issue, the parties have brought to our attention the trial court’s order of continuing garnishment in this case. Based on our review of Kansas’ garnishment statutes, we find the trial court had no jurisdiction to enter such an order. We set it aside under this court’s authority to address an issue sua sponte.” 18 Kan. App. 2d at 363.
The district court had both personal and subject matter jurisdiction herein.
The' order of continuing garnishment entered herein as to funds paid directly to the beneficiary was in no way an inherent part of the sole issue on which the appeal was taken or necessary to the determination of that issue. Even if such had been the sit uation, the parties should have been afforded the opportunity to brief the sua sponte issue.
If judicial review was to be had on this aspect of the judgment, it should have been the subject of a cross-appeal by a party aggrieved thereby. This did not occur. We conclude the Court of Appeals lacked jurisdiction to raise and determine this matter sua sponte. See Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985).
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded for further proceedings. | [
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The opinion was delivered by
Abbott, J.:
This is a mandamus action requesting that the Board of Wyandotte County Commissioners (Board) be ordered to pay attorney fees to Donald C. Long for his representation of the Wyandotte County Sheriff, Owen Sully. The trial court dismissed the mandamus action, and the Sheriff appeals. The appeal was transferred to this court pursuant to K.S.A. 20-3017.
This action is directly related to a federal court case dating back to the mid-1980s involving the adequacy of the Wyandotte County jail. The trial judge and counsel for both parties were obviously familiar with the federal case and the dispute leading to this mandamus action. We are not.
The record before us consists of 49 pages of pleadings, trial briefs, and the trial court decision. Included in those 49 pages is a one-page affidavit of Donald C. Long that states the Sheriff hired him because of an apparent conflict of interest between the Board and the Sheriff and that the Sheriff had approved his bills and the Board refused to pay them. Other than mentioning pleadings filed in the federal court, the affidavit gives no dates concerning the employment and when and what work was performed.
Nine of the 49 pages deal with Long entering his appearance in the federal court case on behalf of Sheriff Sully and the 1989 substitution of newly elected county officials for former county officials. Nothing of substance concerning the federal court case is in the record. Sully did file three orders of the federal court with this court the week before oral argument and requested that they be added to the appendix to his brief. The orders were not before the trial court and are not part of the record on appeal.
The briefs are replete with statements of fact that are not keyed to the record (there is no factual record to key to) and that part of the brief which is keyed to the record refers to the pleadings, trial briefs, and trial court opinion.
With that background, we move to the procedural history and the parties’ representation of the facts.
In the mid-1980s, the Sheriff of Wyandotte County and the Board of Wyandotte County Commissioners were named as defendants in the United States District Court for the District of Kansas in case No. 85-3049-S (Woodson v. The Board of County Commissioners of Wyandotte County). The Woodson case concerned allegations that the Wyandotte County jail was being operated in violation of the prisoners’ constitutional rights.
The Board employed outside counsel to represent both the Sheriff and the Board in that action. In 1987, a consent decree was entered whereby, among other things, the Board agreed to build a new jail and the jail was to be operated in compliance with national standards. The consent decree apparently provided that after the new jail was completed and operated pursuant to the consent decree for one year, the Woodson case would be dismissed. The new jail was completed and apparently problems occurred which were of sufficient magnitude that no effort was made to dismiss the Woodson case. The Woodson case appears to have remained dormant until sometime in 1992.
In 1991 or early 1992, the Board hired a consultant and, according to the Sheriff’s brief, the following occurred: A report was received by the Board and furnished to the Sheriff for his response in February 1992. The Sheriff verbally objected to the recommendations in the report. The Board had the consultant meet with the Sheriff to “discuss the Sheriff’s concerns.” It does not appear the Sheriff thereafter met with the Board.
At that point, the Sheriff wrote the following letter to the County Counselor of Wyandotte County:
“In light of yesterday’s report by the consultants hired by the commissioners I am requesting that Don Long be appointed special counsel to me. I no longer feel that my interests in Woodson v. Quinn can best be represented by current counsel.
“The irresponsible accusations made by the consultants have placed the Sheriff and the County in a precarious position in this case. I feel that the plaintiffs are going to land all of us back in court and a master appointed that will dictate to us all.
“I have every intention of defending myself against this scurrilous attack against my integrity.”
The Board did not formally respond to the letter and the Sheriff hired Long as his attorney. On March 3, 1992, the Board adopted by resolution an “Action Plan” implementing the consultant’s rec ommended action. The Sheriff then had Long file for an injunction in the federal court case. The Sheriff and the Board then negotiated the various issues and the Sheriff agreed to withdraw the motion for an injunction.
The Board refused to pay Long’s fees and on May 21, 1992, Long filed a mandamus action requesting the trial court to order the Board to pay the legal bill as approved by the Sheriff. The Board answered alleging it had and has no contract with Long and had not authorized the Sheriff to enter into an agreement with Long. The Board also filed a motion to dismiss the mandamus action.
The Sheriff then filed a motion to intervene, stating:
“COMES NOW, Owen L. Sully, the acting Sheriff of Wyandotte County, Kansas, and in support of his Motion for leave to intervene in the above captioned matter states:
“X. That Movant is the elected and qualified Sheriff of Wyandotte County, Kansas, and is engaged in the functions as directed, defined and permitted by law. That his mailing address is 710 North 7th Street, Kansas City, Kansas 66101.
“2. Movant seeks to intervene in the captioned matter pursuant to K.S.A. 60-224(b).
“3. Movant believes that he is entitled to intervene in this proceeding by virtue of K.S.A. 60-224(b) in Plaintiff’s action and Movant’s claim and interest in this matter such that if he is not allowed to intervene that the adjudication of the rights of the Plaintiff may be prejudice[d].
"4. Movant is unable to state with particularity and definitiveness what, if any, affirmative relief he will seek or is entitled to seek herein, but wishes to be permitted to intervene so that he may, if necessary, request such relief as he may be, by law entitled to receive.
“WPIEREFORE, Owen L. Sully moves the Court for an order granting him leave to intervene in this proceeding as a party in interest.”
Although the record does not clearly indicate, it is obvious the Sheriff was permitted to intervene.
The trial court then considered the Board’s motion to dismiss and held that “no specific duty imposed by law exists for defendants to perform, thus plaintiff’s request for relief is not controlled by mandamus.” The trial court’s decision was based on a finding that the Board never approved or authorized any employment arrangement between the Sheriff and Long and the trial court’s conclusion that there is no statutory authority permitting the Sheriff to hire an attorney at county expense. K.S.A. 19-212; K.S.A. 19-229.
The Sheriff then filed a motion for rehearing and apparently for the first time contended he had inadvertently failed to include in the petition to intervene that attorney fees were authorized under K.S.A. 75-6108(a) and (d).
The trial court denied the motion for rehearing, reasoning that (1) the Board had already furnished the Sheriff an attorney in the federal court case and (2) the Sheriff’s petition alleges a dispute between the Sheriff and the Board — not a claim by a third party as contemplated by K.S.A. 75-6108. The trial court also said:
“Note is taken of the language in K.S.A. 75-6108(c)(3) in regard to a governmental entity’s right to refuse a defense if a conflict of interest between the governmental entity and employee exists as determined by the governmental entity.
“Given the circumstances herein existing, there is no statutory authority permitting the Sheriff to hire an attorney at county expense and an action for a mandamus as defined by K.S.A. 60-801 is not proper procedure.”
The Sheriff appealed. Long did not appeal. The Board does not question the right of the Sheriff to enforce a claim of a third person against the Board by mandamus.
The Sheriff recognizes the general law concerning mandamus actions. Mandamus actions are authorized by K.S.A. 60-801.
K.S.A. 60-801 provides that “[mjandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
“This court has consistently recognized that mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that another adequate remedy at law exists. [Citations omitted.]
“. . . Issuance of the writ is discretionary with the court and a writ should not issue unless a respondent’s legal duty is clear. [Citation omitted.] Mandamus is not available to require performance of an act that involves the exercise of discretion by the public official. This court has stated that ‘mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks.’ [Citation omitted.] The only acts of public officials that the courts can control by mandamus are those strictly ministerial, meaning the public officer or agent is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety- or impropriety of the act to be performed. [Citation omitted.]” State ex rel. Stephan v. Kansas Racing Commn, 246 Kan. 708, 716-17, 792 P.2d 971 (1990).
The Sheriff argues this case falls into an exception that, if a mandamus action seeks an interpretation of the law to guide public officials in their administration of public business, courts will consider the mandamus action notwithstanding that there also exists an adequate remedy at law, citing State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708.
That statement, while correct, is not complete. Courts will not accept jurisdiction of a mandamus action simply to give guidance to a public official or to settle disputes between public officials. It is only where an issue of law affects public officials, presents an issue of great public importance and significant State interest, and requires a speedy adjudication that mandamus is an appropriate and proper means to decide the issue.
Here, the Sheriff and his attorney clearly have an adequate remedy at law to decide the issue of whether the Board is liable for Donald C. Long’s attorney fees and expenses incurred in representing the Sheriff and, if so, in what amount. Thus, the question is whether this is an issue of law affecting public officials and of great public importance and significant State interest so as to justify a mandamus action even though an adequate remedy at law exists.
Here, we are dealing with a unique set of facts in a case that is fact driven. The Sheriff’s argument is that the consent decree of 1987 was pending and he is a named defendant therein along with the Board and that the Board had hired an independent counsel to represent the joint interests of the Sheriff and the Board. From there, his argument is that K.S.A. 75-6108(a) requires that he be furnished a defense. He requested alternate counsel when he believed a conflict of interest had developed between himself and the Board and, when the Board failed or refused to hire separate counsel, he hired his own, allegedly pursuant to K.S.A. 75-6108(c). He then argues K.S.A. 75-6108(d) provides that an employee who is not provided a defense may recover from the governmental entity reasonable attorney fees, costs, and expenses and that the employee may petition a court of competent jurisdiction to compel the governmental entity or the governing body or an employee thereof to perform the duties imposed in that section. From that, the Sheriff argues this manr damus action is “within the Court’s power to direct payment of the approved bills since this action was strictly a nondiscretionary duty.”
The parties have settled their differences concerning the dispute that caused the conflict. The dispute as we see it has now transformed itself into a question of whether attorney fees are owed and, if so, the amount due and owing. That question does not have significant State interest and is not of great public interest and, to some extent, involves disputed questions of fact. For instance, the Board had employed counsel to represent the Sheriff. At some point, a conflict arose between the Sheriff and the Board. Whether that dispute required separate counsel in the federal court and, if so, at what point is a fact question. The question of reasonableness of attorney fees is also a factual issue. Assuming the Sheriff, at some point, was entitled to employ counsel under K.S.A. 75-6108(d), he was not given a blank check; thus, the fact the Sheriff approved the attorney fee bills does not bind the Board. If liable, the Board’s responsibility is to pay “reasonable attorney fees, costs and expenses as are necessarily incurred in defending the action or proceeding.” This would not include battles over “turf” that do not have a direct relationship to defending the action against the public employee. We- also note the mandamus action filed by Long requests $23,088.25 and the mandamus petition attached to the Sheriff’s motion to intervene requests $39,399.75. Thus, considerable factual issues exist, and there can be no clear duty to pay the bill.
The trial court did not err in dismissing the mandamus action. Having so held, the Sheriff’s other, arguments are moot.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Tonio Hernandez Rodriguez, following his plea of guilty to aggravated robbery (K.S.A. 21-3427). Rodriguez contends that he was denied a speedy trial and that the trial court abused its discretion in sentencing him and in failing to modify his sentence.
Rodriguez was charged in Finney County, Kansas, with six felonies arising out of a July 11, 1990, incident involving the victim, H.D. The offenses charged were aggravated burglary, aggravated robbery, aggravated battery, aggravated assault, theft, and unlawful possession of a firearm.
Armed with a .38 caliber handgun, Rodriguez entered the residence of H.D., threatened her, and took money and other items belonging to her and her roommate. Rodriguez then forced her to accompany him to Colorado in her vehicle. On the way, he sexually assaulted her in Kearny County, Kansas, and in Prowers County, Colorado. Rodriguez was charged and convicted in Colorado of first-degree sexual assault, and on January 3, 1991, he was sentenced to 48 years in prison. He was placed in the custody of the Colorado Department of Corrections.
The parties agree to the following sequence of events:
January 1991 Colorado receives notification of detainers on Rodriguez from both Kansas and Texas.
January 22, 1991 Rodriguez signs requests for disposition of the Texas and Kansas charges.
February 5, 1991 Colorado signs offer to deliver temporary custody to Kansas.
February 7, 1991 Colorado’s offer to deliver temporary custody mailed.
February 11, 1991 Finney County attorney receives Rodriguez’ request for disposition.
February 13, 1991 Rodriguez’ request for disposition filed in the Finney County District Court.
March 11, 1991 Texas completes extradition process.
March 22, 1991 Colorado receives notice that Rodriguez is scheduled for a hearing in Finney County on May 28, 1991.
March 25, 1991 Colorado writes, letter notifying Finney County that Texas has completed process for temporary custody, that Rodriguez will be transported to Texas on April 16, 1991, and that Rodriguez will be unavailable for extradition to Kansas until his return from Texas. The standard procedure for Colorado was that where two states had outstanding warrants on an inmate, the state which completed the paperwork first would receive temporary custody first.
April 16, 1991 Rodriguez arrives in Texas.
August 19, 1991 Rodriguez disposes of Texas charges.
October 16, 1991 Rodriguez returns to Colorado.
November 8, 1991 Rodriguez arrives in Kansas.
November 19, 1991 Rodriguez requests 7-day continuance; granted.
December 6, 1991 Rodriguez files motion to dismiss for speedy trial violation.
December 10, 1991 Hearing on motion to dismiss held; continued for failure of defense to give adequate notice. The trial court charged 10 days to defendant from December 6, 1991.
December 18, 1991 Motion to dismiss denied by district magistrate judge.
January 15, 1992 Motion to dismiss denied by district court judge. Rodriguez pleads guilty to aggravated robbery.
January 22, 1992 Scheduled trial date.
Rodriguez was sentenced to 15 years to life, and that sentence was tripled pursuant to the Habitual Criminal Act for a controlling term of45 years to life. The sentence was imposed consecutive to sentences in Colorado and Texas. K.S.A. 1992 Supp. 21-4618 was invoked, making the minimum sentence mandatory because the crime was committed with the use of a firearm.
Rodriguez’ motion to modify his sentence was denied. This appeal followed.
There are separate statutory procedures for prisoners incarcerated in Kansas with charges pending against them in a Kansas court (Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq.., which we will refer to as the “Act”) and for prisoners held in one state who have criminal charges pending against them in another state (Agreement on Detainers, K.S.A. 22-4401 et seq.,which we will refer to as the “Agreement”). Rodriguez is subject to the Agreement.
The Agreement provides a uniform method by which persons imprisoned in one state (sending state) can seek disposition of charges pending in another state (receiving state) when both states are parties to the Agreement. These cooperative procedures are designed to “encourage the expeditious and orderly disposition of such charges” because outstanding detainers “produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.” K.S.A. 22-4401, Art. I. This is because there are limited resources to provide programs, treatment, and other forms of rehabilitation. A prisoner is usually barred from participation in such programs until detainers are disposed of so that resources will not be committed to a prisoner who may be sent to another state during the program.
Article 111(a) of the Agreement provides that whenever a de-tainer from one state is lodged against a defendant who is imprisoned in a penal or correctional institution of another state, the defendant
“shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his' counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.”
The prisoner must provide a written notice and request for final disposition to the official who has custody of the prisoner, and that official is required to promptly forward the inmate’s request and the certificate described above to the appropriate prosecuting official and court having jurisdiction of the outstanding charges. K.S.A. 22-4401, Art. 111(b). When the receiving state makes a request for temporary custody, there is a mandatory delay of 30 days before the sending state may grant the request. K.S.A. 22-4401, Art. IV(a). The 180-day deadline set forth in Article 111(a) is tolled “whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” K.S.A. 22-4401, Art. VI(a).
Rodriguez contends that more than 180 days elapsed from the date he made his request for disposition of the offenses in the case at bar to the date he was scheduled for trial. Rodriguez was in the custody of the Colorado Department of Corrections when detainers from Finney County, Kansas, and from Texas were served on him. He requested disposition of both the Kansas and the Texas detainers the same day. Although Rodriguez agrees that a portion of the time was tolled by virtue of his unavailability when he was in Texas disposing of charges there, he maintains that the 180-day deadline expired before his scheduled trial date of January 22, 1992.
The State urges this court to find that Rodriguez waived the right to a speedy trial under the Agreement when he pleaded guilty. The State points to State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984): “This state has held in a number of cases that a defendant waives his right to a speedy trial by a plea of guilty in the district court. Witt v. State, 197 Kan. 363, 416 P.2d 717 (1966); Cooper v. State, 196 Kan. 421, 411 P.2d 652 (1966); Moore v. Hand, 187 Kan. 260, 356 P.2d 809 (1960).”
As we view it, the Act contains language that requires a different result on the question of waiver than does the Agreement.
The Act provides that a prisoner must be tried within 180 days after receipt of the request for final disposition or the court loses “jurisdiction” and the charging document shall be of no “further force or effect.” The Agreement, on the other hand, does not contain language maldng the failure to commence trial within 180 days after the receipt of the request for final disposition jurisdictional.
In State v. Goetz, 187 Kan. 117, 353 P.2d 816 (1960), a case presenting a procedural situation similar to the case at bar, this court stated the general rule that the right to a speedy trial is a personal right which may be waived, and it is waived if an accused fails to assert the right. That case, however, involved the Act and not the Agreement, and this court ordered the defendant’s conviction (based on a plea of guilty) set aside and the charge dismissed with prejudice. Goetz was based on G.S. 1949, 62-2903 (1959 Supp.), which is identical in pertinent part to K.S.A. 22-4303:
“If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information" or complaint be of any further force or effect, and the court shall dismiss it with prejudice.”
The Goetz court stated that the legislature had spoken in clear and concise terms, requiring the court to hold there was no jurisdiction.
Four months later and reported in the same volume of the Kansas Reports as Goetz is Moore v. Hand, 187 Kan. 260. In Moore, the defendant was not brought to trial within the statutory and constitutional time restraints. This court stated what is still the general rule:
“Notwithstanding the constitutional guaranty of a speedy trial, implemented by legislation such as G.S. 1949, 62-1432, ... it is universally held that the right is a personal right which an accused may waive, and that he is not entitled to a discharge for delay occasioned by his own act, application or agreement. [Citations omitted.]
“In the case of In re Mote, 98 Kan. 804, 160 Pac. 223, although not factually in point, it was held:
‘The constitutional guaranties in section 10 of the bill of rights, which insure to every person accused of crime a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, etc., are personal privileges which the accused may waive, and when they are freely waived by a person charged with crime, by a plea of guilty in a district court of general jurisdiction, it is too late thereafter to challenge the constitutionality of the statute conferring jurisdiction upon the court which imposed judgment upon him.’ (syl. 1.)
“At page 343 of the annotation in 57 A.L.R. 2d, . . . the rule, supported by a number of cases from other jurisdictions, is stated thusly:
‘Defendant’s plea of guilty made without raising the question of the denial of a speedy trial constitutes a valid and binding waiver of the right thereto.’
“The facts and questions before us are not to be confused with those in the recent case of State v. Goetz, 187 Kan. 117, 353 P.2d 816, which dealt with the provisions of G.S. 1959 Supp., 62-2901, 2902 and 2903.” 187 Kan. at 262-63.
The Moore court made clear that the Act, in G.S. 1949, 62-2903 (1959 Supp.) (now K.S.A. 22-4303), required a different result than that reached in other cases where a defendant pleaded guilty after a speedy trial violation.
In Mohler v. State, 84 Md. App. 431, 579 A.2d 1208 (1990), the defendant raised the speedy trial issue before pleading guilty. The court, although noting that the Maryland versions of the Agreement and the Act had identical purposes and rationales, distinguished the Act from the Agreement because the Agreement contained no language similar to the Act depriving a court of jurisdiction if the speedy trial right under the Agreement is violated. The court interpreted the Agreement “based on prior interpretations of that agreement by other state and federal courts rather than on the basis of [its] interpretation of the Intrastate Detainer Act.” 84 Md. App. at 437. The Maryland court found that the statutory time limits under the Agreement are not jurisdictional; rather, the Agreement is only a set of procedural rules. The court held that the issue was properly before it for review because the defendant was asserting a jurisdictional defense. However, the defendant’s argument was held meritless because he waived the alleged violation of the Agreement by pleading guilty. Because the defendant’s guilty plea waived all nonjurisdictional errors and because violation of the Agreement is a nonjurisdictional error, the defendant’s claimed violation of the Agreement could not succeed. 84 Md. App. at 437-39.
In State v. Carter, 151 Ariz. 532, 729 P.2d 336 (1986), the defendant’s motion for discharge on speedy trial grounds under the Agreement was denied. The court noted the Arizona rule that a defendant waives all nonjurisdictional defects by pleading guilty, even when the defendant raises a speedy trial issue before pleading guilty. 151 Ariz. at 533. The court also noted that the Agreement is governed by federal law and that under both federal and Arizona law “[b]y entering into a guilty plea, a defendant waives his right to claim pre-plea constitutional violations.” 151 Ariz. at 533. The court stated:
“The [Agreement] is designed to protect prisoners from unfair detainers, not to provide prisoners with a means to escape prosecution. [Citation omitted.] ...
“The [Agreement] speedy trial limits serve the same purpose as state and federal speedy trial requirements. If the state fails to comply with the [Agreement] time limits in bringing the prisoner to trial, the subject indictment will be dismissed. However, these time limitations are for the benefit of the defendant and can be waived. [Citations omitted.] If speedy trial limitations can be waived, obviously they are not jurisdictional in the sense that their violation deprives a court of the power to act against the defendant.
“Considering the legislative history and purpose of the [Agreement], we find that determination of whether the state has complied with the time limits in which a prisoner must be brought to trial under Article 111 or Article IV is not a jurisdictional question. Therefore, it can be, as it has been in this case, waived by a subsequent plea of guilty.” 151 Ariz. at 533-34.
We conclude that by pleading guilty Rodriguez waived the speedy trial issue.
We do comment that Rodriguez argues in his brief that he should not be subject to waiver because the trial court told him jurisdictional issues are never waived by pleading guilty. The remedy for such a violation is to set the plea aside as not voluntarily and intelligently made. Rodriguez does not and did not request that his plea be set aside. If indeed the trial judge misinformed Rodriguez of the consequences of his plea, Rodriguez can have the plea set aside as not voluntarily and intelligently made. This, of course, would expose him to tidal on the other five felonies dismissed under his plea bargain. Had Rodriguez been properly informed as to a plea waiving the right to a speedy trial, he could have elected to plead guilty or he could have rejected the plea agreement and gone to trial on the six felony charges. Although he makes no claim his plea was not freely and voluntarily made, if he successfully does so and the plea is set aside he will be in exactly the same position he was in when the trial judge gave him the allegedly erroneous advice, including the right to challenge the speedy trial issue following his guilty plea.
Rodriguez next ai'gues the trial judge abused his discretion in sentencing him and in refusing to modify his sentence.
This court has repeatedly addressed the sentencing judge’s scope of discretion in sentencing:
“It is the sentencing judge alone who determines the appropriate sentence or other disposition of the cas.e. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. McDonald, 250 Kan. 73, Syl. ¶ 4, 824 P.2d 941 (1992).
See State v. Richard, 252 Kan. 872, 880, 850 P.2d 844 (1993).
In State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989), this court stated:
“One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
When a sentence greater than the minimum is imposed, “it is better practice for the trial court to make, as part of the récord, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the sentencing court has abused its discretion.” State v. Buckner, 223 Kan. 138, Syl. ¶ 9, 574 P.2d 918 (1977). See Richard, 252 Kan. at 881; McDonald, 250 Kan. 73, Syl. ¶ 6;State v. Harrold, 239 Kan. 645, Syl. ¶ 3, 722 P.2d 563 (1986).
Two statutes specifically address the factors which should be considered by a sentencing judge in order to make sentences individualized. K.S.A. 21-4601 requires that the statutes on sentencing be
“liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum tei-m within the limits provided by law.”
Further, K.S.A. 21-4606 sets forth statutory factors which must be considered in announcing sentence:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
First, Rodriguez suggests that the sentencing judge abused his discretion in ordering his sentence to be consecutive to his Texas and Colorado sentences, especially after sentencing Rodriguez to the maximum term of 15 years to life and then tripling it under the Habitual Criminal Act. Rodriguez notes in support of this argument only that he will most likely not be released from incarceration before his death. However, “[t]he fact that the minimum sentence imposed by a trial court exceeds the life expectancy of the defendant has never been grounds, per se, for a finding that the sentence is oppressive or constitutes an abuse of discretion.” State v. Nunn, 247 Kan. 576, 580, 802 F.2d 547 (1990).
Rodriguez also contends that the sentencing judge failed to address his individual circumstances as required by K.S.A. 21-4601, although he admits that the sentencing judge enumerated the factors set forth in K.S.A. 21-4606. “The criteria set forth in K.S.A. 21-4606 may be considered as being indicative of the matters intended to be considered under K.S.A. 21-4601.” State v. Fisher, 249 Kan. 649, 652, 822 P.2d 602 (1991). The sentencing judge considered the criteria set forth in K.S.A. 21-4606 in great detail, and he also considered both the individual characteristics of the defendant and the needs of society. He stated:
“All the Court can do — the Court cannot look into the future and say without a doubt what will happen in tire future with -an individual. And in any endeavor involving human beings the only thing a person has to look at to predict what the future will be is the past. And if the past shows time and time and time and time again violations of serious, serious criminal statutes, then tire only thing the Court can do is assume that in the future that that will be the case . . . .”
The sentence imposed was based on the individual characteristics of Rodriguez, and it was in the interest of the protection of society: “Mr. Rodriguez, there is a need to separate you from society, and the Court is giving you these maximum sentences to do so.”
Rodriguez also points out that three of his prior convictions noted by the trial court had actually been dismissed. The State concedes that the sentencing judge misstated Rodriguez’ prior criminal history. The trial judge, in sentencing Rodriguez, stated:
“The Court also has to look at the criminal — prior criminal record of the defendant, and the Court finds from looking at that that starting in 1968 with a juvenile record, the defendant has convictions for burglary, shoplifting, and worthless checks.
“We then go into the adult record where the defendant has a conviction record of murder without malice; theft; kidnapping; oral copulation; rape; two escapes I think in two different states, I’m -not certain; second degree robbery; burglary of a habitat twice; sexual assault; and then another conviction for a crime that’s termed sexual assault in the first degree.”
Of the offenses noted by the trial judge, three had been dismissed. While the defendant was on parole in Texas in 1990, he was charged with three offenses: two charges for burglary of habitat and one for sexual assault. He pleaded guilty to one burglary of habitat charge and was sentenced to 30 years. The other burglary of habitat charge and the sexual assault charge were dismissed. In Colorado, he received 48 years for sexual assault, and an escape charge was dismissed.
The defendant’s record speaks for itself. As a juvenile he committed burglary and shoplifting. Following a truancy adjudication, he was sent to reform school and released. He wrote worthless checks and was returned to reform school. He was released and later returned for parole violation. He escaped in September 1973 and in December 1973 killed a man outside a bar, using a firearm. He was released from prison in 1976 and four months later was sentenced to two years for automobile theft. He was released in January 1978.
Three months later he was convicted in California of kidnapping, rape, and oral copulation. He also was convicted of escape. He was discharged in September 1981. He was next convicted of second-degree robbery (plea bargained from aggravated robbery) in Texas. He served seven years and was released in December 1989.
Within months he was charged in Texas with sexual assault and two counts of burglary of a habitat. He then fled to Kansas, and within 24 hours of his arrival in Garden City, while armed with a handgun, he broke into a home, kidnapped a young female, took money and property belonging to her and her roommate, stole her car, and forced her to accompany him to Colorado. He sexually assaulted her in both Kansas and Colorado.
We have no hesitancy in saying that while the trial judge may not have been 100% correct in summarizing the defendant’s record, the sentence imposed is justified by the defendant’s extensive record and his inability to refrain from criminal activity for any length of time.
Rodriguez has failed to establish that the sentence imposed was the result of an abuse of discretion. The only basis Rodriguez sets forth for his contention that the court abused its discretion in failing to modify his sentence is the abuse alleged as to the original sentencing. Because there was no abuse of discretion in the initial sentencing, Rodriguez’ assertion of abuse at the modification stage must fail as well.
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The opinion of the court was delivered by
ABBOTT, J.:
Anthony D. Chiles filed a petition for writ of mandamus and quo warranto, naming the State of Kansas the respondent in this action. The appellate defender was appointed to represent Chiles. The case involves the limited retroactivity provision (K.S.A. 1993 Supp. 21-4724[b][l]) of the new Kansas Sentencing Guidelines Act. Chiles does not fall within the limited retroactivity provision of the new law and, therefore, seeks an order from this court requiring the State to apply the retroactivity provision to him. If the provision is applied to Chiles, he may be eligible to be released from prison.
In 1978, Chiles was convicted of aggravated robbery, K.S.A. 21-3427, unlawful possession of a firearm, K.S.A. 21-4204, and aggravated battery, K.S.A. 21-3414. He was sentenced to 30 years to life for aggravated robbery, 1 to 10 years for unlawful possession of a firearm, and 10 to 40 years for aggravated battery. The sentences were to run concurrently for a controlling term of 30 years to life. At the time of sentencing, Chiles had one prior conviction for aggravated robbery, a person felony. Chiles is African-American. He makes one argument that applies to African-Americans and other minorities and separate arguments that apply to all prisoners.
K.S.A. 1993 Supp. 21-4724(b)(l) provides in relevant part:
“Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the nondrug grid or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of section 5 of chapter 239 of the 1992 Session Laws of Kansas and amendments thereto, if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.”
Chiles does not fall within this provision and is therefore hot eligible to have his controlling sentence modified under the new Act because the severity level of the crime of aggravated robbery places the sentence for that crime in a presumptive imprisonment grid block. Under the Kansas Sentencing Guidelines Act, aggravated robbery is a severity level 3, person felony (K.S.A. 1993 Supp. 21-3427), aggravated battery is a severity level 4 to severity level 8, person felony depending upon the specific facts of the case (K.S.A. 1993 Supp. 21-3414), and unlawful possession of a firearm as in Chiles’ case is a severity level 8, nonperson felony (K.S.A. 1993 Supp. 21-4204[d]).
Also under the Act, a person with one prior felony conviction at the time of sentencing has a criminal history category of “D.” (K.S.A. 1993 Supp. 21-4709). The sentencing grid for nondrug offenses establishes a sentence of 78 months in a typical case for a defendant who has been convicted of a severity level 3 offense and who has a criminal history record of “D,” i.e., one prior person felony. (K.S.A. 1993 Supp. 21-4704).
According to Chiles, and the State does not dispute it, a term of imprisonment of 78 months under the Kansas Sentencing Guidelines Act would have resulted in his release from prison in 1984. As Chiles points out, he stands to gain much from a retroactive application of the sentencing guidelines to him.
Chiles contends that his exclusion from the retroactivity provision- of the Act is the result of an arbitrary classification which bears no relationship .to the purpose of the retroactivity legislation and thus violates the Equal Protection Clause of the 14th Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights.
“The various levels of scrutiny employed in determining whether a statutory scheme violates equal protection guarantees recently were reviewed by the court in Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774-75, 830 P.2d 41 (1992):
‘As quoted in State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978), the United States Supreme Court has described the concept of “equal protection” as one which “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). Whether or not the legislation passes constitutional muster depends on the relationship borne by the challenged classification to the objective sought by its creation. . . .
‘The examination of the relationship between the classification and the objective has become quite formalized. The United States Supreme Court articulates and applies three degrees of scrutiny when examining the relationship. The various levels of scrutiny were reviewed by this court in Farley v. Engelken, 241 Kan. 663, 669-70, 740 P.2d 1058 (1987).
‘The least strict scrutiny is referred to as the “rational basis” test. Relevance is the only relationship required between the classification and the objective. In McGowan v. Maryland, 366 U.S. 420, 425, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), it was explained that “[t]he constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” Insofar as the objective is concerned, “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” 366 U.S. at 426. Thus, it appears that the legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective. As noted by Justice Marshall in his dissent in Lyng v. Automobile Workers, 485 U.S. 360, 375, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988):
‘ “The Court fails to note, however, that this standard of review, although deferential, “ ‘is not a toothless one.’ ” Mathews v. De Castro, 429 U.S. 181, 185 (1976), quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976). The rational-basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals. In an alternative formulation, the Court has explained that these limitations amount to a prescription that “ ‘all persons similarly situated should be treated alike.’ ”
‘The intermediate level of scrutiny is termed “heightened scrutiny.” Farley v. Engelken, 241 Kan. at 669. "It requires the statutory classification to substantially further a legitimate legislative purpose.” 241 Kan. at 669. Another, perhaps stronger, statement of the heightened scrutiny test is that the classification “must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976).
‘The highest level of scrutiny requires that the defendant demonstrate “that the classification is necessary to serve a compelling state interest.” Farley v. Engelken, 241 Kan. at 670. This “strict scrutiny” test has been applied by the United States Supreme Court in cases involving classifications such as race and fundamental rights guaranteed by the federal Constitution.’ ” Thompson v. KFB Ins. Co., 252 Kan. 1010, 1016-17, 850 P.2d 773 (1993).
Chiles first argues that the legislative history of the Sentencing Guidelines Act clearly shows that the purpose of legislating re-troactivity is to remedy the effects of past racial and geographical discrimination in sentencing and that a strict scrutiny test is required. Chiles fails, however, to cite any portion of the legislation which would suppoi't his conclusion regarding the purpose of the limited retroactivity provision. The legislative history he recounts does not clearly indicate that the only purpose of retroactivity is the elimination of past racial and geographical discrimination in sentencing.
Chiles notes he is an African-American. He claims, without supporting evidence or explanation of any kind, that he, specifically, was discriminated against when sentenced under the prior sentencing system for his 1978 convictions. He claims it is unconstitutional to exclude him, a member of a racial minority and suspect class, from the benefits of retroactive application of the sentencing guidelines when the guidelines were legislated to correct the racial disparity he and others have suffered. He argues that a strict scrutiny analysis is required because this is a classification involving race and that the State must show both a compelling governmental interest and that the classification is truly necessary to withstand such an analysis.
Chiles then claims that, in light of the purpose of the retroactive application of the new sentencing system, there is no compelling State interest for classifying prisoners according to the status of their crime for purposes of determining who will receive the benefit of retroactivity and who will not. Chiles contends that whether a crime is classified as “violent” or “nonviolent” or as “person” or “nonperson,” retroactivity should be applied to all prisoners who were sentenced for felony criminal convictions prior to July 1, 1993, in order to satisfy the legislative purpose of eliminating the effects of past discrimination. He argues that to exclude him from the benefits of retroactivity because of the status of his crimes results in an arbitrary and discriminatory classification bearing no relationship to the purpose of retroactivity, i. e., the elimination of the effects of past discrimination. He claims the failure to allow him the benefits of retroactivity intentionally discriminates against him a second time.
The State contends the purpose of the Kansas Sentencing Guidelines Act is broader than that claimed by Chiles. It argues that the overriding purpose in establishing the Kansas Sentencing Commission was to reduce overcrowding of prisons. The State claims the new Kansas sentencing law, which is a product of the Commission’s activities, reflects the Commission’s assumption that incarceration should be reserved for serious offenders and that the primary purposes of imprisonment under the sentencing guidelines are incapacitation and punishment.
Relying on the goals the Kansas Sentencing Commission set for itself, the State further argues that the Act has multiple pur poses, not the single purpose claimed by Chiles. According to the State, those purposes are: (1) to promote public safety by incarcerating violent offenders; (2) to preserve corrections resources by imposing shorter sentences or nonimprisonment sanctions on less dangerous offenders; (3) to reduce sentence disparity for similar crimes by eliminating biases resulting from the use of socioeconomic factors in sentencing; (4) to “standardize” and establish sentences that are proportional to the seriousness of the crime and injury to the victim; (5) to promote “truth in sentencing” by establishing determinate terms of incarceration and post-release supervision; (6) to collect information to assist correctional authorities in population management and programming needs; and (7) to provide lawmakers with the necessary information to malee intelligent decisions regarding correctional system resources. Presumably, because the Act has multiple purposes, the retroactivity provision of the Act also has multiple purposes.
We find nothing in the legislative history set out by the petitioner which would dictate that the sole purpose of the retro-activity provision of the Act is to remedy the effects of past racial and geographical discrimination in sentencing. The petitioner has not presented evidence of any kind that the criteria for determining who will receive the benefits of retroactivity and who will not is a “classification involving race.” The petitioner recognizes in his argument that the criteria will affect all prisoners who have been convicted of more serious crimes and certain drug crimes, not only those prisoners who are members of a minority group.
Chiles has attempted to frame this case as one involving a classification based on race and one in which there is proven racial discrimination in past sentencing practices. While this may or may not be the situation, this court has no evidence upon which to base such a determination. Thus, the strict scrutiny test is not required on these alleged grounds.
Chiles also contends the strict scrutiny test is required because “[t]he limited retroactivity provision also interferes with the fundamental right to be at liberty, affecting all prisoners' who are excluded from retroactive application of the guidelines.” Application of the limited retroactivity provision does not result in the immediate liberty or freedom of those prisoners to whom the retroactivity provision applies. It merely results in the reealeu- lation of the length of those prisoners’ sentences. The strict scrutiny test is not required on these grounds.
Chiles next contends that even if strict scrutiny “is not required by the legislature’s finding of racial disparity among the sentences of current prisoners, the retroactivity limitation also fails under a rational basis review.” As noted previously, the legislature made no finding regarding the existence or nonexistence of racial disparity in the previous sentencing scheme.
With a rational basis review, relevance is the only relationship required between the classification and the objective. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. Insofar as the objective is concerned, a statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. The legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to' a legitimate objective. The rational basis test contains two substantive limitations on legislative choice: (1) legislative enactments must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a prescription that all persons similarly situated should be treated alike.
Chiles argues that the retroactivity provision creates distinctions between inmates along two lines: (1) inmates who were sentenced prior to the effective date of the Act as opposed to those sentenced thereafter and (2) inmates convicted of more serious offenses as opposed to those with less serious convictions. He argues this court must find that these two classifications rest upon some ground of difference having a fair and substantial relation to the objective of the legislation.
Chiles claims that although the classification at issue distinguishes between violent and nonviolent offenders,
“the actual inquiry is whether a rational basis exists for distinguishing between crimes committed before and after July 1, 1993. If six to seven years is an appropriate sentence for armed robberies after July 1, 1993, then it should also be appropriate for armed robberies before July 1, 1993. A classification based on nothing more than the date of an offense is arbitrary and devoid of any rational basis that promotes public safety.”
However, Chiles is inconsistent in claiming that the classification is based only on the date of offense after first having pointed out that there are two criteida underlying the application of the re-troactivity provision.
Chiles asserts that not only is the retroactivity limitation not related to furthering any of the purposes claimed by the State, but the retroactivity limitation also undermines a majority of those purposes. Specifically, he argues the limitation is not rationally related to furthering, and undermines the majority of, the following purposes (for the reasons or lack of reasons set out in the parentheses):
(1) the promotion of fairness in sentencing (because it is unfair to exclude violent offenders from the remedial benefit offered by the guidelines and because nonwhites on the average are serving longer sentences than whites);
(2) the reduction of prison overcrowding;
(3) the promotion of public safety (because continued incarceration of Chiles is inconsistent with the guidelines themselves, which would have ended his imprisonment years ago);
(4) the promotion of truth in sentencing;
(5) the preservation of corrections resources by imposing shorter sentences on nonviolent offenders (because only total retroactivity would do this).
Chiles makes some additional arguments disputing that one reason retroactivity was limited was because of the concern for the potential burden on post-release supei'vision, administrative costs, etc.
Regarding retroactivity, the general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates the legislature intended that it operate retrospectively. This rule is modified where the statutory change is merely procedural or remedial in nature and does not prejudi-cially affect the substantive rights of the parties. The prescription of a punishment for a criminal act is substantive, not procedural, law. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). It would be improper for this court to extend retroactivity when it is clearly limited in the Kansas Sentencing Guidelines Act. Regardless of how this court decides this matter, Chiles cannot have the benefit of the retroactivity provision because the ret-roactivity provision would reduce his punishment and retroactivity of the sentences for the crimes of which he stands convicted was clearly not intended by the legislature. This court would be changing the substantive law relative to the length of Chiles’ sentence if it ruled the retroactivity provision was applicable to him.
The legislature has the exclusive role of providing for the punishment of convicted criminals. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). It follows that the legislature has the power to enact legislation reducing the punishment of convicted criminals or granting leniency to them. The legislative power to punish convicted criminals is controlled only by the Constitutions of the United States and of the State of Kansas.
“Clearly, the sentencing function in a criminal case is considered a judicial function. [Citation omitted.] Equally clear is the legislature’s exclusive role in providing, through our statutes, for the punishment of convicted criminals. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas. State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).” 248 Kan. at 798.
“The power to prescribe the penalty to be imposed for the commission of a crime rests exclusively with the legislature, not the courts. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas.” State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
“[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Commn, 251 Kan. 240, 243, 834 P.2d 368 (1991).
“Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby.” State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20, 587 P.2d 844 (1978).
The State contends that a strict scrutiny analysis is not required in this case because a suspect class is not involved. According to the State, the class here involved is a class of prisoners, and prisoners are not a suspect class, nor do they have a fundamental right to parole or early release from expiration of a valid sentence. The State further argues that within the class of prisoners, Chiles is not similarly situated with prisoners who have the benefit of the retroactivity provision. The reason, according to the State, is that Chiles’ status is that of a serious or violent offender and that status removes him from the group of persons convicted of less serious crimes, and it is the latter group only which is entitled to retroactivity.
The State claims that Chiles’ attempt to compare his situation with persons sentenced on or after July 1, 1993, is also without merit because the legislature is free to enact any statute within its constitutional authority and apply it prospectively to future crimes. See State v. Sutherland, 248 Kan. 96, 107-08, 804 P.2d 970 (1991).
The State also contends that if a strict scrutiny test is appropriate, a compelling reason exists for the limited retroactivity provision, that is, the reduction of prison overcrowding while maintaining the public safety by allowing less serious criminals to serve less time, while more serious criminals continue to serve the sentence imposed’ by the trial judge after consideration of the statutory factors listed in K.S.A. 21-4601 and K.S.A. 1993 Supp. 21-4606.
The State also argues that another justification for the limited retroactivity provision is that a wholesale release of current inmates in the system would have a drastic effect on its ability to supervise prisoners post-release. The State cites portions of the minutes of the Senate Judiciary Committee, which state that “the view of the Committee is to allow retroactivity but not at the expense of the public safety or detriment of field'services.” (Minutes of the Senate Committee on Judiciary, January 24, 1992.)
The State also points out that the limited retroactivity provision is not without precedent:
“Beginning in 1984, persons without a prior felony conviction who were convicted of a class E felony were entitled to presumptive probation ‘unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated.’ L. 1984, Ch. 119 New Section 1, p. 613 (current version of K.S.A. 1992 Supp. 21-4606a). In 1989, the statute was amended to allow for presumptive probation for first-time felons convicted of class D felonies or an attempt to commit a class D felony, but again chapter 34, 35 or 36 crimes were excepted from the provision and felony drug crimes were also excepted. L. 1989, Ch. 92 § 3, p. 624. The crimes listed in chapter 34, 35 and 36 generally involve serious crimes against persons, such as murder or attempts or conspiracies to commit murder, sex crimes, other crimes committed against persons which involve the use of force, and crimes against family members. These are generally the same crimes excepted from retroactivity under the sentencing guidelines. The legislature’s decision to prevent persons convicted of these serious crimes from being granted probation is strong evidence of the compelling state interest in public safety.”
As noted, the State contends that a strict scrutiny test is not proper in this case. Further, the State argues that a rational basis review is appropriate and that under a rational basis review, the limited retroactivity provision clearly passes constitutional muster because the provision is reasonably related to the legitimate state interests in reducing the prison population while protecting public safety.
In Marshall v. United States, 414 U.S. 417, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974), the United States Supreme Court considered a case we deem analogous. In the Marshall case, the defendant pleaded guilty to entering a bank with intent to commit a felony. Congress had authorized the trial judge to exercise discretion and place a drug addict in rehabilitation treatment rather than prison. Congress also excluded from the rehabilitation program those persons convicted of a crime of violence or two or more prior felonies (other exclusions also applied).
Marshall was a drug addict. He also had three prior felony convictions for burglaty, forgery, and possession of a firearm. The trial court held that 18 U.S.C. § 4251(f)(4) (1988) (exclusion for two or more prior felonies) excluded Marshall from participation in the drug rehabilitation program in lieu of prison. Marshall moved to set the sentence aside on the ground that the two prior felonies exclusion denied him due process and equal protection.
The rehabilitation program provided rehabilitative commitment prior to trial, and upon successful completion of the treatment the charge would be dismissed.
The trial judge, Court of Appeals, and the United States Supreme Court all agreed there was no “suspect” classification under the statutory scheme because there is no “fundamental right” to rehabilitation from narcotic addiction at public expense after being charged with a felony. Thus, the correct test to be applied was the “rational basis” test. The standard to be applied was whether the statutory classification bore some relevance to the purpose for which the classification was made.
The Marshall court stated that the Due Process Clause of the Fifth Amendment does not require that all persons be dealt with identically so long as there is a rational basis for the disparity in treatment. The Court reasoned that Congress sought to include those most likely • to benefit from treatment and to treat others in the traditional manner. The Court said:
“It should be recognized that the classification selected by Congress is not one which is directed ‘against’ any individual or category of persons, but rather it represents a policy choice in an experimental program made by that branch of Government vested with the power to make such choices. The Court has frequently noted that legislative classifications need not be perfect or ideal. The line drawn by Congress at two felonies, for example, might, with as much soundness, have been drawn instead at one, but this was for legislative, not judicial choice. . . .
“We therefore hold that Title II of NARA, 18 U.S.C. §§ 4251-4255, does not constitute a denial of due process or equal protection by excluding from rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions.” 414 U.S. at 428-30.
In Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 67 L. Ed. 2d 437, 101 S. Ct. 1200 (1981), the United States Supreme Court considered a criminal statute that made it a crime for any male (regardless of age) to have sexual intercourse with any female (not his wife) who was under 18 years of age. The issue was the constitutionality of a statute which made one party to a consensual act guilty of a crime while the other party was classified as a victim, based solely on gender. The Court held the statute discriminatory on the basis of sex .and subject to the “strict scrutiny” test; thus, it had to be justified by a compelling State interest.
The Court held that at least one purpose of the statute was to prevent illegitimate pregnancies and that the State had a strong interest in preventing such pregnancies. From there, the Court seemed to reason that if the statute was gender-neutral, the purpose would be thwarted because there would be little, if any, cooperation from the female.
From Marshall, we would conclude the correct test is the rational basis test. In Marshall, violent offenders were excluded as were those with a criminal history of two or more felony convictions. Thus, the salient provisions are very similar to those presented by the case at bar.
Chiles does attempt to gain “strict scrutiny” review based on his argument that one of the primary pui-poses of the new sentencing guidelines is to correct perceived racial bias. The record does not clearly show racial bias, as the disparity discussed by various witnesses may be due to socioeconomic reasons rather than racial bias. However, it is very clear that the study conducted showed that blacks fared worse than whites at every stage studied.
We view the dispositive .question here as whether the sentencing guidelines are unconstitutional. Thus, the Marshall case controls and the review standard is whether there is a rational basis for the classification.
The “more serious v. less serious offenses” classification involved in this case, for purposes of determining who will receive the benefits of retroactivity and who will not, is rationally related to the purpose of reducing the prison population while protecting public safety.
If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. The limited retroactivity provision of the Kansas Sentencing Guidelines Act does not clearly violate the constitution. There is no suspect class or fundamental right involved in this case.
Here, the retroactivity provision is valid in that it is reasonably related to the legitimate objective of reducing prison population while maintaining public safety. There is no violation of the Equal Protection Clause of the United States Constitution and no violation of § 1 of the Kansas Constitution Bill of Rights.
In the statement of the issue in his pro se petition for writ of mandamus and quo warranto, Chiles also argues he has been denied due process:
“Senate Bill No. 479, its limited retroactivity, is violative of the equal protection and due process provision of the Fourteenth Amendment to the United States Constitution and Section One and Two of the Kansas Bill of Rights-in that the statute discriminates between current inmates and those to he sentenced on or after July 1, 1993-in a manner which bears no rational relationship to the purpose of the legislation.” (Emphasis added.)
The State notes that due process challenges to legislative acts are not a favored method of challenging legislation because the court is not authorized to act as a “super-legislature” and strike down any laws it thinks are unwise, improvident, or inappropriate. See Blue v. McBride, 252 Kan. 894, 903, 850 P.2d 852 (1993).
The State argues that the Kansas Sentencing Guidelines Act bears a real and substantial relation to legitimate government objectives and is reasonable in relation to these objectives. The State further argues that, in particular, the limited retroactivity provision of the Kansas Sentencing Guidelines Act was clearly adopted to serve the community interest in public safety.
“A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof.” Peterson v. Garvey Elevators, Inc., 252 Kan. 976, Syl. ¶ 4, 850 P.2d 893 (1993).
In Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988), this court stated:
“The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the state and the individual dealing with the state, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a state between classes of individuals whose situations are arguably indistinguishable. Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). The test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors.
“When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614, 576 P.2d 221 (1978).”
In Peterson, 252 Kan. 976, a due process challenge was made to K.S.A. 1992 Supp. 44-528. In considering the challenge there, the court stated: “[I]n addressing whether K.S.A. 1992 Supp. 44-528(a) violates equal protection, we implicitly will have determined if the statute violates due process.” 252 Kan. at 981.
In looking at the limited retroactivity provision and the sentencing grids, it is apparent that the legislature intended to give the benefits of retroactivity only to those prisoners who had been convicted of less serious offenses. The legislature’s objective was to achieve the reduction of prison overcrowding by the early release of some prisoners while concomitantly promoting the public safety by limiting the early release to less serious offenders. It is reasonable to assume that the interest of the public safety of the community underlay the legislative decision to limit the scope of the retroactivity provision to less serious offenders. The limited retroactivity provision is reasonable in relation to its subject, was adopted in the interest of the community, and is not violative of due process.
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The opinion of the court was delivered by
Abbott, J.:
The natural mother of J.H.G., a minor child, appeals the trial court’s denial of her motion to set aside a decree of adoption filed on March 4, 1992. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
The facts are largely undisputed. The natural mother, E.G., now 24, was born and raised in Ethiopia. After she was graduated from high school she moved to Manhattan, Kansas, in 1988 to attend Kansas State University. She has completed several semesters at Manhattan Christian College and at Kansas State University, where she is studying computer science. During high school in Ethiopia she studied English and, after moving to Manhattan, she successfully passed an English proficiency test.
In August 1990, the natural mother was married to G.D. Shortly thereafter, her husband moved to Germany for one year on a scholarship. He returned to Manhattan in August 1991.
In July 1991, E.G. discovered she was pregnant as a result of sexual intercourse with C.D. (not her husband) in late April or early May 1991. She informed C.D. of the pregnancy and they discussed her options, including abortion and adoption. A friend who was aware of E.G.’s dilemma introduced her to the appellees herein, who expressed an interest in adopting E.G.’s child.
The adoptive parents met with the natural mother. They arranged for the natural mother to see Dr. Fischer, provided transportation, and accompanied her to several appointments throughout the pregnancy. The adoptive parents agreed that if they were allowed to adopt the child, they would pay the natural mother’s medical expenses.
During one of the visits to the doctor, the adoptive mother informed the natural mother that Meryl Wilson, an attorney in Manhattan, would be handling the adoption. The adoptive mother offered to hire an attorney for the natural mother if she desired.
On January 24, 1992, the natural mother went into labor and arrived at the hospital in the early morning hours. At approximately 6:00 a.m., her husband informed the adoptive parents that his wife was in labor, and the adoptive parents went to the hospital.
The child was born at 11:04 a.m. Dr. Fischer testified that various drugs were given during labor, but he opined that the drugs would have dissipated by 10:00 a.m. Dr. Fischer noted that a labor period from 12:00 a.m. to 11:04 a.m. would be “very average.” Dr. Fischer also noted that there was no mental or cognitive impairment due to either the drugs administered or the natural mother’s fatigue.
The baby was placed with the natural mother in the delivery room from 11:40 a.m. to 1:00 p.m., when the baby was taken to the nursery. At 12:15 p.m. the natural mother went to the bathroom and reported no dizziness. She was served lunch. She was moved to a private room where she and her husband fell asleep. She awakened at approximately 2:15 p.m. when the adoptive parents came into the room and informed her that the attorney was there.
Meryl Wilson entered the room after the adoptive parents left and introduced himself. Nancy Knopp, a social worker for the hospital and the wife of Wilson’s law partner, was with him. Wilson handed the natural mother two documents, a “Consent of Natural Mother” and a “Statutory Consent to Adoption, Consent to Adoption of Minor Child, Notice to Parent.” Wilson read aloud the first paragraph of the “Statutory Consent to Adoption,” which states: “This is an important legal document and by signing it, you are permanently giving up all custody and other parental rights to the child named herein, so as to permit the child’s adoption. You are to receive a copy of this document.” The natural mother, by her testimony, spent 10 or 15 minutes reading the documents. She questioned Wilson as to why there was nothing about visitation in the documents. The natural mother and her husband testified Wilson told her that visitation was not supposed to be addressed in the documents, but that it was an issue between her and the adoptive parents. Wilson testified he told her that by signing the documents she was giving up all parental rights, and that any agreement concerning visitation would be between her and the adoptive parents. Wilson then asked if she still wanted to sign the documents, and she did sign them. Wilson also gave tire natural mother’s husband a “Consent to Adoption” form, which he signed. Wilson had the natural mother’s husband sign this form because of the statutory presumption that the husband is the natural father, even though Wilson knew that the natural father was someone other than the natural mother’s husband.
Wilson notarized all three forms. The time the documents were signed is not noted on the forms. However, the parties agree that the documents were signed sometime before 3:00 p.m., and they were filed at 3:21 p.m. on January 24, 1992, in the Riley District Court. The signing time was approximately four hours after the birth of the child.
The natural mother had some limited contact with the adoptive parents on January 25, 1992, as she was leaving the hospital after her release. The next contact was two or three weeks later, when the natural mother called the adoptive parents regarding whether their insurance would pay for a visit to the doctor because she was experiencing bleeding.
The final adoption hearing was held on March 2, 1992, and a decree of adoption was filed on March 4, 1992. Although C.D. (the natural father) was given notice of the hearing by certified mail (for which he signed) and by newspaper notice, he did not attend the hearing.
The natural mother next spoke with the adoptive mother the day that the final decree was filed and asked if she could see the baby. A few days later, the adoptive mother took J.H.G. to the Pizza Hut where the natural mother was working, and the visit lasted approximately 30 minutes.
In May 1992, the adoptive mother was hospitalized when she underwent a hysterectomy. The natural mother and her husband visited the adoptive mother in the hospital and were given a picture of the baby.
On Father’s Day weekend, the adoptive mother brought the baby to visit the natural mother and her husband, and they spent approximately 30 minutes with the baby.
The natural mother later called the adoptive mother to request that they set up a schedule of visitation. The adoptive mother declined. The natural mother testified that the adoptive mother told her she should not see the child between the ages of 2 and 18, and the natural mother responded that she would not have agreed to the adoption without the visitation. The adoptive mother then called the natural mother’s husband and suggested that his wife get counseling. The natural mother called the adoptive parents the next morning and was told she could no longer see the child.
That evening, the natural mother called Nancy Knopp to see if she remembered the discussion with Wilson concerning visitation. Knopp was unable to recall the discussion.
The natural mother then engaged her present counsel who, on July 13, 1992, filed the motion to set aside the consent to the adoption, which is the subject of this appeal. C.D., at the request of the natural mother (who chose and paid C.D.’s attorney), also filed a motion to set aside the adoption decree. C.D.’s motion was dismissed for lack of prosecution when he failed to appear for a scheduled blood test, and he has not appealed.
After hearing evidence and considering briefs filed by the parties, the trial court entered judgment in favor of the adoptive parents. In its memorandum decision, the trial court made the following findings of fact:
“[T]he natural mother herein is an Ethiopian student attending Kansas State University. She studied English for several years while growing up in her native country and from her testimony and appearance on the witness stand, the Court believes she speaks fluent English and understands the language well. Her command of the English language has allowed her to steadily progress in Computer Science, a difficult program at Kansas State University.
“During the summer of 1991, movant . . . found herself to be pregnant. Her husband, . . . now a mathematics instructor at K.S.U., was out of the country, and though he is the statutorily presumed father of the baby in this case, it is clear from the evidence that he is not the natural father because of his lack of access to movant.
“Upon learning she was pregnant, movant began to consider her options. She called an adoption agency in Kansas City and learned that she would have no rights to the child if an adoption was granted. Nonetheless, she concluded it was best to give her unborn child up for adoption at its birth. Abortion was out of the question in her mind. Toward the end of adoption, she arranged through a mutual acquaintance to meet with . . . the adoptive parents. That meeting took place on or about August 10, 1991. No agreement between movant and the [adoptive parents] was made at that -time regarding either the fact of adoption or regarding visitation if an adoption should take place.
“After a few days, [the adoptive mother] and movant conferred by telephone and it was determined that the [adoptive parents] could proceed to adopt movant’s baby. [The adoptive mother] offered to pay for legal counsel for movant. [The adoptive mother] also arranged to have movant seen by Hex Fischer, M.D., an obstetrician-gynecologist, for the purpose of prenatal care. [The adoptive mother] accompanied movant to see Dr. Fischer on nine separate occasions between August, 1991, and the baby’s birth on January 24, 1992. The [adoptive parents] also agreed to and did pay all of movant’s expenses for prenatal care and child birth.
“Dr. Fischer testified, and the Court so finds, that [the adoptive mother] was with movant at all prenatal appointments, and that there was never any discussion of adoption being contingent on visitation rights, and that from his perspective this was a normal adoption, i.e. movant knew at all times what she was doing and what she wanted to do.
“In January, 1992, just prior to the birth of the baby, movant and her husband met with the [adoptive parents] and for the first time discussed in depth the issue of visitation. No agreement was reached other than that movant agreed not to see the baby for a minimum of six months after its birth and the [adoptive parents] agreed to allow her to do so. No promises or representations were made by the [adoptive parents] as to any specific times or numbers of visitations to be exercised, nor was there any discussion that the proposed adoption was contingent upon visitation.
“Shortly after midnight on January 24, 1992, movant went into labor and presented herself at St. Mary Hospital. [The adoptive mother] arrived in the early morning hours and remained in the delivery room with movant for several hours until the birth of the baby. According to Dr. Fischer, movant’s labor and birth experience were unremarkable and within normal limits. The drugs administered to movant during labor and delivery (pitocin drip, motrin, parlodel & zylocaine) were given in standard dosages. None were mood-altering, none would have had any affect [sic] on her brain function, and all would have dissipated from her system by the time she signed the adoption consent in mid-afternoon.
“Movant’s baby was born at 11:04 a.m. on January 24, 1992. Movant remained in the labor room until about noon, during which time she had lunch and held the baby for a few minutes. Thereafter, she was moved to a regular room where she napped for approximately two hours.
“At around 2:30 in the afternoon, attorney Meryl Wilson, who represented the [adoptive parents], arrived at the hospital for the purpose of securing a consent to adopt from movant. Wilson knew that he was seeking a consent within 12 hours of birth, but justified his actions because he knew such a consent was only voidable, he understood the parties were in agreement, and he learned that hospital authorities wanted him to try to get a temporary custody order that afternoon, a Friday, so that the baby could be released from the hospital before the weekend was over.
“Wilson and Nancy Knopp, the hospital social worker, spent approximately 15 minutes or so with movant and her husband at sometime around 2:30 or 3:00 that afternoon. Wilson read the top portion of the prepared consent to movant and then gave her both the Statutory Consent to Adoption— Notice to Parent and a Consent to Adoption to read and, if she understood and agreed, to sign. He also gave a consent form to [movant’s husband] and explained it to him. At no time did Wilson indicate he was movant’s attorney. In fact, he advised her he represented the [adoptive parents]. During the time Wilson was with movant, she asked him something about visitation rights. Wilson explained to her that by signing the consent she was giving up all rights to the baby and anything to do with visitation would have to be taken up with the [adoptive parents]. [Movant’s husband] had no questions about the consent he signed.
“Both Wilson and Nancy Knopp testified that in their opinion, movant was lucid, understood the consent documents, and agreed to and did voluntarily sign them.
“Thereafter Wilson left the hospital, filed a petition for adoption, and obtained an order of temporary custody in favor of the [adoptive parents]. A Decree of Adoption was entered by this court on March 2, 1992. At no time prior to the entry of the Decree did movant make any claim that her consent was not freely and voluntarily obtained.”
The trial court denied the natural mother’s motion to set aside the consent to adoption, finding that her consent was freely and voluntarily given despite the fact it was given less than 12 hours after the birth of the child and that deficiencies in the adoption petition did not divest the court of jurisdiction to grant the adoption because the petition substantially complied with statutory requirements.
This appeal followed.
In In re Adoption of Baby Girl H, 12 Kan. App. 2d 223, 739 P.2d 1 (1987), the Kansas Court of Appeals considered the vol-untariness of a consent to adoption which was executed between eight minutes and one hour and eight minutes after the birth of the child. The court stated:
“The majority has considered adopting a ‘bright line’ rule, that a consent signed within one hour of birth is void as a matter of law. Perhaps it is better left to the legislature to adopt a specific waiting period, if one is to be provided. The legislature has seen fit to provide a waiting period before a release can be validly executed. K.S.A. 60-2801. Surely an 18-year-old unmarried mother’s decision to give up a child for adoption deserves as much consideration.
“The majority has no hesitancy in stating that a consent, acknowledged before a judge of a court of record in the delivery room seconds after the umbilical cord is cut, is void. What period is a decent and medically sound interval of time after birth before a mother can execute a valid consent to an adoption will obviously vary, depending upon the individual involved, the difficulty of the birth, and the medication given. This birth is the first child of an eighteen-year-old unmarried mother. We have some hesitancy in saying it is a medical issue, because we are sure all doctors have had the experience of a patient making sense and in apparent control of his/her mental processes, only to learn later that he/she has no recollection of the conversation, who was present, etc.
“We hold that the natural mother must have the opportunity to prove that the consent is void or voidable because of her inability to understand and fully comprehend what she was doing when the consent was signed, due to medication and/or the stress and pain of having given birth to a child shortly before.” 12 Kan. App. 2d at 231.
In response to Baby Girl H, the Kansas Legislature in 1990 enacted K.S.A. 1993 Supp. 59-2116, which provides, “A consent or relinquishment may not be given by the mother or accepted until 12 hours after the birth of a child. Any consent or relinquishment given by the mother before 12 hours after the birth of a child is voidable.”
In the case at bar, it is undisputed that the natural mother signed the consent forms less than four hours after the birth of her child. The issue, however, is when must the natural mother seek to revoke her consent executed prior to expiration of the statutory 12-hour time period? The natural mother suggests that, upon her request, her consent given less than 12 hours after the birth of her child is void and that such a request may be made after the final adoption decree is issued.
The adoptive parents contend first that K.S.A. 1993 Supp. 59-2116 and K.S.A. 1993 Supp. 59-2114 must be considered in pari materia. K.S.A. 1993 Supp. 59-2114 states in relevant part that “[a] consent is final when executed, unless the consenting party, prior to final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given.” (Emphasis added.) They suggest that the time frame for revoking a consent under K.S.A. 1993 Supp. 59-2114 applies to K.S.A. 1993 Supp. 59-2116 as well; therefore, because the natural mother failed to set aside her consent before the final adoption decree was issued, her attempt to do so in this action is not timely. Further, they argue that even when a consent is given before the 12-hour waiting period expires, the consent should not be set aside if the evidence shows that the consent was freely and voluntarily given.
The natural mother contends that the time period provided in K.S.A. 1993 Supp. 59-2114 for revoking a consent for the reason that it was not freely and voluntarily given does not govern voiding a consent which is given before the 12-hour waiting period expires. She also argues that she must do nothing more than seek to revoke her consent in order to have it revoked; she need not prove that the consent was involuntary. The mere fact that it was given less than 12 hours after the birth of her child is sufficient to void the consent..
The legislative history of K.S.A. 1993 Supp. 59-2116 shows that several concerns went into that statute. Originally, it was proposed to contain a 24-hour waiting period; ultimately, it only provides a 12-hour waiting period. Further, early versions of the proposed statute provided that consent given within the waiting period would be “void,” but the final version enacted by the legislature provides only that consent given within the waiting period is “voidable.”
Minutes of the Judicial Council Family Law Advisory Committee meeting held December 10, 1987, indicate that
“[t]here appeared to be general agreement that there should be a waiting period following the birth of a child before a valid consent can be given. It was noted that S.B. 337 contains a 24-hour waiting period.
“Concerns were expressed that a right of recision in connection with consents would threaten permanency for the child to be adopted. It appeared the committee was inclined to attempt to establish safeguards prior to the time a relinquishment or consent to adoption is given to insure it is done freely and voluntarily.
“Ms. Achterberg made a motion, seconded by Judge Phillips, that (1) consents to adoption cannot be given until 24 hours after the child’s birth, (2) there be no time period within which the consenting person has an automatic right of recision .... The motion carried by a vote of 5-1 with Mr. Moline opposed.”
In 1989, the legislative committee voted to “change the word Void’ to Voidable’ regarding consent or relinquishment to adoption prior to the 24-hour waiting period,” and to “change the mandatory time for consent from 24 to 12 hours for the birth mother and to allow the birth father to consent or relinquish anytime after birth.” Minutes of the July 7, 1989, Judicial Council Family Law Advisory Committee meeting show that the committee discussed the use of the word “void” in the proposed statute:
“The committee discussed whether or not this would allow, in a situation where an adoptive parent dies intestate, a sibling to raise the voidness of an adoption where a consent was given too early. Judge Bruner suggested this may be the result under present law since consent is viewed as jurisdictional in adoption cases. Mr. Moline stated there is case law to the effect that in the absence of specific statutory language indicating something is void, the matter will be viewed as voidable and thus limit who may raise the issue and when it may be raised. Judge Mershon stated that, in any event, most people will view it as highly advisable to comply with the 24-hour provision and he preferred the committee’s original language on this subject in that it may allow the court certain flexibility if such issues should arise. A motion by Mershon, seconded by Moline, to request the Council to reconsider its action on this matter carried with none opposed.”
At the October 6, 1989, meeting the Judicial Council committee voted to substitute the word “voidable” for “void.” Judicial Council comments to the proposal in 1990 indicate, “The committee recognizes that the [12]-hour waiting period will not assure a free and voluntary consent in every case, however, it does add a degree of protection that is not mandated under the present statutes.”
The rules of statutory construction have been frequently stated:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.’ State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In order to construe one part of a statute, it is permissible to look at other parts of it. ‘The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ Easom v. Farmers Insurance Company, 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 (1977).” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991).
See City of Wichita v. 200 South Broadway, 253 Kan. 434, Syl. ¶¶ 1, 2, 855 P.2d 956 (1993).
“The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted.”
“In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.”
“In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.” Brown v. Keill, 224 Kan. 195, Syl. ¶¶ 2-4, 580 P.2d 867 (1978).
However, “[w]hen 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.” In re Estate of Fortney, 5 Kan. App. 2d 14, 21, 611 P.2d 599, rev. denied 228 Kan. 806 (1980).
Here, the legislature was concerned that the court have jurisdiction. The legislature was aware that “[c]onsent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to jurisdiction on the part of the court to render a valid decree of adoption.” In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). A void judgment has no valid force and effect and may be set aside at any time, Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124, rev. denied 231 Kan. 799 (1982), while a voidable judgment is valid until it is avoided. Clearly, the legislature knew the difference between “void” and “voidable” and used the term “voidable” in K.S.A. 1993 Supp. 59-2116 with the intent that a consent given by the natural mother within 12 hours after the birth of a child is voidable and not void.
When we read the entire act and consider the reasons for applicable amendments and what the legislature was attempting to accomplish, we reach the following conclusions.
A consent given by the natural mother within 12 hours of the birth of the child is voidable by the natural mother at any time prior to the trial court entering a final decree of adoption. All that is necessary for the natural mother to avoid the consent is for her to allege and prove the consent was given within 12 hours after the birth of the child.
“The legislative intent evidenced in the law reflects a strong public policy to stabilize adoptions and prevent revocation of consent of the mother on a mere whim.” In re Adoption of Irons, 235 Kan. 540, 547, 684 P.2d 332 (1984). That aim would not be accomplished if the natural mother could avoid her consent to the adoption after the trial court enters a final adoption decree on a showing of nothing more than the time the consent was signed.
K.S.A. 1993 Supp. 59-2114 and K.S.A. 1993 Supp. 59-2116 must be read together and harmonized. K.S.A. 1993 Supp. 59-2114 provides that a consent executed in accordance with that statute is final when executed unless the consenting party, prior to the final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given. As we view K.S.A. 1993 Supp. 59-2116, it relieves the natural mother of having to allege and prove by clear and convincing evidence that the consent given within 12 hours of birth was not freely and voluntarily given. It does not, however, relieve the natural mother of the time frame within which to seek avoidance of her consent. Thus, here, the natural mother’s attempt to set aside the consent to adoption because the consent was executed less than 12 hours after the birth of the child is not timely.
Once the adoption decree is final, the natural mother’s attempt to set the decree aside is governed by K.S.A. 60-260. See K.S.A. 59-2213; In re Adoption of Hobson, 8 Kan. App. 2d 772, 775, 667 P.2d 911 (1983). A motion to set aside an adoption decree for fraud must be filed within one year • after the decree was entered. K.S.A. 59-2213; K.S.A; 60-260(b)(3); Jones v. Jones, 215 Kan. 102, 113-15, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974).
The natural mother’s motion to set aside the decree on grounds other than that the consent was not freely and voluntarily given and was void because it was given within 12 hours of the birth of the child is timely.
K.S.A. 60-260(b) provides:
“On motion and upon such terms as are just, the court may relieve a party or said party's legal representativé from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
Whether the natural mother’s motion is viewed as alleging fraud, misrepresentation, or other misconduct of the adverse parties, or as not being valid because she did not intend to relinquish all parental rights (she alleges she intended to retain visitation rights), her argument fails for the same reasons.
The trial court held that the natural mother failed to prove fraud or misrepresentation:
“Viewed in its best light, movant’s evidence shows only that the subject of visitation was discussed by the parties and that there was no clear understanding and agreement as to what, if any, visitation would be allowed. The only thing that all parties acknowledge was that there was to be no visitation for at least six months. Yet, movant sought and was granted visitation on at least two occasions prior to six months. The Court asks the rhetorical question why, if [the adoptive mother] intended to defraud movant, did she allow any visitation at all, especially prior to the six month period? The answer seems obvious to the Court. There was no misrepresentation and there was no agreement. There was only a concern on the part of [the adoptive mother] for a young woman for whom she had developed fond feelings.”
The natural mother had the burden of proof, and the trial court found against her. The record contains substantial competent evidence to support the trial court’s finding. Although the evidence does show that the natural mother was concerned about maintaining contact with her child after adoption and that she expected to maintain a regular visitation schedule after six months, it is undisputed there was no formal agreement as to visitation. Clearly the parties had different interpretations about what “no visitation before six months” meant as to the extent of visitation after six months.
In addition, many of the natural mother’s issues and arguments fall under the category of voluntariness of her consent, an issue which is time barred by K.S.A. 1993 Supp. 59-2114.
A petition for adoption must include certain information. Among the required infomiation for an independent adoption is:
“(A) The name, residence and address of the petitioner;
“(B) the name of the child, the date, time and place of the child’s birth, and the place at which the child resides;
“(C) the suitability of the petitioner to assume the relationship;
“(D) whether one or both parents are living and the name, date of birth, residence and address of those living, so far as known to the petitioner;
“(E) the facts relied upon as eliminating the necessity for the consent, if the consent of either or both parents is not obtained;
“(F) the information required by the uniform child custody jurisdiction act under K.S.A. 38-1309 and amendments thereto; and
“(G) whether the interstate compact on placement of children, K.S.A. 38-1201 et seq., and amendments thereto, and the Indian child welfare act, 25 U.S.C. 1901 et seq., are applicable and have been or will be complied with prior to the hearing.” K.S.A. 1993 Supp. 59-2128(a)(1).
Further,
“The written consents to adoption required by K.S.A. 59-2129, and amendments thereto, the background information required by K.S.A. 59-2130, the accounting required by K.S.A. 59-2121 and any affidavit required by K.S.A. 59-2126 shall be filed with the petition for adoption.” K.S.A. 1993 Supp. 59-2128(b).
The background information required by K.S.A. 1993 Supp. 59-2130 includes:
“(1) [a] complete written genetic, medical and social history of the child and the parents; (2) the names, dates of birth, addresses, telephone numbers, and social security numbers of each of the child’s parents, if known; (3) any hospital records pertaining to the child or a properly executed authorization for release of those records; and (4) the child’s birth verification, which shall include the date, time and place of birth and the name of the attending physician.”
The accounting required by K.S.A. 1993 Supp. 59-2121(b) consists of “a detailed accounting of all consideration given, or to be given, and all disbursements made, or to be made, in connection with the adoption and the placement for adoption.” The affidavit required by K.S.A. 1993 Supp. 59-2126 applies only if the venue of the adoption proceeding is in the county in which the child to be adopted resides.
The natural mother maintains that much of the information required to be included with the petition for adoption was not included; therefore, the court issuing the decree of adoption lacked jurisdiction to do so. The petition for adoption was deficient in several aspects and the trial court acknowledged this. The question, however, is whether these deficiencies did deprive the court of jurisdiction to issue the adoption decree.
The petition for adoption did not state the time of the child’s birth. However, the statutory consent to adoption signed by the natural mother and filed contemporaneously with the petition for adoption did state the time of the child’s birth.
The petition for adoption did not state the dates of birth of the child’s parents. However, the natural mother’s date of birth was noted on the statutory consent to adoption signed by her and filed contemporaneously with the petition for adoption.
The petition for adoption did not specify the facts relied upon as eliminating the necessity for the natural father’s consent since his consent was not obtained. However, the consent of the natural mother’s husband as the putative father was obtained and filed contemporaneously with the petition for adoption. Further, the petition for adoption did state that the whereabouts of the natural father were unknown.
The petition did not include the information required by the Uniform Child Custody Jurisdiction Act (UCCJA), such as “the child’s present address, the places where the child has lived within the past five years, and the names and present addresses of the persons with whom the child has lived during that period” or whether the petitioners had participated in any other litigation concerning the custody of the child or whether the petitioners had information of any pending custody proceeding concerning the child. K.S.A. 38-1309. However, the petition did include the child’s date of birth, which was the same as the date the petition was filed, and the statutory consent to adoption signed by the natural mother and filed contemporaneously with the petition for adoption included the time of birth. The UCCJA was not an issue here because the child to be adopted was a newborn and all the parties involved resided in the same Kansas county.
The petition for adoption did not include a statement concerning whether the Interstate Compact on the Placement of Children or the Indian Child Welfare Act applied. In this case neither of those did apply.
The petition for adoption did not include the background information required by K.S.A. 1993 Supp. 59-2130. However, some of that information was included in the petition itself and in the documents, including the home study, filed contemporaneously with the petition for adoption.
The accounting required by K.S.A. 1993 Supp. 59-2121 was not included with the petition for adoption. However, an ac counting was filed on March 4, 1992, after the final hearing on the adoption but contemporaneously with the filing of the decree of adoption.
The adoptive parents contend, and the trial court agreed, that the requirements of K.S.A. 1993 Supp. 59-2128 are only directory and not mandatory; hence, substantial compliance with the requirements is sufficient. The natural mother, on the other hand, insists that a greater degree of compliance is necessary. Both parties cite Renz v. Drury, 57 Kan. 84, 89 (1896), wherein this court stated, “we think it fairly settled by the authorities that in a state having a statute regulating the adoption of children the provisions thereof must be substantially followed in order to clothe the adopted child with the right of inheritance.”
In In re Adoption of Trent, 229 Kan. 224, 624 P.2d 433 (1981), this court discussed the requirements of K.S.A. 59-2102 (now K.S.A. 1993 Supp. 59-2114, K.S.A. 1993 Supp. 59-2115, and K.S.A. 1993 Supp. 59-2129). There, before an adoption decree was final, the natural mother sought to set aside her consent on the ground that it was not properly notarized. The consent had been signed by the natural mother and acknowledged by a notary public in Missouri; however, the acknowledgement was made by a Kansas notary public who lacked the authority to act beyond the boundaries of Kansas. This court applied the doctrine of substantial compliance. 229 Kan. at 227. We recognized our prior decisions holding that “the provisions of the adoption statutes must be strictly construed in favor of maintaining the rights of natural parents in controversies involving termination of the parent-child relation.” 229 Kan. at 228. Noting that “the purpose and intent of the legislature governs when that intent can be ascertained from the statutes [and that it is proper to consider] the purpose to be accomplished, and the necessity and effect of the statute,” this court held that “[t]he purpose and necessity of a written consent is to insure that the natural parent freely and voluntarily consents to the adoption.” 229 Kan. at 228. This purpose was served even though the consent was acknowledged in Missouri by a Kansas notary public; therefore, the consent was freely and voluntarily given.
The doctrine of substantial compliance is applicable here as well. Although K.S.A. 1993 Supp. 59-2128 does use mandatory language (“shall”), we are unable to find that the absence of one or more of those requirements necessarily divests a court of jurisdiction to grant a petition for adoption. In Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976), this court stated:
“[A] judgment is not void merely because it is erroneous or because some irregularity inhered in its rendition. It is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process.”
See Producers Equip. Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, Syl. ¶ 2, 808 P.2d 881 (1991). Where a document filed contemporaneously with a petition for adoption includes the requisite information, though that information is not included in the petition for adoption itself, a party has substantially complied with the requirements of K.S.A. 1993 Supp. 59-2128. Substantial compliance with K.S.A. 1993 Supp. 59-2128 can also be found even when neither the petition for adoption nor the documents filed contemporaneously with the petition include some of the required information, if it is clear that the information lacking has no bearing on the adoption.
Here, the petition and the consents filed contemporaneously with the petition included much of the information required by K.S.A. 1993 Supp. 59-2128. Noticeably lacking, however, was information concerning the UCCJA,' the Interstate Compact on the Placement of Children, and the Indian Child Welfare Act; the accounting of the expenses paid by the adopting parents; and the statement of background information concerning the genetic, medical, and social history of the child and its natural parents.
The accounting of the expenses paid by the adoptive parents was eventually filed with the court on March 4, 1992. Although this was after the final hearing, the document was filed contemporaneously with the adoption decree; thus, it was available to the trial court before the adoption decree was finalized. The purpose of requiring an accounting under K.S.A. 1993 Supp. 59-2121 in part is to insure that the adoptive parents are not improperly paying more consideration to the natural parents than is permitted by statute. Filing the accounting at the same time the adoption decree is filed appears to be substantial compliance with K.S.A. 1993 Supp. 59-2121, even though the information was not given to the court at the time the adoption petition was filed.
Because the UCCJA, the Interstate Compact on the Placement of Children, and the Indian Child Welfare Act were not issues in this case, the absence of this information from the petition for adoption does not preclude a finding of substantial compliance here. K.S.A. 1993 Supp. 59-2128 does require that the petition for adoption state “whether” the Interstate Compact on the Placement of Children and the Indian Child Welfare Act apply, indicating that the information should be included even if those acts do not apply. However, it would seem that the purpose of this requirement is to merely insure that the trial court is informed when those acts do apply. Because the adoption proceedings were not affected by the lack of this information in the adoption petition, the petition for adoption substantially complies with the requirements of K.S.A. 1993 Supp. 59-2128.
The failure to include a statement of background information pursuant to K.S.A. 1993 Supp. 59-2130 concerning the genetic, medical, and social history of the child and its parents and the child’s birth verification is troubling. The purpose or necessity of including this information in the petition for adoption is to benefit the child as it is useful in medical care and treatment. The record does show, and the trial court so found, that some of this information was contained in the home study filed contemporaneously with the adoption petition on January 24, 1992. However, it appears that the background information was obtained from the adoptive parents and no background information was obtained directly from the natural mother or natural father. Despite this, the trial judge found substantial compliance, and the record contains substantial competent evidence to support that finding.
The petition for adoption also failed to state “the facts relied upon as eliminating the necessity for the consent” of the natural father of the child. K.S.A. 1993 Supp. 59-2128(a)(l)(E). K.S.A. 1993 Supp. 59-2136 provides that where a father’s consent has not been obtained, if a mother consents to the adoption of her child,
“a petition shall be filed in the district court to terminate the parental rights of the father, unless the father’s relationship to the child has been previously terminated or determined not to exist by a court. The petition may be filed by the mother [or] the petitioner for adoption .... Where appropriate, the request to terminate parental rights may be contained in a petition for adoption.”
The petition for adoption made no request to terminate the parental rights of the natural father, even though his parental rights had not previously been terminated.
The natural mother contends that the failure to terminate the natural father’s parental rights pursuant to K.S.A. 1993 Supp. 59-2136 renders the adoption decree void. The trial court found that the natural mother lacked standing to challenge the adoption on these grounds.
In Trent, 229 Kan. at 231-32, the natural mother sought to challenge the validity of-a written consent signed by the natural father before the child’s birth. This court noted that the adoption consent statute “does not state that either natural parent may attempt to revoke a consent freely and voluntarily given by the other parent.” Because a consent to adoption given by one parent was not binding on the other parent, this court stated, “We can find no basis upon which the natural mother can challenge a separate legal instrument executed by the natural father.” 229 Kan. at 232.
Whether or not the natural father’s parental rights were terminated has no bearing on the consent the natural mother executed. We do note the natural father attempted to set aside the adoption decree on grounds that the procedure was flawed as to him. However, this motion was dismissed for failure to prosecute and for failure to comply with blood testing. The natural father has not appealed the dismissal. The natural mother does not have standing to assert the natural father’s rights.
K.S.A. 1993 Supp. 59-2133(b) provides that in an independent adoption, “notice of the hearing on the petition shall be given to the parents or presumed parents.” The parties here agree that under K.S.A. 1993 Supp. 59-2208 a parent may waive notice.
The consent of the natural mother contained the following provision:
“Further, I freely and voluntarily waive all notices of proceedings for the adoption of said minor child and enter my appearance in any proceeding instituted in the district court of Kansas for the purpose of adoption of the minor child by [the adoptive parents], husband and wife, and consent to such proceedings and to a decree of adoption being entered.”
The natural mother contends that this waiver is ineffective for two reasons. First, she believed that there would only be a hearing on the same day she signed the consent and was unaware that there would be a final hearing at a later date. Second, she signed the consent less than 12 hours after the birth of her child. Therefore, she contends, the same protection given a parent prohibiting the giving of a consent to adoption less than 12 hours after birth should apply to prohibit the signing of a waiver of notice less than 12 hours after birth.
The protection of K.S.A. 1993 Supp. 59-2116 prohibiting the giving of a consent less than 12 hours after birth of the child does not apply to the signing of a waiver of notice. K.S.A. 1993 Supp. 59-2208 only requires that waiver be made by a competent person. The trial court found that the natural mother, who had given birth approximately four hours before signing the waiver, was not incompetent to make an effective waiver, and she signed the waiver freely and voluntarily.
The next question is whether the natural mother knew what right she was waiving. The consent waives “all notices of proceedings.” By signing the consent, she was agreeing to waive any and all notice of any proceeding concerning the adoption. She read this provision before she signed it. By making provision to waive any and all notice of adoption proceedings, the consent form notified the natural mother that there would be further proceedings concerning the adoption. The fact that she did not know the time frame in which the hearings or proceedings would be had does not negate her effective waiver of notice.
The trial judge did not err in refusing to set aside the decree.
Affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Stephen Fred Weingartner appeals from the district court’s decision that child support payments which had become due and payable to his former wife, Lea Ann Michels, before her current husband adopted the child were not canceled as a result of the adoption. The Court of Appeals affirmed the district court in Michels v. Weingartner, 18 Kan. App. 2d 168, 848 P.2d 1010 (1993). Weingartner’s petition for review was granted by this court.
On September 30, 1977, Lea Ann Michels was granted a divorce from Stephen Fred Weingartner in case No. D-166-77 in the district court of Lyon County. Michels was given custody of their one-year-old son, Stephen Ronald Weingartner. Weingart-ner was ordered to pay $150 per month “as support for the minor child of the parties.”
In April 1986, Lea Ann Michels married her current husband, Greg A. Michels. In March 1990, he petitioned the district court in Lyon County to permit him to adopt Stephen Ronald Wein-gartner. Greg Michels alleged that Stephen Fred Weingartner’s consent was
“not necessary for the reason that, except for an incidental contribution of $50.00 on November 18, 1988, Stephen Fred Weingartner (father) has failed to assume the duties of a parent for two consecutive years. In support thereof, the Petitioner shows to the Court that the natural father has: 1) refused to pay child support; 2) failed to pay any medical or dental expenses of the minor child; 3) made no telephone contact with the minor child, except in November of 1988, when the minor child called his father and was told ‘Don’t call me again’; 4) not sent gifts to the minor child; 5) not sent cards or other written correspondence to the minor child; 6) not given money to the minor child; 7) not had any personal contacts with the minor child; and 8) made no inquiries about the child’s health or education.”
The adoption was granted and a decree of adoption was filed in the district court on May 29, 1990.
Weingartner concedes that since June 1986 he has made no regular payments and only one incidental payment of $50 to Michels for child support. Michels claims that the arrearage totals $6,400, and she seeks that amount plus interest.
In October 1991, Lea Ann Michels filed in case No. D-166-77 a Motion for Judgment and Order to Examine Defendant, Stephen Weingartner. At that time she sought judgment against him for one-half the medical expenses incurred for the boy from September 1986 through February 1990. When Michels filed a notice of hearing of the motion, she included “the determination [of] delinquent child support” as a subject for the proceeding.
Following the hearing, the district court judge signed a journal entry, which was filed on April 1, 1992. With regard to delinquent child support, the district court took “judicial notice of the adoption case file numbered 90-A-06” and concluded that “[t]he child support judgments accruing prior to the date of the adoption are enforceable.”
The district court also stated that it rejected Weingartner’s estoppel theory. His estoppel theory, in a nutshell, is:
“Having secured valuable rights from her adversary, [Michels] then took it upon herself to try to enforce the monetary obligations that she relied upon as a basis to get those rights. . . . [She] repudiated the action of the adoption court in determining that Mr. Weingartner’s consent was unnecessary and tried to collect the sums just as she could have done before, but without the possibility of waiving his right to consent.”
Weingartner appeals, asserting that a natural parent whose parental rights and obligations are terminated by the adoption of that child is relieved of the obligation to malee child support payments that accrued before the adoption. He contends that the boy’s adoption by Greg Michels severed his parental rights and relieved him of all duties and obligations to the child. He relied on State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 804 P.2d 961 (1991), for support of his contention before the district court and the Court of Appeals.
The Court of Appeals discussed Clear and quoted it for the principle that the severance of parental rights relieves duties and obligations. 18 Kan. App. 2d at 170-71. Following its discussion of Clear, the Court of Appeals expressly embraced the rationale of Hopkins v. Yarbrough, 168 W. Va. 480, 284 S.E.2d 907 (1981). 18 Kan. App. 2d at 172.
In Clear, the mother, Barbara Clear, was divorced from Steven Clear in 1978, and she was awarded custody of their children. He was ordered to pay $200 per month for child support, but paid only $50 between 1978 and 1986. In 1986 the children were determined to be children in need of care and were placed in the custody of their grandmother, who received AFDC payments as a result. “In January of 1989, SRS filed a petition pursuant to K.S.A. 39-755 seeking reimbursement from Barbara Clear for the money paid to [the grandmother] in AFDC payments since 1986.” 248 Kan. at 111. At the hearing in April 1989, the district court found that “under K.S.A. 1989 Supp. 39-718b, Clear owed SRS $3,904 for unreimbursed assistance paid to the maternal grandmother by SRS for the support of the minor children since 1986.” 248 Kan. at 111.
Also at the hearing, Clear executed a written consent form to relinquish and surrender her children to SRS. The district court granted her request to relinquish her parental rights. 248 Kan. at 111. At the hearing,
“SHS did not object to the district court’s granting Clear’s voluntary relinquishment of her parental rights, but only objected to the district court’s finding that, after a voluntary relinquishment of her parental rights, Clear was not liable to reimburse SRS for any assistance expended on the children after the relinquishment.” (Emphasis added.) 248 Kan. at 111-12.
SRS’s position was that despite relinquishment of parental rights, as long as SRS was obligated to support the children, the parent would be obligated as well. 248 Kan. at 112. It was SRS’s advocacy of an obligation which would continue after the relinquishment which was at issue and which the district court and this court rejected. The Court of Appeals did not distinguish Clear, nor did it find Clear to be controlling. Instead, it seems either to have been uncertain of the scope of Clear or to have rejected what it believed the rule of Clear to be in favor of the rule of the foreign cases. The uncertainty apparently was based on the following language quoted by the Court of Appeals:
“ ‘Our adoption statutes contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The natural parent is relieved of all duties and obligations to the child. . . .
“ ‘. . . A person who has relinquished parental rights through adoption, a voluntary termination of parental rights, or an involuntary severance of parental rights is no longer a parent. These statutory procedures contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The parent whose rights have been severed is relieved of all duties and obligations to the child.
“ ‘The effect of a voluntary termination is to confer upon SRS the legal consequences, obligations, and incidents that arise out of the status of parent of the child. Clear is no longer a parent and is not liable under K.S.A. 1989 Supp. 39-718b to repay SRS for any services or assistance expended on the children’s behalf.’ 248 Kan. at 117. (Emphasis added.)” 18 Kan. App. 2d at 171.
The emphasis added by the Court of Appeals seems to suggest that the Court of Appeals believed that the relinquishment extinguished Clear’s obligation to reimburse the assistance paid by SRS both before and after April 1989. We note that Weingartner relies on the above-quoted language for support of his contention that his obligation to pay past due support terminated at the time of the adoption.
Weingartner’s reliance upon Clear is misplaced. The above-quoted language from Clear does not support his position. Clear’s liability for the assistance paid by SRS prior to relinquishment was not an issue on appeal. There was no cross-appeal by Clear from the district court’s determination that she owed $3,904 for assistance paid before the April 1989 relinquishment. At issue in Clear were the AFDC payments which were made following the relinquishment by Barbara Clear of her children. Clear does not speak to the child support obligations accruing prior to the termination of parental rights and, therefore, is compatible with the Court of Appeals’ holding in the present case.
Cases from other jurisdictions, including those considered by the Court of Appeals, which have come to the attention of the court are unanimous in holding that past due child support payments are not extinguished by an adoption decree. The cases discussed by the Court of Appeals are C. v. R., 169 N.J. Super. 168, 404 A.2d 366 (1979); and Hopkins v. Yarbrough, 168 W. Va. 480. Some cases not discussed by the Court of Appeals include In re Marriage of Murray, 790 P.2d 868 (Colo. App. 1989); Stambaugh v. Child Support Admin., 323 Md. 106, 591 A.2d 501 (1991); and Napier v. Kilgore, 284 S.C. 313, 326 S.E.2d 171 (1985).
In Hopkins, the natural father’s child support payments were in arrears at the time the children were adopted by the stepfather. 168 W. Va. at 481. When the mother sought, after the adoption, an order which would require the father to make the payments that had accrued before the adoption, the tidal court ruled against her on the ground that the father had been relieved of his obligations. 168 W. Va. at 482. The mother appealed, and the court stated what was at issue:
“The appellant is not seeking in this action to require the appellee to pay child support for any period of time subsequent to the July 2, 1979, adoption of her two children. Rather, the appellant contends that the Circuit Court of Cabell County was without authority to alter or cancel the liability of the appellee for unpaid child support payments which accrued prior to the adoption.” 168 W. Va. at 482.
The West Virginia court stated that pertinent statutes “do not expressly answer the question concerning the [father’s] liability for child support arrearages which accrued prior to the adoption.” 168 W. Va. at 484. A review of West Virginia cases on related issues and of C. v. R. led the court to conclude that “[t]he adoption had no effect upon the previously accrued arrearages.” 168 W. Va. at 487. The holding of the court was stated as follows:
“[I]n the absence of fraud or other judicially cognizable and harmful circumstance in the procurement of a decree for child support, a circuit court is without authority to modify or cancel arrearages of a former husband’s child support payments, which payments accrued prior to the date of the adoption of such children by the wife’s subsequent husband.” 168 W. Va. at 487.
As to Hopkins, the Court of Appeals observed:
“As in West Virginia, child support payments in Kansas vest as they accrue because they become final judgments on the dates they become due and unpaid. Brieger v. Brieger, 197 Kan. 756, Syl. ¶ 2, 421 P.2d 1 (1966). We believe the reasoning of the West Virginia case and any like decisions is persuasive.” 18 Kan. App. 2d at 172.
We concur with the Court of Appeals’ observation. We agree with the Court of Appeals that the decree of adoption did not relieve Weingartner of his obligation to pay the child support due and owing at the time of the adoption. Child support ar-rearages which have been reduced to judgment are not extinguished or canceled by the termination of parental rights.
We next consider Weingartner’s estoppel argument. The Court of Appeals minimized the significance of his estoppel argument and termed it “ineffectual.” 18 Kan. App. 2d at 172. The Court of Appeals stated:
“[S]even other grounds were also alleged to demonstrate defendant’s failure to assume parental duties for two consecutive years preceding the adoption petition. When the district court found defendant’s consent unnecessary due to failure to assume parental duties for two years, the court did not rest this finding on any specific allegation in the petition. Thus, the finding that defendant’s consent was unnecessary does not negate plaintiff’s attempt to collect the unpaid child support. Plaintiff is not estopped from seeking the past due payments.” 18 Kan. App. 2d at 172.
Weingartner argues that being required to make the child support payments is unfair. His failure to make the payments undoubtedly was a principal ground for the court’s granting the adoption without consent. Although we find some merit in his argument, there are factors which support the rejection of his argument by the district court and the Court of Appeals. For one, Weingartner does not contend that he was unaware of the adoption proceeding. He concedes that he was properly served with notice. Thus, he was given the opportunity to contest the adoption and to dispute the allegations of his failure to assume parental duties, but he remained silent. It may also be noted that when opposing Lea Ann Michels’ attempt to recover half of the boy’s medical expenses, Weingartner used this same estoppel theory but stated that “[t]he basis for alleging abandonment of the child was that he Tailed to pay any medical or dental expenses of the minor child.’ ” Thus, on another occasion Weingartner was urging the court to consider his failure to pay medical expenses to be the principal ground for the consentless adoption. Finally, Michels points out that she was not a party to the adoption proceeding. It is not strictly accurate, therefore, to say that she used his failure to pay to her advantage in the adoption proceeding and now wants to force him to pay.
Weingartner cites Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971), for the proposition that the clean hands doctrine is applicable in this child support action. The fact pattern of Perrenoud is enormously complicated. Eight pages of the opinion are devoted to its recitation. 206 Kan. at 561-68. For our purpose, it is sufficient to say that the Perrenouds married, divorced, remarried, redivorced, disputed custody of their children, married, divorced, and remarried other people in a number of states. The dispositive issues on appeal included jurisdiction, conflict of laws, and recognition of foreign decrees.
Weingartner quotes the following language from Perrenoud: “A party cannot invoke jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court at his whim and caprice.” 206 Kan. 559, Syl. ¶ 4. The reference is to the parent going from one state to another relitigating issues which had been resolved in another jurisdiction, but not to his or her liking. There are no comparable facts in the present case. There is another syllabus paragraph from Perrenoud which is more relevant than the one quoted by Weingartner. It states: “The ‘clean hands’ doctrine, as applied in a child custody case, is an equitable one, is not an absolute, and is to be applied or not applied at the court’s discretion in each particular case.” 206 Kan. 559, Syl. ¶ 13. We cannot say that the district court abused its discretion in finding that Michels is not estopped from collecting past due child support payments.
The judgments of the Court of Appeals and the district court are affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
This case is pending in the United States District Court for the District of Kansas. It comes before this court on three questions certified by the United States District Court pursuant to K.S.A. 60-3201 et seq. With the certified questions, the United States District Court in its memorandum and order has provided us with a factual background and summary of the legal issues presented. In order to focus upon the questions in context, we set forth verbatim the order received:
“Pursuant to K.S.A. 60-3201 et seq., this court hereby certifies to the Kansas Supreme Court the following questions of Kansas law which are deemed to be determinative of this action and as to which no controlling precedent exists in the decisions of the Kansas Supreme Court or the Kansas Court of Appeals:
(1) Where electronic debit items are involved, do the National Automated Clearing House Rules (‘NACHA Rules’) and Operating Letter No. 12 of the Federal Reserve Bank of Kansas City (‘Operating Letter’) modify the provisions of Article IV of the Kansas Uniform Commercial Code as they relate to the presentment and return of automated clearing house (‘ACH’) items?
(2) If so, are the NACHA Rules and Operating Letter applicable to a dispute between a bank that receives an ACH credit item and the parly initiating that item where the initiating party is not a financial institution and is not a party to the NACHA Rules or Operating Letter?
(3) If the NACHA Rules and Operating Letter are applicable to a dispute between these parties, is the measure of damages the face amount of the debit item under K.S.A. 84-4-302(a), or the actual damages directly attributable to the late return of the item under K.S.A. 84-4-103(e)?
The applicability of NACHA Rules and a Federal Reserve Operating Letter to a dispute between a payee and a payor bank is a question of first impression in Kansas. Neither the Kansas Supreme Court nor the Kansas Court of Appeals has resolved this issue. Therefore, the determination of whether, under Article IV of the Kansas Uniform Commercial Code, the rules and operating letter will govern a dispute between these parties is proper for certification from the United States District Court for the District of Kansas to the Kansas Supreme Court pursuant to K.S.A. 60-3201.
“I. Factual Background
“The facts relevant to the issues herein certified to the Kansas Supreme Court are as follows: “This case comes before the United States District Court for the District of Kansas pursuant to diversity jurisdiction, 28 U.S.C. § 1332, and concerns the allegedly untimely return of four electronic debit items from a payor bank to the initiating party. Plaintiff Sinclair Oil Corporation (‘Sinclair’) is a Wyoming corporation which maintained a business relationship with Home Oil Company (‘Home Oil’), a Kansas distributor of its products. Sinclair was in the practice of making electronic debits to Home Oil’s account at defendant Sylvan State Bank (‘Sylvan’) for invoices due for products delivered to Home Oil.
“From July 20, 1990 through July 27, 1990, Sinclair electronically debited Home Oil’s account at Sylvan State Bank four times, totalling $240,893.64. Sylvan, however, returned the items because of insufficient funds in the Home Oil account. Plaintiff Sinclair Oil alleges that defendant Sylvan State Bank failed to make a timely return of the debit items, either electronically or through another means by which they would be actually received by the Federal Reserve Bank of Kansas City no later than the Federal Reserve’s cutoff hour of 2 p.m. on the banking day following Sylvan’s receipt of the items (or the settlement date for the items.) This deadline for returning items is set by the Federal Reserve Operating Letter and NACHA Rules.
“Under Article IV of the Kansas Uniform Commercial Code, a payor bank may dishonor an item if it returns the item or sends written notice of dishonor before its ‘midnight deadline,’ or midnight on the next banking day following the banking day on which it receives the item. K.S.A. 84-4-301; 84-4-104(a)(10). Sylvan returned the debit items by regular mail rather than electronic mail in time to meet the ‘midnight deadline,’ but the items did not reach the Federal Reserve Bank of Kansas City by 2 p.m. on the banking day following Sylvan’s receipt of the items and thus did not meet the deadline set by the Federal Reserve Operating Letter and NACHA Rules.
“Sinclair Oil brought this lawsuit on July 22, 1991, claiming that Sylvan’s failure to return the debit items in a manner by which the Federal Reserve Bank in Kansas City would receive them by the deadline set by the Operating Letter and NACHA Rules makes Sylvan liable under K.S.A. 84-4-302 for tire face amount of the items. Together, the debit items totaled $240,893.64.
“II Summary of the Legal Issues Presented
“Under Article IV of the Kansas Uniform Commercial Code, agreements may be made to modify the provisions of Article IV. K.S.A. 84-4-103(a). Federal Reserve regulations and operating circulars, as well as clearing house rules ‘have the effect of agreements . . ., whether or not specifically assented to by all parties interested in items handled.’ K.S.A. 84-4-103(b). The parties in this case disagree as to the effect of National Automated Clearing House Rules and Operating Letter No. 12 of the Federal Reserve Bank of Kansas City on Article IV’s provision that an item received through a clearing house is returned ‘when it is delivered to the presenting or last collecting bank or to the clearing house or is sent or delivered in accordance with its rules.’ K.S.A. 84-4-301(d)(l).
“Specifically, plaintiff argues that the 1990 NACHA Rules (which were in effect at the time of the events relevant to this case) provide specific instructions governing the return of items in the amount of $2,500 or more which modify Article IV. The NACHA Rules provide that:
‘Each returned debit entry in the amount of $2,500 or more shall be deposited with the RDFI’s [receiving depository financial institution, here Sylvan] ACH in accordance with the deposit deadlines established by that ACH for night cycle processing, on the banking day following the banking day of receipt by the RDFI or following settlement date, whichever is later.’
NACHA 1990 Operating Rules, § 5.1.2.
“Plaintiff contends that the use of the word ‘deposit’ means that the automated clearing house must have received a returned item by the midnight deadline. Plaintiff further contends that this interpretation of the word ‘deposit’ is appropriate when one considers that the word ‘deposit’ is used instead of the word ‘send,’ which is defined in the Operating Rules to mean ‘to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transportation provided for and properly addressed.’ 1990 NACHA Operating Rules, § 14.1.28.
“In support of its interpretation, plaintiff notes that Federal Reserve Operating Letter No. 12 also provides that:
‘a receiver must return a debit item in an amount of $2,500.00 or more received from or through [the federal reserve bank] by returning the item in the manner provided in the applicable ACH rules by the special closing times for such return item set forth in the Reserve Bank’s time schedule. The receiver is accountable for the amount of such an item if it is not received by the Reserve Bank by such special closing times.’
Operating Letter No. 12, ¶ 34.
Plaintiff notes that under the Operating Letter, the receiving bank will be held liable for the amount of the item if it is not received by the Reserve bank within the time period specified. Here, the deadline specified was 2 p.m. on the banking day following Sylvan’s receipt of the items.
“Thus, according to plaintiff, Article IV, when read in conjunction with the pertinent provisions of the NACHA 1990 Operating Rules and Operating Letter No. 12 of the Federal Reserve Bank, requires that a reserve bank receive a return of a debit item of $2,500 or more by the reserve bank’s special closing time for the banking day following the banking day of receipt by the receiving bank, or following settlement date, whichever is later. Pursuant to K.S.A. 84-4-302, plaintiff argues that if the reserve bank does not receive the item within the prescribed time frame, the receiving bank will be held accountable to the item’s payee for the amount of the item. Under the facts of the present case, then, defendant Sylvan would be liable to Plaintiff Sinclair for the face amount of each of the four debit items at issue.
“Defendant, on the other hand, argues that Sinclair can only recover against Sylvan if it can avail itself of the NACPIA Rules or Federal Reserve Operating Letter No. 12 and prove a violation thereunder. If Sinclair is unable to avail itself of the NACHA Rules and Operating Letter, it can prove no violation of K.S.A. 84-4-302 itself because Sylvan did return the debit items by the ‘midnight deadline’ set forth in K.S.A. 84-4-104(a)(10). According to defendant, therefore, the primary issue in this case is whether Sinclair can use the NACHA Rules and Operating Letter No. 12 to its advantage. Sylvan asserts that Sinclair cannot use the NACHA Rules and Operating Letter No. 12 because they are only applicable to disputes between financial institutions and Sinclair is not a financial institution.
"The 1990 NACHA Rules define ‘Originating Depository Financial Institution’ (ODFI) as:
‘[a] Participating Depository Financial Institution is an ODFI with respect to entries (1) it transmits directly or indirectly to its ACPI for transmittal to a RDFI, and (2) on which it is designated as the ODFI . . .’
1990 NACHA Rules, § 14.1.17.
Further, the 1990 NACHA Rules define ‘Participating Depository Financial Institution’ as:
‘a financial institution that (1) is authorized by law to accept deposits, (2) has been assigned a Transit Routing Number by the Rand McNally Corporation, and (3) has agreed to be bound by these rules as in effect from time to time. A Participating DFI of an Association is a Participating DFI which is a member of such Association or authorized by such Association to transmit entries and receive entries from an ACPI. Only Participating DFIs may act as ODFIs or RDFIs.’
1990 NACHA Rules, § 14.1.19.
According to defendant, Sinclair, which is a corporation, fits into the definition category ‘Organization.’ 1990 NACPIA Rules, § 14.1.15, or ‘Originator,’ 1990 NACHA Rules, § 14.1.18, but does not fall within any definition of a financial institution. The NACHA Rules only discuss settlement and accountability among participating financial institutions.
“Further, defendant contends that the Federal Reserve Operating Letter No. 12 relied upon by plaintiff is only applicable to depository institutions defined therein, and that Sinclair does not fit within the defined terms of the Operating Letter. Specifically, plaintiff does not fit within the definition of ‘originator’ as defined in Operating Letter No. 12, ¶ 3(t), ‘receiver’ as defined in Operating Letter No. 12, ¶ 3(x), or ‘depository institution’ as defined in Operating Letter No. 12, ¶ 3(Ir).
“Although Sinclair has argued that K.S.A. 84-4-103’s provision for modification by agreement makes the NACHA Rules and Operating Letter applicable to the present dispute, defendant contends that the 1983 Kansas Comment to K.S.A. 84-4-103 suggests that operating letters, clearing house rules, and the like are applicable only to disputes between financial institutions. The comment to K.S.A. 84-4-103 provides that:
‘This is the important section which allows the rules of Article 4 to be varied by agreement, whether between bank and depositor (i.e. the signature card and deposit agreement) or among banks in the collection process (i.e. Federal Reserve operating circulars and clearing house rules).’
Defendant further contends that two Kansas Supreme Court cases also suggest that operating letters and clearing house rules are applicable only between banks. See Chilson v. Capital Bank of Miami, 237 Kan. 442, 447, 701 P.2d 903 (1985) (the Rules under Article 4 of the UCC may be varied by agreement, whether between bank and depositor or among banks in the collection process); Citizens State Bank v. Martin, 227 Kan. 580, 584, 609 P.2d 670 (1980) ('The Code . . . provides for variation of Article 4 by agreement, and thus recognizes the applicability of clearing house rules by which member banks are bound.’).
“Defendant further notes that 10 Am. Jur. 2d Banks § 839, p. 808, states that ‘the rules and usages of a clearing house are binding only on the clearing house and its members; they have no bearing on the rights and liabilities of third persons dealing with the constituent bank, or of third parties generally.’
“In the alternative, defendant argues that even if plaintiff is able to avail itself of the NACHA Rules and Operating Letter, plaintiff should still be unable to recover against the bank because the words ‘deposit’ and ‘send’ are synonymous as used in the NACPIA Rules. Defendant argues that it fulfilled its obligations by ‘depositing’ the debits in the mail prior to its ‘midnight deadline.’
“Finally, defendant argues that there is no law to support plaintiffs argument that ‘accountable’ as used in the Operating Letter means that the receiving bank will be liable to the payee of an item for the face amount of the item. Defendant argues that the Operating Letter indicates liability will be between banks in the collection process only.
“Defendant also notes that several courts have held that the correct measure of damages to a payee for a payor bank’s failure to comply with a Federal Reserve operating letter requiring wire notice of dishonor would be damages from the bank’s failure to exercise ordinary care in handling an item. See Whalen & Sons Grain Co. v. Missouri Delta Bank, 496 F. Supp. 211 (E.D. Mo. 1980); Colorado Nat’l Bank v. First Nat’l Bank & Trust, 459 F. Supp. 1366 (W.D. Mich. 1978); Yeiser v. Bank of Adamsville 614 S.W.2d 338 (Tenn. 1981); see also Bank of Wyandotte v. Woodrow, 394 F. Supp. 550 (W.D. Mo. 1975); Annotation, Payor Bank Accountability- — -Prompt Action, 22 A.L.R.4th 10. Under these cases, defendant argues that compliance with a Federal Reserve Operating Letter constitutes evidence of ordinary care, and a payee could only recover against the payor bank if it could show a reasonable chance of collection of the debits had the bank exercised that ordinary care. See also K.S.A. 84-4-103(e).”
The questions posed assume that Article 4 of the Kansas Uniform Commercial Code (UCC) applies to electronic fund transfers such as those between Sinclair and its bank and Home Oil and its bank. For the reasons set forth below, we conclude that Article 4 of the Kansas UCC does not apply to the transactions in question. The answer to the first question is, therefore, no. The answers to questions 2 and 3 are dependent upon an affirmative answer to question 1. We- therefore do not answer questions 2 and 3.
The question whether the UCC applies to electronic fund transfers (EFTs) has not been addressed in Kansas. Other jurisdictions dealing with this same question have concluded, however, that the UCC does not apply. Bradford Trust Co. v. Tex.-American Bank-Houston, 790 F.2d 407, 409 (5th Cir. 1986); Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 955 (7th Cir 1982); Delbrueck & Co. v. Mfrs. Hanover Trust Co., 609 F.2d 1047, 1051 (2d Cir. 1979); Walker v. Texas Commerce Bank, N.A., 635 F. Supp. 678, 681 (S.D. Tex. 1986); Weeks Office Products, Inc. v. Chemical Bank, 180 App. Div. 2d 419, 579 N.Y.S.2d 86 (1992). See also Gatoil, Inc. v. Forest Hill State Bank, 1 UCC Rptg. Serv. 2d 171, 182 (D. Md. 1986) (noting that two circuits have held Article 4 does not apply to EFTs but that even if it did apply the result would be the same). With the exception of courts that have applied the UCC by way of analogy, our research has not disclosed a single case that has found that the UCC applies to EFTs.
Numerous commentators also have concluded that the UCC does not apply to EFTs. Vergari and Shue, Checks, Payments, and Electronic Banking, p. 495 (1986) (applying Article 4 will raise as many questions as it answers); Fel'senfeld, Legal Aspects of Electronic Transfer of Funds, pp. 130, 135 (1988) (every major court decision has held that Article 4 does not apply to EFT controversies); 1 White & Summers, Uniform Commercial Code, pp. 810-11 (3d ed. 1988) (most courts that have addressed the issue have determined that the UCC was not designed to handle problems arising from EFTs and have not applied the UCC to such controversies).
The substantive rationales that courts have expressed for excluding EFTs from UCC coverage include: (1) electronic debits are not “items” within the meaning of Article 4, Gatoil, Inc., 1 UCC Rptg. Serv. at 182; (2) the UCC “does not specifically address the problems of electronic fund transfers,” Delbrueck & Co., 609 F.2d at 1051; and (3) the UCC drafters never contemplated electronic transactions when developing the Code, Evra Corp., 673 F.2d 951, 955.
We conclude that Article 4 of the Kansas UCC does not cover electronic fund transfer debit transactions such as are involved in the questions submitted. First, EFTs do not appear to be “items” within the meaning of the Kansas UCC. Article 4 of the Kansas UCC applies only to “items,” which are to be writings. The pertinent UCC provisions all apply to “items.” K.S.A. 84-4-213 (final payment of an item by payor bank); K.S.A. 84-4-301 (recovery of payment by return of items; dishonor of items); and K.S.A. 84-4-302 (payor bank’s responsibility for late return of items). The UCC defined “item” as “any instrument for the payment of money even though it is not negotiable but does not include money.” K.S.A. 84-4-104(1). Article 4 now incorporates the K.S.A. 1993 Supp. 84-3-104 definition of “instrument,” K.S.A. 1993 Supp. 84-4-104(c), but did not specifically incorporate that definition in 1990. As we consider the definition of “instrument,” it appears to include only writings. “Instrument” was- defined as “negotiable instrument.” K.S.A. 84-3-102(l)(e). “Negotiable instrument,” in turn, was defined as “any writing” that was signed by the maker, containing an unconditional promise to pay a sum certain payable on demand or at a definite time to order or to bearer. K.S.A. 84-3-104. The 1990 statute went on to identify the writings that complied with the section to include drafts, checks, certificates of deposit, and notes. An EFT is not a writing and is not within the specific list of writings that are “instruments.” In the absence of legislative action, we conclude that an EFT is not an “item” within the meaning of Article 4.
Second, in an attempt to adopt a ■ comprehensive body of law that defines the rights and obligations that arise from wire transfers, the Kansas Legislature recently adopted Article 4A of the UCC. L. 1990, ch. 367, codified at K.S.A. 1993 Supp. 84-4a-101 et seq. However, Article 4A applies to “credit transfers,” not “debit transfers.” Transfers are divided into two categories determined by whether the instruction to pay is given by the person making payment or the person receiving payment. If the instruction is given by the person making the payment, the transfer is commonly referred to as a “credit transfer.” If the instruction is given by the person receiving payment as it was in this case, the transfer is commonly referred to as a “debit transfer.” Thus, even this most recent enactment would not apply to the transactions, not only because it was enacted after the date of these transactions but also because Article 4A specifically excludes debit transfers.
White and Summers point out that the very nature of debit transfers, even by analogy, makes application of Article 4 troublesome:
“[T]jhe typical electronic fund transfer is backwards when compared with the typical paper order via check. In a check transaction the drawer draws the check, gives it to the payee, who passes it to the collecting bank and thence to the payor. In electronic fund transfers, the drawer deals first with the drawee/payor and only then does the message go to some intermediary . . . and finally to the payee. In the EFT case, the agent . . . follows the payor — comes between the payor and payee. In the check case the payor is at the end of the transaction and has the last chance to determine whether to pay.” 1 White & Summers, Uniform Commercial Code, p. 811.
Carl Felsenfeld in Legal Aspects of Electronic Funds Transfers, p. 130, notes:
“Courts have used Article 4 of the UCC to suggest analogies that can lead to an appropriate EFT case law position. But so far, every major court decision has held that the rights and liabilities of parties to wire transfer transactions were not governed by Article 4. The rulings derived from the courts’ belief that electronic fund transfers were not in the contemplation of the Article 4 drafters. The belief is unquestionably correct. Article 4 is a direct outgrowth of the American Bankers Association Bank Collection Code, drafted in the early 1920s to govern check collection.”
The ideas in Articles 3 and 4 of the UCC, as pointed out by White and Summers, depend upon bankers looking at particular words and numerals on the face of a particular instrument. In the case of EFTs, the medium of communication is the computer and the computer message. 1 White & Summers, Uniform Commercial Code, p. 811.
The argument is made that in Kansas we have previously determined in Citizens State Bank v. Martin, 227 Kan. 580, 584- 86, 609 P.2d 670 (1980), that Article 4 of the Uniform Commercial Code, K.S.A. 84-4-101 et seq., governs bank deposits and collections. According to the argument, Citizens supports the contention that the UCC, through K.S.A. 1993 Supp. 84-4-103, calls for the application of the National Automated Clearing House Association (NACHA) Rules and Operating Letter No. 12 of the Federal Reserve Bank of Kansas City to the presentment and return of automated clearing house items in this case. Our holding in Citizens, sound as it may be, has no application to the transactions involved in the certified questions to this court.
Finally, an argument is made that the NACHA Rules incorporate the provisions of Article 4 of the Kansas UCC and therefore Article 4 applies to the transactions in question. If the NACHA rules apply, the resolution of the controversy is for the federal court. The questions presented to this court do not permit us to answer this contention. | [
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The opinion of the court was delivered by.
Abbott, J.:
Plaintiff Orrin J. Fowles alleges he purchased the winning ticket in the July 20, 1988, Kansas Cash Lotto drawing. Kansas Lottery refused to pay Fowles the prize of $117,037.00 because he failed to produce the winning ticket. Fowles brought suit against numerous Lottery defendants. The trial court granted defendants’ motion for summary judgment, and plaintiff appealed. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
Orrin J. Fowles alleges that on July 17, 1988, at approximately 1:35 p.m. he purchased a Kansas Cash Lotto ticket for $1 from Pennie Cranmer, an employee of the Short Stop Convenience Store, which is an authorized Kansas Lottery retailer in Clay Center. Ms. Cranmer is also plaintiff’s daughter. Plaintiff asked Pennie Cranmer to hold the ticket for him and check the winning numbers for the next drawing (July 20, 1988) because he was going to be out of town. Ms. Cranmer agreed. Ms. Cranmer wrote plaintiff’s name on the front of the ticket and placed it in a basket under the counter at the convenience store. Both plaintiff and Ms. Cranmer have signed sworn affidavits concerning these events.
On July 18, 1988, Ms. Cranmer remembered the ticket she had agreed to hold for her father and realized the ticket was not in her purse. On July 19, 1988, Ms. Cranmer’s husband went to the Short Stop to search for plaintiff’s ticket but was unable to find it. Ms. Cranmer also searched for the ticket at the Short Stop on July 21, 1988, but was unable to find it. The ticket has never been located.
The only ticket matching the winning combination of numbers selected at the Kansas Cash Lotto drawing on July 20, 1988, was determined to have been sold at the Short Stop Convenience Store in Clay Center on July 17, 1988, at 1:35 p.m. This ticket was a $2 purchase. Plaintiff contends that the winning ticket matching all six numbers was the one he purchased from Ms. Cranmer for $1.
On June 28, 1989, plaintiff submitted a claim to the Joint Committee on Special Claims Against the State against the Kansas Lottery for $117,037 based on his alleged purchase of the winning lottery ticket for the July 20, 1988, drawing. On June 30, 1989, plaintiff submitted a letter to the Kansas Lottery to claim payment of his winning ticket. On July 14, 1989, Carl M. Anderson, an Assistant Attorney General representing the Kansas Lottery, notified plaintiff by certified mail that the Lottery Commission would not pay his claim unless his winning ticket and a completed claim form were presented by July 16, 1989. The Kansas Lottery also notified the Joint Committee that it would refuse payment unless plaintiff presented the winning ticket by July 16, 1989. The Kansas Legislature did appropriate the $117,037 for plaintiff’s claim, but the Governor vetoed the appropriation.
Plaintiff initiated this action in the Shawnee County District Court against the State of Kansas, the Kansas State Lottery, and the Kansas State Lottery Commission on July 12, 1991, based on bis alleged purchase of the winning Kansas Cash Lotto ticket for the July 20, 1988, drawing. Plaintiff contended that he fulfilled his contractual obligation by paying consideration to obtain the lottery ticket and by submitting the winning ticket to an authorized retailer for validation and that responsibility for the lost ticket lies with the Lottery through its agent, the retailer which accepted the ticket for validation. Plaintiff further contended that defendants’ breach of contract entitled him to payment of the $117,037 plus interest.
In their answer, defendants contended that the winning ticket for the July 20, 1988, drawing was a $2 purchase rather than a $1 purchase. Defendants denied that plaintiff submitted a winning ticket for validation or that plaintiff was the “holder” of the winning ticket. Defendants also asserted affirmative defenses, including failure to state a claim and lack of jurisdiction.
Defendants also filed a third-party claim against Leiszler Oil Company, seeking indemnification and alleging that the plaintiff’s damages were the direct and proximate result of the negligence of Leiszler Oil and/or its employee, Pennie Cranmer. Leiszler Oil is the owner of the Short Stop Convenience Store. Leiszler Oil, in turn, filed a third-party claim against Pennie Cranmer, alleging that Ms. Cranmer was acting in her capacity as plaintiff’s daughter and not as Leiszler Oil’s employee when she retained plaintiff’s lottery ticket on July 17, 1988, arid that, because Ms. Cranmer was acting outside the scope of her employment, she was liable for any damages Leiszler was required to pay.
The district judge granted summary judgment for the defendants, finding that plaintiff’s complaint failed to state a claim upon which relief could be granted. The court held that plaintiff was required to follow the Lottery Act and the rules and regulations of the Lottery and that plaintiff was not entitled to payment of the jackpot lottery prize because of his failure to comply with the statutes and the rules and regulations. The third-party claims filed by defendants and by Leiszler Oil were dismissed, subject to reinstatement should plaintiff prevail on his appeal.
On the back side of each Kansas Cash Lotto ticket is information concerning the claiming of prizes. Each ticket states:
“This ticket is a bearer instrument. Anyone eighteen and over possessing a winning ticket may claim the prize. Valid only for the date(s) shown. Winners must claim prize within 365 days from the drawing. All determinations of winners are subject to Kansas Lottery rules and regulations.
“To Claim The Prize: Present winning ticket to any Kansas On-line Retailer for processing.
“Important Notice: This ticket is the only proof of play(s). Make sure the numbers on the other side are the ones you chose. THIS TICKET IS VOID IF ALTERED.”
Each ticket also has a place for the claimant to sign his or her name and address and for the retailer to fill in its retail number.
K.S.A. 74-8720(b) authorizes payment of prizes for winning lottery tickets “to one natural person who is adjudged by the executive director ... to be the holder of such winning ticket or share.” K.S.A. 74-8720(c) states that “[t]he executive director shall award the designated prize to the holder of the ticket or share upon the validation of a claim or confirmation of a winning share.” The Kansas Lottery Commission, created by K.S.A. 74-8709, is authorized to adopt rules and regulations concerning the operation of the lottery, including the manner of payment of prizes to the holders of winning tickets. K.S.A. 74-8710. The primary controversy here centers on the determination of who is a “holder” of a winning ticket.
The Lottery Commission has adopted temporary rules and regulations. These have been published in the Kansas Register. The Lottery has- never adopted permanent rules and regulations. Whether the Lottery’s rules and regulations are temporary or permanent does not affect this litigation. Plaintiff’s assertion that the temporary rules and regulations expire 120 days after adoption based on K.S.A. 77-422 is inaccurate because K.S.A. 74-8710 exempts the Lottery’s temporary rules and regulations from the requirements of K.S.A. 77-415 et seq.
The temporary rules and regulations for the Kansas Lottery published in the Kansas Register provide that “[t]o be a valid ticket and eligible to receive a prize, a Cash Lotto ticket shall satisfy all the requirements established by the Kansas Lottery for validation of winning tickets.” K.A.R. 111-7-8 (7 Kan. Reg. 1193 [1988]). A validated ticket is the only proof of play, and submission of a winning ticket is the only way to claim a prize. K.A.R. Ill- 7-3(c) (7 Kan. Reg. 1192 [1988]). To validate a winning on-line ticket, the following requirements must be met:
“1) All printing on the ticket shall be present in its entirety, be legible, and correspond, using the computer validation file, to the combination and the date printed on the ticket.
“2) The ticket shall be intact.
“3) The ticket shall not be mutilated, altered or tampered with in any manner.” K.A.R. lll-6-7(a) (7 Kan. Reg. 215 [1988]).
If any of these conditions are not met, the ticket is invalid and ineligible for a prize. The executive director of the Lottery makes the final decision on the validity of a winning ticket. K.A.R. 111-6-7(b). The rules and regulations also instruct that an on-line ticket is the only acceptable evidence of the combination of numbers selected. K.A.R. lll-6-l(e) (7 Kan. Reg. 213 [1988]). The Lottery is not responsible for lost tickets. K.A.R. lll-7-10(c) (7 Kan. Reg. 1193-94 [1988]). The procedure for claiming jackpot prizes is to “personally submit the signed ticket and a completed claim form to a Kansas regional or state lottery office.” K.A.R. 111-7-9 (7 Kan. Reg. 1193 [1988]). This procedure does contradict the information on the back of the Kansas Cash Lotto tickets, which instructs the holder of a winning ticket to present the ticket “to any Kansas On-line Retailer for processing.”
Plaintiff’s letter to the Lottery requesting payment of the jackpot prize summarized his claim:
“On July 17, 1988, at approximately 1:30 P.M., I purchased one Quick Pick Kansas Cash Lotteiy ticket for $1.00 from the Short Stop Convenience Store located at 610 Sixth Street, Clay Center, Kansas 67432. I purchased the ticket from my daughter, Penny Cranmer, who was an employee at said convenience store at the time. Because I was going to be out of town at the time of the drawing for which said ticket was purchased, I asked my daughter, Penny Cranmer, to keep the ticket for me and to watch the drawing to be held the following Wednesday. Penny Cranmer wrote my name on the front of said ticket and placed it in a basket near the cash register in said convenience store. That is the last time anyone can remember seeing said Lotteiy ticket that was purchased by me on July 17, 1988, at approximately 1:30 P.M.
“The Kansas Cash Lottery drawing was held the following Wednesday, being July 20, 1988. Kansas Lotteiy authorities told Mr. Jack Haley, manager of said Short Stop Convenience Store, that there had been only one Kansas Cash Lottery ticket sold in Clay Center, Kansas, at 1:35 P.M. on July 17, 1988, and it had been the one sold at said Short Stop Convenience Store. Mr. Haley was informed by Kansas Lottery officials that this was the winning ticket resulting from the Kansas Cash Lottery drawing held on July 20, 1988.
“Since it has been documented by the Kansas Lottery authorities that the winning ticket from the July 20, 1988, Kansas Cash Lottery drawing was purchased in Clay Center, Kansas, at the Short Stop Convenience Store at approximately 1:35 P.M., and since I purchased that ticket, I should be entitled to the prize of $117,037.00 from the Kansas Lottery. There is no doubt that I purchased the winning ticket selected at the July 20, 1988, Kansas Cash Lottery drawing. The fact that said ticket was lost does not change the fact that I purchased the winning ticket selected at the July 20, 1988, Kansas Cash Lottery drawing. I am entitled to the prize of $117,037.00 and I hereby make claim upon the Kansas Lottery for payment of said prize.”
It is clear that plaintiff did not comply with the lottery rules and regulations for presenting his winning ticket to the Lottery. He neither presented it in person to a regional or state lottery office, nor did he present it to a retailer for processing. The executive director and the Lottery Commission determined that plaintiff was not a holder of a winning ticket. The position adopted by the Lottery Commission was that plaintiff must submit his valid winning ticket and a completed claim form to claim his prize. Submission of the ticket and claim form was required to be within one year of the June 20, 1988, drawing. K.A.R. 111-7-9(d).
The term “holder” is not defined in either the Kansas Lottery Act or the temporary rules and regulations enacted by the Lottery Commission. Generally, however, “[t]he holder of a bill of exchange, promissory note, check, or other commercial paper, is the person who has legally acquired possession of the same, by indorsement or delivery, and who is entitled to receive payment of the instrument.” Black’s Law Dictionary 731 (6th ed. 1990). Each lottery ticket clearly states that it is a “bearer instrument.” “Bearer” means “[t]he person in possession of an instrument.” Black’s Law Dictionary 154 (6th ed. 1990). “Ticket bearer” is defined in K.A.R. lll-6-l(i) as “the person who has signed the on-line ticket or who has possession of an unsigned ticket.” Other jurisdictions have held or noted that to be a “holder” of a winning lottery ticket and to have a right to collect the winnings, one must have possession of the ticket. See, e.g., Brown v. California State Lottery Comn., 232 Cal. App. 3d 1335, 284 Cal. Rptr. 108 (1991); Ramirez v. Bureau of State Lottery, 186 Mich. App. 275, 282, 463 N.W.2d 245 (1990), rev. denied 439 Mich. 861 (1991); Karafa v. N.J. State Lottery Comm., 129 N.J. Super. 499, 503, 324 A.2d 97 (1974).
Plaintiff admits that he does not have possession of his ticket, nor did he sign his ticket. He is, therefore, not a ticket bearer or a holder. Plaintiff is not entitled to payment of the lottery prize he seeks.
Plaintiff argues that in enacting K.S.A. 74-8720 the legislature intended that a person in plaintiff’s circumstances be considered a holder. Plaintiff’s sole support for this theory is that the legislature in two separate years voted to pay plaintiff’s claim. Plaintiff ignores that in K.S.A. 74-8720 the legislature gave the executive director of the Lottery or his designee the sole authority to determine who is a holder of a winning ticket. The executive director determined here that plaintiff must submit his winning ticket and a claim form in order to receive payment of the prize, and this determination was within the authority given him by the legislature.
Plaintiff was notified on the back of the ticket he purchased that he was required to follow the rules and regulations of the Lottery and that his ticket was the only proof of play. Plaintiff failed to follow the rules and regulations, and he did not retain his ticket as proof of play. To be a “holder” of a winning ticket and therefore entitled to the prize, plaintiff was required to have possession of a winning ticket. Plaintiff failed to comply with the procedure to claim his prize, and he did not have possession of a winning ticket nor had he signed a winning ticket. Plaintiff failed entirely to meet the requirements of claiming the prize he sought.
Plaintiff claims that the evidence that he purchased the winning ticket for the July 20, 1988, Kansas Cash Lotto drawing is overwhelming. However, denying his claim is consistent with other jurisdictions which have considered similar claims.
In Ramirez, 186 Mich. App. 275, payment to the claimant of a $1.5 million Lotto jackpot was denied. The claimant provided tickets showing he had played the same series of numbers for numerous bi-weekly Lotto drawings in the two-and-one-half month period before and in the month after the drawing he claimed to have won. The tickets also showed that he had frequently played a second series of numbers at the same time. The winning ticket was determined to have included both combinations of numbers the plaintiff had a history of playing together. However, because plaintiff was unable to produce the winning ticket, he did not receive the prize. Although it was noted that there was no doubt that Ramirez had purchased the winning ticket, the Michigan Supreme Court declined to review the decision of the Court of Appeals. Ramirez, 439 Mich. 861.
In Molina v. Games Mgt. Servs., 58 N.Y.2d 523, 462 N.Y.S.2d 615, 449 N.E.2d 395 (1983), plaintiff had a carbon copy showing she had purchased a ticket with the winning Lotto numbers. The rules and regulations of the lottery and the terms printed on the ticket provided that no ticket would be valid and qualify as a winner unless it had been microfilmed at the Lotto office before the drawing. The terms printed on the ticket also notified the player that the sales agents were acting on behalf of the player in validating tickets and returning them to the contractor (defendant Games Management Services). Plaintiff’s ticket was never microfilmed, although she provided evidence that her ticket had been validated by a sales agent. She claimed that the courier must have lost her ticket. Because her ticket was never microfilmed, the court held that the plaintiff was not entitled to the prize.
In Karafa, 129 N.J. Super. 499, plaintiff claimed that he was the $50,000 winner of a lottery drawing. Several people were present when plaintiff discovered that he had the winning ticket, and a newspaper reported that plaintiff was a $50,000 winner. Plaintiff asked his mother to hold his ticket for safekeeping, but she threw it away with a batch of non-winning tickets. Because plaintiff was unable to produce the winning ticket, the executive director of the lottery commission denied his claim. The court denied plaintiff’s claim, stating that the legislature intended payment only to the physical holder of a winning ticket. Therefore, plaintiff was not entitled to the $50,000 prize.
Plaintiff makes two main arguments as to why he is entitled to the jackpot prize despite his failure to comply with the statutes and the rules and regulations governing the Lottery. First, he claims that the Lottery had a practice of paying on lost or mu tilated tickets despite its written rules and regulations that lost or mutilated tickets would not be paid. Plaintiff argues that this practice was in effect during the time period when he made his claim, and the Lottery has only selectively enforced its written rules because plaintiff’s lost ticket was for a jackpot prize rather than a lesser amount. Plaintiff claims that this practice either modified the terms of the contract he entered into with the Lottery by purchasing his ticket or establishes that the Lottery’s denial of his claim was arbitrary, capricious, and discriminatory. Second, plaintiff claims that the written or unwritten rules which require him to submit his ticket to a retailer or to the Lottery were satisfied because he gave his ticket to an agent of the Lottery. Neither of plaintiff’s arguments have merit based on the facts of this case.
Plaintiff’s sole action against the Lottery here is based on judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) K.S.A. 77-601 et seq.; he may not maintain a separate action for breach of contract. His argument that the Lottery’s denial of his claim was arbitrary or capricious based on its prior practice is reviewable under the KJRA. K.S.A. 77-621(c)(8). Even if the Lottery is bound by its practice of paying on lost or mutilated tickets, plaintiff cannot establish that the Lottery’s decision was arbitrary or capricious in this case, and therefore there was no error by the district court in granting summary judgment to the defendants. Further, even if plaintiff could maintain a breach of contract action by showing that the terms of a contract between plaintiff and the Lottery were modified by the Lottery’s practice of paying lost or mutilated ticket claims, plaintiff cannot establish that he complied with the requirements of the “modified contract.”
Plaintiff’s evidence of the Lottery’s practice of paying on lost or mutilated tickets consists of two types. First, plaintiff points to inter-office memoranda, two in particular, which plaintiff claims shows the Lottery’s acknowledgement of its practice of paying on lost or mutilated tickets. Second, plaintiff deposed Jimmy Huff, the former director of security and of administration for the Lottery. Plaintiff alleges that Huff’s deposition shows the extent of the Lottery’s practice of paying on lost or mutilated tickets.
The first memorandum is from games accounting manager Kevin Scott informing the assistant attorney general for the Lottery of the practice of processing claims without having actual tickets. This memorandum refers to instant ticket games and states:
“Being that by reconstruction we could determine the status of the ticket (a winner or not), and IF no other claim was made on the same ticket, and IF no other information concerning the ticket was brought to the attention of the lottery (i.e., stolen, etc), that the claim could be paid AFTER the official expiration of the game. To my recollection this proposed practice was discussed and agreed upon by Larry Gray, Mike Craighead, and Jim Huff, and was then directed to me by my supervisor, Mike Craighead.”
It also lists, categorized by game, the number of instant tickets which had been reconstructed and paid: 205 tickets totalling $10,337 were reconstructed and paid.
The second memorandum is from the assistant attorney general for the Lottery to Scott. It directs Scott to pay two claims where the “actual tickets and claim forms in these cases were never received by the Lottery” but were “presented during a period of time when the Kansas Lottery was honoring claims based upon copies of tickets and claim forms.” One of the two claims was a Holiday Cash instant ticket purchased at the same Short Stop Convenience Store where plaintiff alleges he purchased his winning Kansas Cash Lotto ticket. The memorandum states, “In view of our treatment of similar claims in the past, we believe that it is imperative that these claims be honored following the expiration of ‘Holiday Cash’ on June 11, 1990.” The memorandum concludes, “In accordance with the Commission’s determination on March 2, 1990, we will not honor such claims in the future, except in those instances [where] validation has occurred at the retail level as set forth in our rules and regulations.”
In his deposition, Huff discussed the Lottery’s practice of paying claims on tickets which were lost or mutilated. Huff stated that as director of security, he often made decisions on whether to pay on altered tickets or questionable claims until, based on an Attorney General’s opinion, it was decided that the Lottery’s legal department would make the decision on questionable claims. Plaintiff’s counsel presented Huff with deposition exhibits showing copies of torn tickets or claims which were lost on which the claimant was paid; Huff admitted that it looked like the Lottery had paid these claims. However, Huff stated repeatedly during his deposition that there was always some form of evidence, either a portion of a ticket or a copy of a ticket or claim form, present when the Lottery paid on lost or mutilated ticket claims.
Huff discussed the process of reconstructing tickets to determine if they were winning tickets. He stated that he did not recall ever denying a claim where there was some evidence of a winning ticket. He admitted to paying a claim where the only supporting documentation was a ticket number, stating that “in order to come up with a ticket number, there had to be some part of the ticket or xerox copy of it” but admitting that the claimant might just have written the number down from the ticket before it was lost. Huff also admitted that claims were paid where
“the winner claim form is made out by the person claiming it, and they usually, rather than staple the ticket to the winner claim form, would put it in the envelope and it would get lost, with the ticket number at that point in time. We were just assuming that they had the ticket, because they couldn’t have wrote [sic] down the ticket number without the ticket.”
Huff also discussed one incident in which a ticket and claim form were lost in the mail, and the $902 prize was paid after the claim was verified but apparently before the claimant sent in a copy of his claim form and validation.
It does not appear that the Lottery denies it had a practice of paying on some lost or mutilated tickets during the period in which plaintiff attempted to claim his prize. Defendants merely indicate that the payments on lost or mutilated ticket claims were for instant tickets (rather than on-line tickets) and that the Lottery never paid a claim of the type presented in this case without actual presentation of the winning ticket. Plaintiff responds that the Lottery has paid on lost or mutilated on-line tickets and that in fact no claim has ever been made on the highest prize in a game where the retailer lost the ticket.
It does not matter which type of tickets the Lottery had a practice of paying when the tickets were lost or mutilated, although the evidence does show that some mutilated on-line tickets were paid. The plaintiff here did not meet the criteria for payment on a lost or mutilated ticket, whatever the type of ticket or game or amount of prize.
Huff’s deposition is filled with exhibits and examples of payment on claims where the ticket was lost or mutilated or the only evidence was a copy of the claim form. Instant tickets were paid on, for example, where the ticket was mutilated (sent through the washing machine), where the “void if removed” portion of the ticket had been removed by the retailer, or where the ticket was lost but there was a copy of the ticket or the claim form at least indicated the ticket number. In each of these cases, there was at the minimum a ticket number by which the ticket could be reconstructed to determine if it was a winning ticket. On-line ticket claims were paid, for example, where the ticket was mutilated, where the ticket was validated and turned into a regional office which then lost the ticket and claim form and the claimant produced a copy of the ticket and claim form, and where the on-line validation receipt and ticket and claim form were mailed in by the claimant but evidently lost in the mail and the claimant produced a copy of the ticket and claim form. Each of these on-line examples involved at the very least a copy of a claim form with either a copy of the ticket or validation receipt or validation number.
These examples all have a minimal factor in common: There was always some physical evidence of a ticket or claim form or ticket or validation number. Therefore, the Lottery was able to reconstruct the ticket or verify that it was a winning ticket. None of these examples are based merely on claimant’s assertion that he purchased a winning ticket.
Huff discussed the method of verifying a winning on-line ticket. He stated that by running a transaction file report and checking the numbers listed on the ticket against the numbers listed in the report, it could be determined where and when a ticket with the winning series of numbers was purchased. The transaction file report would show the same numbers in the same sequence as the numbers shown on the claimant’s on-line ticket, and in that manner the ticket would be verified. This was the method used to determine where and when the winning ticket for the July 20, 1988, Kansas Cash Lotto drawing was sold.
Plaintiff relies on Zinke & Trumbo, Ltd. v. Kansas Corporation Comm., 242 Kan. 470, 749 P.2d 21 (1988), and argues that “where the agency adjudicates a matter similar in circumstance to pre vious adjudications, the agency must show why the circumstances in the case at hand are sufficiently different to warrant a different outcome.” Plaintiff claims that the Lottery had paid more than 200 claims on lost or mutilated tickets, similar to the claim he has made, including a lost ticket purchased at the same store where he purchased his ticket, and therefore the Lottery must either pay him or distinguish his case. He claims that the Lottery’s failure to pay his claim is arbitrary, capricious, and discriminatory.
The facts here do not show that the Lottery changed its practice in refusing to pay plaintiff’s claim. Plaintiff’s claim is not similar in circumstance to the prior claims on lost or mutilated tickets. In each of those cases, there was some evidence of a ticket, a claim form had been filled out, or the ticket had been validated at some point. Here, there is no such evidence. Plaintiff has not established that payment was ever made where a ticket was lost before validation and never presented for validation or payment. Plaintiff never validated his winning ticket or submitted his winning ticket to a regional or state office or to a retailer. In fact, it does not appear from the record that plaintiff even knew what number combination his Kansas Cash Lotto Quick Pick ticket contained. The only reason plaintiff believes he had a ticket with the winning combination of numbers for the July 20, 1988, drawing is that he and his daughter remember he purchased a ticket at approximately the same time and at the same store that the winning ticket was determined to have been purchased. There is no evidence that the Lottery has ever paid on a lost ticket based on similar evidence.
Plaintiff also argues that the only reason the Lottery denied his claim is because his claim was for a jackpot prize, greater than any amount the Lottery had previously paid on lost or mutilated ticket claims. This is not established by the record. It cannot be said that the Lottery would have paid plaintiff had his claim been for a $1 prize rather than for jackpot prize of $117,037.-The Lottery’s practice of paying lost or mutilated ticket claims was based on its ability to reconstruct the ticket or verify that it was a winning ticket. Plaintiff has not established the minimal proof necessary to warrant payment of this prize even if the Lottery is bound by its practice of paying on lost or mutilated tickets.
Plaintiff also asserts that defendants want to ignore the reliance players and retailers placed on the Lottery’s practice of paying on lost or mutilated tickets. If players and retailers did indeed rely on the Lottery’s practice of paying on lost or mutilated tickets, such reliance would be misplaced considering the language on the back of each ticket indicating that it is a “bearer instrument” and considering the statutory language and the rules and regulations requiring a holder of a winning ticket to properly validate it to claim the prize.
To succeed in his petition for judicial review of an agency action under the KJRA, plaintiff must establish that the Lottery’s denial of his claim was arbitrary or capricious. Even if the Lottery must distinguish plaintiff’s claim from the previous lost or mutilated ticket claims on which it had a practice of paying, that distinction is easily made. The Lottery had some evidence that the claimant had possessed a winning ticket on each lost or mutilated ticket claim paid. It is uncontroverted that plaintiff lost his ticket before the drawing, so he never possessed a winning ticket. There is no evidence that the Lottery had ever paid on a lost ticket based solely on a claimant’s mere assertion that he or she purchased a ticket at a certain place and time after it is determined that a winning ticket was sold at that place and time. Plaintiff is unable to establish that the Lottery’s denial of his claim was arbitrary or capricious, and his petition for judicial review must fail.
Plaintiff also argues that the Short Stop, an authorized lottery retailer, was the Lottery’s agent. Plaintiff claims that when he gave his ticket to Ms. Cranmer, an employee of the Lottery’s agent, he submitted the ticket to the Lottery. At the very least, he argues, there are questions of fact as to whether the Short Stop was acting as the Lottery’s agent when plaintiff gave Ms. Cranmer his ticket and as to whether Ms. Cranmer was acting in her capacity as the agent’s employee when she retained his ticket, and this justifies reversing the trial court. Plaintiff discusses agency principles and argues that giving his ticket to an employee of the Lottery’s agent put the Lottery in possession of his ticket. By putting the Lottery in possession of his ticket, plaintiff claims he complied with the rules and regulations of the Lottery.
The facts are not disputed. Both plaintiff and Ms. Cranmer have stated that plaintiff asked his daughter to hold his ticket and to check the winning numbers for the next drawing because he was going to be out of town. What plaintiff’s argument ignores is that he gave his ticket to Ms. Cranmer as his daughter and not in her capacity as the employee of the Lottery’s agent.
Ms. Cranmer’s affidavit shows that the day after plaintiff asked her to hold his ticket, she checked her purse and realized the ticket was not there. This indicates that Ms. Cranmer expected to personally retain control of plaintiff’s ticket. Further, Ms. Cranmer states that she purchased another Kansas Cash Lotto ticket to replace the one that her father purchased, which also indicates her personal responsibility for retaining plaintiff’s ticket.
When plaintiff gave his ticket to Ms. Cranmer, it was not a winning ticket; the drawing had not yet been held. Plaintiff did not turn his ticket in for validation as he claims; a ticket cannot be validated unless it is a winning ticket. Neither the Lottery nor its agent received plaintiff’s ticket for validation. Plaintiff’s agency argument fails because an agent of the Lottery never received his ticket for validation.
Plaintiff notes, however, that “[n]o employee nor corporate principal was informed, either orally or in writing, to not take tickets until after a game was played.” Common sense dictates that retailers not retain tickets for customers to check against the winning numbers after a drawing; far too many tickets are sold for any retailer to collect tickets before a drawing.
Still, plaintiff claims that he signed his winning ticket and gave it to an authorized lottery retailer, and he states, “The Lottery seems to argue Mr. Fowles was required to retrieve the ticket from the retailer so he could then resubmit it to the same retailer.” First, plaintiff did not sign his ticket; his daughter wrote his name on the front of the ticket. Further, plaintiff’s ticket was not a winning ticket when he- gave it to Ms. Cranmer. Finally, plaintiff gave his ticket to his daughter, not to a lottery retailer.
There is no question of fact as to agency here. It is uncon-troverted that plaintiff lost his ticket before the July 20, 1988, drawing and that he never had his ticket validated. Giving his ticket to his daughter, who is emplqyed by an authorized lottery retailer but who accepted the ticket in her capacity as plaintiff’s daughter, does not support a finding that plaintiff submitted his ticket to an agent of the Lottery.
Summary judgment is appropriate
“where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When summary judgment is challenged on appeal, we must read the record in the light most favorable to the party who defended against the motion. We must reverse when we find that reasonable minds could differ as to the conclusions drawn 'from the evidence.” Hollenbeck v. Household Bank, 250 Kan. 747, 750, 829 P.2d 903 (1992).
The trial court did not err in granting defendants’ motion for summary judgment.
Affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
The State appeals the dismissal of nine indictments in eight separate actions. The eight separate actions were consolidated below for the purposes of the defendants’ motion to dismiss and again for purposes of this appeal. We deny the appeal of the State for reasons set forth in this opinion.
On May 12, 1992, pursuant to K.S.A. 22-3001(2), a petition for a grand jury was filed in the district court of Coffey County. K.S.A. 22-3001(2) permits the electors of a county to petition the court to summon a grand jury. After a petition is filed with the clerk of the court, the clerk must transmit it to the county election officer, who verifies the signatures and returns it to the clerk of the court, stating the number of qualified electors in the county and the number of votes cast in the county for governor in the last election. Thereafter, “[t]he judge or judges of the district court of the county shall then consider the petition and, if it is found that the petition is in proper form and bears the signatures of the required number of electors, a grand jury shall be ordered to be summoned.”
The defendants do not challenge the validity or sufficiency of the signatures on the petition for a grand jury. On May 18, 1992, District Magistrate Judge Philip M. Fromme issued an order finding that the petition was in proper form and bore the signatures of the required number of electors. He then ordered that “a Grand Jury be summoned in Coffey County, Kansas, to investigate alleged violations of law pursuant with the provisions of K.S.A. 22-3001, et seq.”
On August 19, 1992, that grand jury handed down indictments against George Finical, Harry L. Hunsley, Melvin Bunge, Vernon Sergeant, David Beard, Johnnie Sleezer, and Melvin Cummings. Those cases were assigned to District Judge John Sanders. Defendant David Beard entered a plea of no contest, which was accepted by the court. This indictment is not at issue in this appeal.
All other defendants filed a motion to dismiss before Judge Sanders, claiming that the “Grand Jury was not properly impaneled in compliance with the law.” Upon hearing, Judge Sanders concluded that K.S.A. 22-3001 required that a grand jury be summoned by “a majority of the district judges of the district, in order to be properly constituted and empowered to act.” Judge Sanders therefore dismissed all indictments. The State did not appeal from Judge Sanders’ order of dismissal.
District Magistrate Judge Philip M. Fromme, upon request by the State, extended the grand jury’s term beyond three months under K.S.A. 22-3013. On September 23, 1992, this same grand jury issued new indictments against the following six individuals indicted in August: Finical, Hunsley, Bunge, Cummings, Sleezer, and Sergeant. It also issued indictments against the following four additional defendants: Simmons Quarries, Inc., Neil Simmons, Mary Simmons, and Glenn Birk. All defendants moved to dismiss, and the cases were assigned to Judge Stevenson, who consolidated them without objection for the purpose of hearing various motions, including the motion to dismiss that is the subject of this appeal.
On December 7, 1992, Judge Stevenson dismissed the indictments. He stated, “[I]t does not appear that any change was made concerning the Grand Jury with the exception of extending the life thereof.” Judge Stevenson noted that K.S.A. 22-3602(b)(l) provides for the State’s appeal from any order dismissing an indictment. Because Judge Sanders ruled that the indictments issued from the grand jury were void and the grand jury was not reconvened or altered after his ruling, Judge Stevenson stated that he had no alternative but to dismiss the indictments before him.
We agree with Judge Stevenson’s decision. We hold that the State’s failure to appeal from Judge Sanders’ dismissal of the first indictments bars its appeal of Judge Stevenson’s order dismissing the second group of indictments.
There is no dispute in this case that Judge Sanders dismissed the indictments in the first series of cases because he found a flaw in the manner in which the grand jury was summoned. The State contends, however, that Judge Sanders’ order had no effect on the cases now before the court and that Judge Sanders’ order did not require or support Judge Stevenson’s dismissal of the indictments in this case. Defendants argue that Judge Sanders determined the validity of the indictments issued by the improperly convened grand jury and that the State could not revisit that issue before Judge Stevenson.
“The right to appeal is entirely statutory .... Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes.” State v. Neer, 247 Kan. 137, Syl. ¶ 1, 795 P.2d 362 (1990). K.S.A. 22-3602(b) permits the State to appeal only in limited circumstances, including an appeal “(1) [f]rom an order dismissing a complaint, information, or in-, dictment.” Rather than appealing Judge Sanders’ decision, the State chose to return to the same grand jury and seek additional indictments.
We have held that “[t]he dismissal of a complaint in a criminal prosecution is a final order arid precludes further prosecution of the defendant unless the State should overcome the reasons for the prior dismissal at a subsequent preliminary examination on a refiled complaint.” State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983). The State did not appeal Judge Sanders’ decision, and the State took no action to “overcome the reasons for the prior dismissal.” Judge Sanders dismissed the indictments because he found the grand jury was not properly convened. The State simply returned to the same grand jury and sought additional indictments against the same and additional defendants.
When the State chose not to appeal Judge Sanders’ ruling that the grand jury was not properly convened and lacked authority to issue valid and enforceable indictments, Judge Sanders’ ruling became the law of the case. We repeatedly have held that when an appealable order is not appealed it becomes the law of the case. See, e.g., Vaughan v. Hornaman, 195 Kan. 291, 403 P.2d 948 (1965) Grohusky v. Atlas Assurance Co., 194 Kan. 460, 399 P.2d 797 (1965); Hodge v. Freeman, 187 Kan. 650, 359 P.2d 845 (1961); Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 354 P.2d 687 (1960); Neuvert v. Woodman, 185 Kan. 373, 343 P.2d 206 (1959).
As stated in Neuvert, our decision “does not require that we here plow any virgin field or announce new and startling principles of law.” 185 Kan. at 380. The State did not timely appeal Judge Sanders’ order. The time to appeal that order has expired. Judge Sanders’ ruling determined that the grand jury was not properly convened and lacked authority to issue indictments. It therefore became the law of the case not only with respect to indictments issued against Finical, Hunsley, Bunge, Cummings, Sleezer, and Sergeant, but with respect to all indictments issued by that grand jury.
The State’s failure to appeal the dismissal of indictments based on the trial court’s determination that the grand jury was not properly convened and lacked the authority to issue indictments forecloses a later appeal involving the dismissal of new indictments issuing from that same grand jury. The State is bound by the earlier ruling.
Appeal denied. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State, pursuant to K.S.A. 1992 Supp. 22-3601(b)(2) and K.S.A. 22-3602(b)(l), from an order of the district court dismissing two counts of official misconduct, K.S.A. 21-3902, against John B. Adams, the Chief of Police of St. John, Kansas. The complaint was dismissed on the ground that the statute is unconstitutionally vague and indefinite.
The charges arose out of two separate incidents. In Count I of the complaint, Adams was charged with advising potential witnesses. While sitting in a marked patrol car, Adams allegedly had a conversation with Kristin Rodarmel and Nickie Willinger about three incidents which allegedly occurred at the residence of John Court Adams, Adams’ son, at his 20th birthday party on November 30, 1991. The incidents were subjects of criminal in vestigation at the time Adams had the conversation with Rodarmel and Willinger. The incidents were serving cereal malt beverage to underaged persons, battering of John Long by John Court Adams, and criminal trespass by John Long.
Adams went to his son’s residence during the party. Beer cans and liquor bottles were readily visible on the kitchen counter while he was there. Approximately 15 persons attended the party, and only 3 were over the age of 21. There was a fight at the party between John Court Adams and John Long. As a result, John Long was treated at the hospital for a cracked cheekbone and a facial laceration.
In the afternoon of December 1, 1991, at a convenience store in St. John, Adams is alleged to have said to Rodarmel and Willinger that the Kansas Bureau of Investigation would be interviewing witnesses and that “[i]f I were the minors at the party, I would say I did not drink and I did not know where the beer came from.” Rodarmel was 16 and Willinger was 17 at the time.
In Count II of the complaint, Adams was charged with searching a motor vehicle without the legal authority to do so. Adams allegedly searched a 1988 Oldsmobile without the consent of the owner, Frank Trevino, and without a search warrant. The search took place at the Cherrylane Apartments in St. John at approximately 9:30 p.m. on September 11, 1991. Trevino is a resident of Great Bend.
At approximately 8:54 p.m., the dispatcher received a report of suspicious activity at the Cherrylane Apartments. Officers who went to the apartment complex observed no suspicious activity. At approximately 9:29 p.m., the same person who had contacted the dispatcher earlier reported to the Stafford County Sheriff’s Office that there was suspicious activity at the Cherrylane Apartments. Four officers, including Adams, went to the apartment complex. Adams directed the other officers to watch for persons arriving at or leaving the apartment complex. Without attempting to obtain consent or a warrant, Adams searched Trevino’s car. Adams removed a container from the car, determined that it contained sugar, and replaced it in the car.
Adams was charged under K.S.A. 21-3902. However, the district court found that “the statute is vague and it is indefinite as to what conduct is proscribed” and that it cannot “serve as a definite warning to the person allegedly committing official misconduct.” The district court therefore concluded that the statute was unconstitutional and granted the defendant’s motion to dismiss.
The sole issue on appeal is whether K.S.A. 21-3902, on its face, is unconstitutionally vague and indefinite. K.S.A. 21-3902 provides in pertinent part as follows:
“Official misconduct is any of the following acts committed by a public officer or employee in his public capacity or under color of his office or employment:
“(a) Willfully and maliciously committing an act of oppression, partiality, misconduct or abuse of authority ....
“Official misconduct is a class A misdemeanor. Upon conviction of official misconduct a public officer or employee shall forfeit his office or employment.”
The State urges this court, at the outset, to appreciate the need to construe a statute as constitutionally firm whenever possible. The State directs the court’s attention to the following principles quoted in City of Wichita v. Wallace, 246 Kan. 253, 257, 788 P.2d 270 (1990):
“ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.’ ” (Quoting Moody v. Board of Shaumee County Comm’rs, 237 Kan. 67, 74, 697 P.2d 1310 [1985].)
In relation to the specific complaint of vagueness, this court stated:
“[T]he void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983).” City of Wichita, 246 Kan. at 258.
In State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983), the test was stated as
“whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.”
In City of Wichita, 246 Kan. at 259, the court quoted State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977), for this trenchant comment: “ At its heart the test for vagueness is a commonsense determination of fundamental fairness.’ ”
In addition to the inquiry whether the proscribed conduct is adequately defined, the court recognizes that a second inquiry is appropriate. That inquiry is “ ‘whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]).” City of Wichita, 246 Kan. at 259. When making either inquiry, the court should bear in mind that “[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.” 246 Kan. 253, Syl. ¶ 3.
In Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), the United States Supreme Court discussed the reasons why
“[v]ague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
Here, the district court’s conclusion that K.S.A. 21-3902 is void for vagueness was based on its finding that the proscription was too indefinite to serve as a warning. The State contends that the district court erred in finding that the statute failed to adequately define the proscribed conduct.
Although “overbreadth” is not the basis for the district court’s decision, it is argued by both parties in this appeal.
In City of Wichita, this court cautioned that confusion may occur when “vagueness” and “overbreadth” are used interchangeably. There, it was stated that a statute “can be clear and unambiguous but may nevertheless be overbroad if it prohibits constitutionally protected conduct.” 246 Kan. at 264. Hence, even if the precision of the drafting of K.S.A. 21-3902(a) and the clarity of its purpose were above reproach, if it prohibited constitutionally protected speech, it would be impermissibly overbroad.
The following discussion of the difference between “vagueness” and “overbreadth” from 16A Am. Jur. 2d, Constitutional Law § 460, pp. 247-48, is quoted in City of Wichita, 246 Kan. at 264:
“ ‘The distinction between the doctrines of overbreadth and vagueness is that the overbreadth doctrine is applicable primarily in the First Amendment area and may render void .legislation which is lacking neither in clarity nor precision, whereas the vagueness doctrine is rested on the due process clauses of the Fifth and Fourteenth Amendments and is applicable solely to legislation which is lacking in clarity and precision. In some cases, legislation has been voided on the grounds of both overbreadth and vagueness. However, the Supreme Court has not always made a clear distinction between the doctrines of overbreadth and vagueness. Before the Supreme ■ Court recognized the doctrine of overbreadth as a distinct doctrine, some legislation which the court might under its modern view vitiate on that ground was held invalid on the ground of vagueness.’ ”
Adams cites Houston v. Hill, 482 U.S. 451, 462, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987), and quotes from N.A.A.C.P. v. Button, 371 U.S. 415, 432, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). The passage he quotes is:
“Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.”
It continues:
“The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. [Citation omitted.] These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. [Citation omitted.] Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. [Citation omitted.]” 371 U.S. at 432-33.
In State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980), the defendant challenged K.S.A. 21-4101 (disorderly conduct) on the basis of “overbreadth.” This court upheld the statute by narrowly construing the statute to prohibit speech limited to the category of fighting words. In so doing, we said:
“Certain fundamental principles chart the permissible course for government regulation of speech. The First Amendment guarantee of freedom of speech forbids the States to punish use of language and words except in certain ‘narrowly limited classes of speech.’ Chaplinsky v. New Hampshire, 315 U.S. at 571. ‘Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Limited categories of speech which are not protected by the First Amendment include: Fighting words — Chaplinsky v. New Hampshire, 315 U.S. 568; obscenity — Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), and Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); libel — Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); and incitement — Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), and Feiner v. New York, 340 U.S. 315, 95 L. Ed. 295, 71 S. Ct. 303 (1951).” 228 Kan. at 190.
Adams argues that Count I involves First Amendment rights. We agree. In addition, it is not difficult to hypothesize other factual instances which under the statute would affect First Amendment freedoms. If such conduct is not within the “narrowly limited classes of speech,” the State cannot prohibit or punish it.
Under K.S.A. 21-3902, it is a crime for a public official to willfully and maliciously commit an act of misconduct. The statute does not specifically enumerate the types of misconduct prohibited. Misconduct is a general term and, as such, it has been struck down as unconstitutionally vague.
In Giaccio v. Pennsylvania, 382 U.S. 399, 15 L. Ed. 2d 447, 86 S. Ct. 518 (1966), the Supreme Court found a Pennsylvania statute allowing the jury to assess court costs against an acquitted defendant to be unconstitutionally vague. The judge instructed the jury, in part, that
“though found not guilty of the crime charged, if the jury found that ‘he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction [and] . . . his misconduct has given rise to the prosecution.’ ” 382 U.S. at 404.
In finding the statute impermissibly vague, the Supreme Court said:
“It may possibly be that the trial court’s charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. At best it only told the jury that if it found appellant guilty of ‘some misconduct’ less than that charged against him, it was authorized by law to saddle him with the State’s costs in its unsuccessful prosecution. It would be difficult if not impossible for a person to prepare a defense against such general abstract charges as ‘misconduct,’ or ‘reprehensible conduct.’ If ysed in a statute which imposed forfeitures, punishments or judgments for costs, such loose and unlimiting terms would certainly cause the statute to fail to measure up to the requirements of the Due Process Clause. And these terms are no more effective to make a statute valid which standing alone is void for vagueness.’’ (Emphasis added.) 382 U.S. at 404.
In Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969), the court found unconstitutional a university disciplinary proceeding suspending a student for “misconduct.” The Soglin court found the term “misconduct” to be unconstitutionally vague, stating:
“The use of ‘misconduct’ as a standard in imposing the penalties threatened here must therefore fall for vagueness. The inadequacy of the rule is apparent on its face. It contains no clues which could assist a student, an administrator or a reviewing judge in determining whether conduct not transgressing statutes is susceptible to punishment by the University as ‘misconduct.’ Since the misconduct standard is invalid on its face, it was unnecessary for the district court to make any findings with respect to plaintiffs’ activities on October 18, 1967.
“. . . The ability to punish ‘misconduct’ per se affords no safeguard against the imposition of disciplinary proceedings overreaching permissible limits and penalizing activities which are free from any taint of impropriety.” 418 F.2d at 168.
Adams relies heavily on State v. DeLeo, 356 So. 2d 306 (Fla. 1978). In that case, appeals from two prosecutions under Fla. Stat. § 839.25(l)(c) (1977) were consolidated and placed before the Florida Supreme Court the question of the statute’s constitutional validity. The court invalidated the statute “because it is susceptible to arbitrary application.” 356 So. 2d at 307. The statute stated in pertinent part as follows:
“ ‘Official Misconduct’ means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:
“(c) Knowingly violating, or causing another to violate, any statute or lawfully adopted regulation or. rule relating to his office.”
DeLeo is the only case cited by the parties which is directly analogous to the present case. The Florida Supreme Court reasoned:
“ ‘Qfficial Misconduct’ under subsection (c) is keyed into the violation of any statute, rule or regulation, pertaining to the office of the accused, whether they contain criminal penalties themselves or not, and no matter how minor or trivial. Any public servant may commit such misconduct. Public servant is not defined in Chapter 839, but in Chapter 838, a related Chapter, it is defined for purposes of that Chapter as any public officer, agent or governmental employee, whether elected or appointed. Theoretically, then, using this definition an appointed employee could be charged with official misconduct, a felony in the third degree and punishable by up to fiye years in prison or a fine up to $5,000, for violating a minor agency rule applicable to him, which might carry no penalty of its own.
“Of course, the violation must be proven to have been committed with corrupt intent. This element of the offense might prevent its arbitrary application, but it does not. All that [is] necessary for intent to be corrupt is that it be ‘done with knowledge that the act is wrongful and with improper motive.’ This standard is too vague to give men of common intelligence sufficient warning of what is corrupt and outlawed, therefore, by the statute. The ‘corruption’ element, as defined, does nothing to cure the statute’s susceptibility to arbitrary application.
“While some discretion is inherent in prosecutorial decision-making, it cannot be without bounds. The crime defined by the statute, knowing violations of any statute, rule or regulation for an improper motive, is simply too open-ended to limit prosecutorial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its ‘catchall’ nature.” 356 So. 2d at 308.
The Florida Supreme Court also was concerned that § 839.25 carried a felony designation and a possible penalty of up to five years’ imprisonment or a $5,000 fine. Official misconduct under the Kansas statute is a class A misdemeanor. It should also be noted that forfeiture of office is mandatory upon conviction of K.S.A. 21-3902.
A problem, as far as the Florida court was concerned, with that state’s official misconduct criminal statute was the way it was “keyed into” the violation of not only criminal statutes, but also non-penal statutes, rules, and regulations pertaining to the office of the accused. The Florida court was concerned that the statute would support prosecution for “a minor agency rule.” K.S.A. 21-3902 does not contain a similar “keying-in” provision. Thus, it does not expressly sanction prosecuting violations of trivial rules. On the other hand, it does not restrict prosecutions to significant transgressions. In fact, there is a complete absence of any link with recognized behavioral standards. For this reason, K.S.A. 21-3902 on its face is susceptible to arbitrary and discriminating interpretation and application by those charged with' the responsibility of enforcing it. As noted by the Florida Supreme Court, the requirement that the act be done willfully and maliciously does not prevent the statute’s arbitrary and discriminatory application. An act which is vague does not become certain because it is done willfully and maliciously.
Due to the great divergence of opinion held in our society as to what is acceptable or proper behavior, misconduct is in the eye of the beholder. For that reason, “misconduct” as a standard of conduct is “so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). Nor are we persuaded by the State’s argument that the words “oppression,” “partiality,” “misconduct,” or “abuse of authority” are commonly understood and therefore not vague, citing State v. Rose, 234 Kan. 1044, 1046, 677 P.2d 1011 (1984); In re Brooks, 228 Kan. 541, 544, 618 P.2d 814 (1980); and Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d 65 (1977). Those cases are distinguishable from the present case. In Rose, the term challenged as vague was the word “substantially” in K.S.A. 8-1749a(a) (Ensley), which proscribed the use of windshields and side windows in motor vehicles that “prohibit[ed] or substantially impair[ed] the ability to see into such motor vehicle from the outside.” Our decision, to a great extent, was based on the fact that the terms “substantial” and “material” are synonymous and their meaning had been construed in numerous Kansas appellate cases. We concluded:
“The gravamen of the offense is clearly the impairment of visibility into the motor vehicle from the outside. Operators and owners of vehicles are clearly and sufficiently warned they cannot install one-way glass or apply other substances to the windshield and side windows of a car or other vehicle which prevents or impairs the ability to view the inside of the vehicle from the outside.” 234 Kan. at 1049-50.
In Brooks, the term “unfit,” as used in K.S.A. 1978 Supp. 38-824, was challenged as vague. We concluded that the term had been previously construed and defined in this court' and in the Court of Appeals and therefore was not vague. 228 Kan. at 546-47.
Nor does it follow that these terms are “commonly understood” because they are defined in any standard dictionary. Many words are defined in a standard dictionary which are not “commonly understood.” The question is whether a person of ordinary intelligence understands what conduct is prohibited by the use of these terms. The terms are not adjectives which modify, limit, or qualify the act or conduct prohibited. Instead, each of these terms constitutes conduct which is prohibited. Nor are they terms which have been considered and defined by numerous appellate court decisions. We find such unlimiting terms necessarily require persons of ordinary intelligence to guess at what acts constitute “official misconduct” and differ as to their application.
Reading K.S.A. 21-3902 in light of the previously stated standard, we conclude that the statute is impermissibly vague and violates due process of law.
The judgment of the district court dismissing the two counts of official misconduct is affirmed. | [
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On September 27, 1993, in the United States District Court for the District of Kansas, respondent Gary D. Leitner, of Olathe, Kansas, an attorney admitted to practice law in the State of Kansas, pleaded guilty to one felony count of bank fraud, in violation of 18 U.S.C. § 1344(2) (1988). On January 3, 1994, respondent was sentenced to serve 57 months in the custody of the United States Bureau of Prisons. Respondent’s sentence began on January 24, 1994.
In a letter dated February 21, 1994, to the Clerk of the Appellate Courts, respondent voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1993 Kan. Ct. R. Annot. 185).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Gary D. Leitner be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Gary D. Leitner from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187). | [
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The opinion of the court was delivered by
Davis, J.:
The defendant, Darin Mays, appeals his convictions of rape and aggravated robbery. He contends that the court denied him the right to present evidence in support of his theory of defense. The defendant further contends that the court erred by failing to instruct on eyewitness identification. We need not address the defendant’s second contention because the exclusion of evidence under the facts of this case resulted in the denial of a fair trial. Accordingly, for the reasons expressed, we reverse and remand for a new trial.
R.J. was staying with her boyfriend, Tyrone Dillard, at a motel in Kansas City, while their house was being exterminated. She testified that while alone in their room about 3:00 p.m. her uncle, Jerry Robinson, came into the room, claiming that her boyfriend told him to come by and borrow about $25. She testified that her uncle stated that he would return later to pick up the money.
Soon after Robinson left, R.J. said she responded to a knock on the door, looked out, and saw the defendant. She recognized the defendant as “Dolemite” because she had seen him on the streets “a couple of times” a year or more before that date. She testified that she did not “run around” with the defendant and had never conversed with him but that he “hung around” with her cousins and others she knew.
R.J. testified that she let the defendant in and that as soon as she had closed the door he pulled a handgun, pointed it at her head, and told her he wanted everything she had. She testified that after she gave the defendant about $100, he told her to sit on the bed, started searching the room, and told her that if he found anything else he would kill her.
According to R.J., the defendant then returned to the bed and told her to take off all of her clothes. When she failed to respond quickly, he “started yanldng them.” She testified that the defendant then fondled her breasts and inserted his fingers into her vagina. The defendant then yanked the telephone out of the wall and left, taking with him the money and her boyfriend’s diamond ring, which the defendant saw on the counter as he was leaving.
R.J. dressed and left the room. Tyrone Dillard drove up as she was on her way to the front office to call him for help in reporting the crime to the police. Dillard drove her to the police station, where she reported the crime. Detective Wohlforth showed R.J. six photos, from which she identified the defendant. Detective Wohlforth testified that no one assisted her in making the identification and that R.J. had no doubt that she had correctly identified the man who had raped and robbed her.
Dillard testified that as he was pulling into the motel parking lot, he saw R.J.’s uncle, Jerry Robinson, and a man known as Horse driving away in a blue Chrysler automobile. Dillard had seen the defendant with Robinson and Horse earlier that day in the same car but did not see the defendant with Robinson and Horse as they left the motel in the car.
Officer Thebo testified that he processed the telephone for fingerprints. He was unable to identify any prints as those of the defendant. Detective Wohlforth testified that he interviewed R.J. and Dillard separately. R.J. was upset and “trying real hard to hold back the tears.” According to Wohlforth’s testimony, R.J. described to him the same series of events that she described to the jury. R.J. told Wohlforth that the perpetrator’s name was Dolemite. Another detective told Wohlforth that Dolemite was known to him as Darin Mays. Officer Wohlforth placed the defendant’s photo in a photographic lineup with five other photographs and displayed them in random order to R.J. She looked at all of the photos and identified the defendant.
Jerry Robinson testified on behalf of the defendant. He denied seeing R.J. or being in her room, and he denied that he asked to borrow money. The defendant’s mother and his cousin, Jan Brooks, testified that the defendant was at his residence the entire day of the incident and never left the residence. The defendant also testified that he was at his residence that day and never did see R.J. or Dillard on the day of the incident.
The jury found the defendant guilty of both counts, and he was sentenced to 15 years to life for each count, the terms to be served concurrently.
The State’s case was based upon the testimony of R.J. No physical evidence linking the defendant to the offense was presented, with perhaps the exception of testimony as to the clothes the defendant was wearing. The State claims that the defendant’s witness, Jan Brooks, corroborated R.J.’s testimony about the clothes the defendant was wearing. Yet, there was some variance, and Jan Brooks’ recollection was not that complete. When Tyrone Dillard returned to the motel room, he saw a car in which there were three people, including Robinson and Horse. Dillard did not see the defendant at that time. About two minutes after the car left, R.J. walked up and said she had been robbed and sexually assaulted. As a practical matter, the State’s case rested exlusively upon R.J.’s testimony.
It is against this backdrop that we examine the first allegation of error. The defendant contends that the trial court denied him the right to present evidence in support of his theory of defense because it precluded him from testifying regarding a prior altercation with Dillard and from cross-examining R.J. regarding her financial dependence upon Dillard.
According to the defendant, he did not know whether the rape and robbery occurred. It was his theory that R.J. was lying either about the incident or about who raped and robbed her. According to the defendant’s theory, R.J. lied because Dillard and the defendant had been engaged in an ongoing feud concerning money that the defendant had gambled away, money that belonged to Dillard. Based upon their relationship and upon the fact that Dillard provided financial support for R.J., the defendant contended that she lied to help Dillard cany out the vendetta he allegedly had against the defendant.
Perhaps the best way to illustrate what evidence was excluded by the trial court, the significance of the evidence as it related to the defendant’s theory, and the basis upon which the court excluded the evidence is to quote directly from the record.
The following exchange occurred during the cross-examination of R.J.:
“Q. [MR. REED, defense counsel] Ms. [R.J.], do you work for a living?
“A. No.
“Q. And who provides your support?
“MR. RUSSELL [prosecution]: Object. May we approach the bench?
“THE COURT: Veiy well.
“(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
“MR. RUSSELL: Judge, I would object to any of this as it’s irrelevant as to what happened on that day and how she makes a living. I don’t know where he’s going with this, but if he’s trying to prove she came through money through drugs or something, that has no relevance. As to whether or not a robbery took place — does not have anything to do with where the money came from or anything.
“MR. REED: Your Honor, if I may, if I can try to establish a basis of relevancy, the point of my inquiry is it goes to one of credibility, because my client is going to argue that Mr. Dillard is involved in the drug trade. The reason why they made these charges against him is because he double-crossed her boyfriend, Tyrone Dillard, who provides her support.
“THE COURT: At this point in time, I see no reason of what she does for a living or how she makes a living to be brought into the charges. I’ll sustain the objection.”
The following exchange took place during the defense counsel’s cross-examination of Tyrone Dillard:
“(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury.)
“MR. REED: Your Honor, I thought it would be wise to ask for a cite now. But on the question now of credibility, I want to elicit some testimony concerning the ongoing feud between Mr. Dillard and Mr. Mays concerning some stolen money, and I’d like to be able to ask those questions.
“MR. RUSSELL: Judge, under 60-422, that deals with credibility of a witness and it says you can only cross-examine a witness about prior instances of crimes involving dishonesty or fraud. And if he’s going to lead up to about drugs, that has no — that is not a crime that deals with dishonesty or fraud, and under 60-422, does not allow it and I would object . . ., and number two, that’s inadmissible evidence.
“THE COURT: Tell me exactly what it is you want to get into.
“MR. REED: Well, Your Honor, my client’s — my client’s allegation is that because of some prior business transactions between him and Mr. Dillard that a motive which created, you know, for his testimony and the reason why these charges have been brought against him, my client would, you know, testify when it comes his turn to testify that he misapplied some funds that were lent to him by Mr. Dillard and a substantial sum of money, and that for this reason that he [Dillard] has a vendetta, if you want to call it, against — against Mr. Mays. What I want to do is try to elicit this before the jury is to show that apart from the fact that he’s the boyfriend of Ms. [R.J.], that he may perhaps have some other motives to appear here to testify as he has.
“THE COURT: When you say ‘other motives’, are you saying that because of this gentleman’s relationship financially with your client that [R.J.] is lying?
“MR. REED: Well, that — yeah, that’s basically my client’s argument.
“THE COURT: Mr. Dillard has the power over the young lady to make her lie, then, or—
“MR. REED: That’s already been made by my client.
“THE COURT: Tell me about this — when did this economic situation develop?
“MR. REED: What time was that you got the money?
“MR. MAYS: I don’t remember when, it was before the incident, you know, about the beginning of June or the end of May and he give me some money to get some—
“MR. REED: About a thousand dollars?
“MR. MAYS: Yes, some money to get something for him and I lost the money gambling. And I was going to try to pay him back, but I had got laid off at the time and he got a little upset about it, you know, and I wasn’t working. I told him I’d get paid, I was going to draw unemployment to pay him back. He didn’t want that, so we got into it at a club one night and we got into a little fight, and he states that he would get even with me somehow, you know. And come after June 18th, a few weeks later, I had a warrant out for my arrest for this aggravated robbery and rape against his girlfriend.
“MR. REED: So again, your Honor, to recapitulate, my client’s argument is that Mr. Dillard does have that influence over his girlfriend and that this is his means of getting even for that shorting him on that business transaction.
“THE COURT: Mr. Russell?
“MR. RUSSELL: Judge, when we went through the first sideboard on the first witness, I heard the term ‘drug use’ up there, and now they’re talking about a transaction and I don’t know if they’re talking about drugs or not. I mean we’re outside the hearing of the jury if that’s what they’re arguing, that has no relevance at all. I mean, number one, you cannot cross-examine someone about drugs because it’s not a crime that involves dishonesty or fraud. As to if they’re not using the term ‘drugs’ and they want to use the term ‘transaction’, that somehow this witness has some type of control over a victim to make the story she has, I don’t think there’s been any showing by this defendant that there’s any relevance to that other than it’s a made-up story.
“THE COURT: I agree with what most of you would say, but if this witness would have an interest in the outcome of this case, any interest that may be as to the defendant, would be relevant for credibility purposes.
“MR. REED: So again, Your Honor, I think it’s relevant not only to— not so much her testimony to a lesser extent because she’s a third person, but mostly to his credibility as a witness.
“MR. RUSSELL: Well, now we’re straying from that. If they’re going to tie it in say now he’s got control over the woman . . . — as prior bad acts, I don’t see that as a prior bad act or specific instance or conduct. If there’s any probative value, it’s outweighed by the undue prejudice.
“MR. REED: Again, Your Honor, the point of this testimony I want to elicit is not to show that Mr. Dillard is a bad person, but simply to show that in this specific instance, this case that we have before us, there is a motive to develop the testimony which he has oflered, and I think it goes directly to the issue of credibility because I think this shows that he is not a dispassionate observer apart from the fact that she is his girlfriend.”
The court allowed defense counsel to inquire as to the loan transaction. Tyrone Dillard testified that he never loaned money to the defendant and never got into a feud with the defendant. Dillard also testified that four months prior to the incident at issue here, the defendant and Jerry Robinson robbed Dillard. Dillard stated that he reported it to the police but denied that he ever made a statement he would get even with the defendant. On redirect, Dillard testified that he did not influence R.J. in her identification of the defendant in this case and that the police brought them back into the office separately.
Finally, while the defendant was testifying on direct examination, the following exchange took place:
“Q. (By Mr. Reed) Mr. Mays, in the months preceding June 18th, did you have any contacts with Mr. Dillard?
“A. Not around June the 18th. Before then I did.
“Q. And when was that?
“A. I think it was probably beginning of the year, somewhere like that.
“Q. Beginning of 1991?
“A. Yeah, somewhere like January or February I seen him at a club and we had got into it.
"Q. Can you tell the jury about what happened there?
“MR. RUSSELL: Judge, I would object to any of this. This is irrelevant.
“MR. REED: Your Honor, I think given this goes to the — perhaps the Court wants a bench conference on this — but I think this goes directly to the issue of the credibility of the prosecution witness. This isn’t a matter of collateral impeachment, I think this goes directly—
“THE COURT: Approach the bench.
“(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
“THE COURT: I guess what bothers me, I’m not sure it’s ever been shown that the guy has that much control over the woman, and the guy’s testimony is he didn’t have anything to do with this crime. It’s her testimony, and there’s nothing been shown that she has a reason or an interest in this to lie, so—
“MR. REED: But one of my arguments that I’m going to make during closing is that perhaps what inference he had would suggest in her mind that if she had any problems with identification, perhaps his power of suggestion helped her to identify Mr. Mays as her attacker.
“MR. RUSSELL: Judge, the evidence in this case has been that there was a photo lineup. He’s testified that she didn’t see him and she picked him out of a lineup. His name does not appear on that photo anywhere. How is it that he could tell her to pick out any person when there’s no name there and she’s never seen him?
“THE COURT: I’m going to sustain the objection.”
Evidence concerning the financial dependence of R.J. upon her boyfriend, Tyrone Dillard, was material, relevant, and admissible. Evidence concerning a feud and fight between the defendant and Dillard, as well as Dillard’s alleged statement that he would get even with the defendant, was material, relevant, and admissible. Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). See State v. Baker, 219 Kan. 854, Syl. ¶¶ 1, 2, 4, 549 P.2d 911 (1976).
While a formal proffer by defense counsel was not made in each instance, the court, based upon side bar conferences with counsel, was aware of the information to be elicited and the reasons why such information was important to the defendant’s theory of his defense. The defendant himself, in one of the conferences outside the presence of the jury, explained to the court that Tyrone Dillard said to him after a fight over money at a local bar that he was going to get even with the defendant. We are satisfied that the record meets the requirements that the defendant make a proffer of the excluded evidence, for the record demonstrates the nature of the excluded evidence and the significance of that evidence to the defendant’s case.
Immediately after the incident, R.J. dressed and left the room to contact Dillard for help in reporting the rape and robbery to the police. She met Dillard, and he drove her to the police station. The evidence demonstrates that while she was not acquainted with the defendant she could recognize him from seeing him at other times before the incident. She testified that she recognized him as “Dolemite.”
The only evidence supporting the defendant’s convictions was the testimony of R.J. If the jury believed her testimony, it necessarily would convict the defendant. At the same time the jury necessarily would reject the testimony of the defendant and his alibi witnesses. Evidence bearing upon the credibility of R.J. was key to and an integral part of the defendant’s defense.
In State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 (1978), we said: “A defendant is entitled to present the theory of his defense. The exclusion of evidence, which is an integral part of the theory of defense, violates the defendant’s fundamental right to a fair trial.”
In Bradley, the defendant raised self-defense in a case where the victim entered the room in an intoxicated condition and fired a shot at the defendant, with the bullet striking the mattress near the defendant’s head. The defendant jumped up and struggled with the victim, resulting in the victim’s death. 223 Kan. at 712.
The victim knew the defendant and, before coming into the room, learned that the defendant was a police informant who might turn the victim in for an earlier offense the victim had committed. The defendant sought to establish that fear of being reported to the authorities was the reason the victim attacked the defendant. The court excluded this evidence by ruling in limine that such evidence was evidence of bad character and inadmissible. 223 Kan. at 713. We agreed that the evidence was properly excluded as evidence of bad character by the trial court. Yet, in Bradley, we held that the defendant
“had a right to present his theory of defense. He had the right to introduce into evidence what he believed was the motive and intent of the deceased for what he claimed was an attack by the deceased upon his person. This was an integral part of his claim of self-defense or justifiable homicide. It is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict. The right to present one’s theory of defense is absolute.” 223 Kan. at 713-14.
In addition to his alibi defense, the defendant’s theory was that the alleged victim, R.J., had a motive to lie about the rape and robbery itself or who committed the rape and robbery. Her motive was to please her boyfriend, who supported her and had told the defendant within the past year that he would get even with the defendant.
We have no way of knowing what impact this evidence may have had upon the jury. We do know that the defendant’s conviction depends upon the testimony of R.J. We are not prepared to conclude that the exclusion of evidence bearing upon the credibility of the main witness against the defendant in a case where no physical evidence connected the defendant to the crime scene was harmless error.
The exclusion of relevant, admissible, noncumulative evidence bearing upon the credibility of a critical prosecution witness unfairly prejudiced the defendant. The exclusion of evidence in this case is similar to the exclusion that occurred in State v. Davis, 237 Kan. 155, 159, 697 P.2d 1321 (1985). Just as in Davis, the evidence excluded herein was admissible and related to the credibility of a critical witness against the defendant. In Davis, as here, we reversed and remanded for a new trial.
In State v. Humphrey, 252 Kan. 6, Syl. ¶ 3, 845 P.2d 592 (1992), we said: “It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her defense to the charge so the jury may properly weigh the evidence and reach its verdict.” We further recognized in Humphrey that
“[t]he Confrontation Clause of the Sixth Amendment affords an accused the right to cross-examination. The United States Supreme Court has ‘recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross- examination.’ Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974).” 252 Kan. at 17.
The trial court in this case prevented the defendant from cross-examining both R.J. and Tyrone Dillard involving matters attacking the credibility of the only witness providing any evidence against him. The court further excluded evidence offered on direct examination by the defendant concerning an ongoing feud between the defendant and Dillard. The court excluded evidence that was an integral part of the theory of the defense. The exclusion violated the defendant’s fundamental right to a fair trial. See State v. Gonzales, 245 Kan. 691, 783 P.2d 1239 (1989). Accordingly, we reverse and remand for a new trial.
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal by defendant from his conviction of one count of premeditated first-degree murder, K.S.A. 1990 Supp. 21-3401. Defendant claims the trial court erred in (1) failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter; and (2) admitting evidence that defendant had previously abused his wife.
Roy McClanahan was charged with one count of first-degree murder, K.S.A. 1990 Supp. 21-3401, a class A felony, and one count of aggravated burglary, K.S.A. 21-3716, a class C felony, for the events culminating in the killing of Michael Martin.
Roy was married to Josephine McClanahan. They separated in early May 1991 due to Roy’s physical abuse of Josephine. Josephine moved in with Ginger McClanahan, Roy’s daughter-in-law. Josephine told Ginger that she could not take Roy’s beating her any more. Josephine explained to Ginger that she did not want Roy to know where she was staying because he would come and hurt her. Josephine did tell Roy she was living on Main Street in Hutchinson but did not give him the address.
After the separation, Josephine began dating Michael Martin, a next-door neighbor and friend .of Roy’s. Martin stayed the night on May 25, 1991, with Josephine. Ginger, her roommate Vanessa Collins, and Jimmy Robert had been sitting outside on the back porch that evening until about 4:30 a.m. Collins saw a blue four-door car with only one occupant drive up and down the alley three to four times. She could not identify the driver. Collins took Robert home around 5:00 a.m., then returned to the residence, turned out the kitchen light, and went to bed.
About the same time, Ginger’s baby, who was sleeping in the room with Josephine and Martin, woke Josephine up, and she then heard glass breaking. Josephine, who was nude, put on a housecoat as she was leaving the bedroom to check what had caused the noise. She then saw Roy with a shotgun coming into the front room of the residence. Roy told Josephine to get out of the way, pushed her aside, and entered the bedroom. Josephine called to Ginger for help.. Roy was in the bedroom for about two minutes. Josephine heard Martin say, “Oh shit”; then the gun fired. Roy came out of the bedroom, hit Josephine in the face, and left the house.
Josephine looked in the bedroom and saw that Martin had been shot. Martin was in a different position than when Josephine had left the bedroom prior to the shooting. The covers had been pulled off him. The county coroner testified the shotgun blast entered Martin’s right side and destroyed his heart, both lungs, and the dome of his liver. The coroner opined Martin had raised his right arm up in an anticipatory or defensive move immediately pi-ior to the shooting. The coroner could- not say what position Martin was in when he was shot. There was a large hole in the blanket that was found in tire bed with Martin-
Josephine and Ginger went outside and met a police officer responding to the report of the shooting. Ginger had been awakened by people arguing downstairs. The arguing went on for one to two minutes. She did not know who was arguing or what was said. She heard a loud sound like a door being slammed. When Ginger got downstairs she saw Josephine. Josephine told her that Roy had been there. Ginger did not see .Roy in the apartment.
Officer Sharp was the first officer on the scene. Josephine told him that Roy had been in the house and had beaten her. Sharp noticed Josephine’s face was red and swollen. A second woman told Sharp that a body was inside the residence. Minutes after arriving at the scene, Sharp received a police radio transmission that Roy had surrendered at the police station and had admitted the shooting.
After leaving the residence, Roy apparently went directly to the police station. At the station, Roy told the desk clerk he had just killed a man. When Sergeant Angelí, the detail commander, approached Roy, Roy assumed a “search position” by placing his hands on a railing. Roy told Angelí he had found Martin in bed with Roy’s wife and had lulled, him. Roy was nervous and acted out of breath. Angelí did not smell any odor of alcohol on Roy’s breath.
Angelí searched Roy and found a spent shotgun shell in one pocket and an unused shell in another pocket. Roy told Angelí that the shotgun was outside in his car. A search warrant was obtained, and a 12-gauge shotgun was found in a four-door blue Buick registered to Roy and Josephine McClanahan. A search of Roy’s residence turned up a box of 12-gauge shotgun shells with four shells missing.
One to two months prior to the shooting, Roy had borrowed the shotgun from Jim Lowe, Josephine’s brother, allegedly to scare off prowlers who had been hanging around Roy’s residence. Lowe testified that Roy asked him how to load rock salt into the shotgun shells and then asked to borrow some shells. Lowe told Roy to get his own shells. Lowe only showed Roy how to load one shell at a time into the shotgun.
Jim Lowe and his wife Teresa both testified that on separate occasions, prior to the shooting, after Jim had loaned the shotgun to Roy, Roy had stated he would kill Josephine and her lover if he caught her messing around or stepping out on him. Roy told Teresa he would plead insanity to get away with it. Jim did not do anything because he did not think Roy was capable of carrying out the threat.
Roy McClanahan testified on his own behalf. Roy believed that Josephine was seeing someone else. He broke into the residence where Josephine was staying to find out what was going on. Roy claimed that during the week prior to the shooting, he had been threatened by two men he recognized but whose names he did not know. The men informed Roy if he bothered Mike and Josephine they would “kick his ass.”
Roy testified that he had not intended to shoot anyone when he entered the residence. He took the shotgun to prevent anyone from bullying him. Roy said when he saw Josephine coming out of a bedroom, without any clothes on, putting on a robe, he was stunned, got angry, and “flipped.” Roy stated he noticed a bruise on Josephine’s cheek and asked her where it came from. She told him she “stepped through the bedroom door.” Roy pushed Josephine aside and entered the dark bedroom. Someone grabbed the barrel of the shotgun and pulled Roy forward. Roy jerked back, and the gun went off. Roy testified he did not pull the bedding off of Martin. Roy stated he had not fought with Martin. Roy denied that he had cruised the alley before entering the residence, that he had struck Josephine after the shooting, or that he had an extra shell in his pocket when arrested at the police station.
On cross-examination, Roy stated he did not know if Martin was under the blanket when the gun fired. Roy claimed he learned that it was Martin who was in the bedroom as he was leaving the residence when Josephine said that he had shot Martin. Roy admitted Angelí had found the second shell when Angelí searched Roy at the police station. Roy denied that Martin said anything before the shot was fired. Roy also denied that he had asked Jim Lowe how to load rock salt in a shotgun shell, that Lowe had refused to give him any shells, or that Lowe had only shown him how to load one shell at a time. Finally, Roy denied telling the Lowes that he would kill Josephine and her boyfriend if he caught her “messing around.”
Towards the end of cross-examination the prosecutor asked, “Isn’t it true that when you flipped that you just got that much more angry and you went in that bedroom and finished the job and killed Michael Martin?” Roy replied, “The way I understand now, yes. The way I understand now, yes. At the time, no.” The prosecutor then asked Roy if he disagreed that he beat Josephine up after he shot Martin and he said no. In response to the prosecutor’s assertion that Roy was the only one claiming the shooting was an accident, Roy replied:
“I ain't saying it’s an accident or what. I don’t know what happened really after the time of the crime I, I, you’re right, I don’t know what the right word. I tried to think it out, re-rationalize it. I have had dreams of it, flashbacks and stuff like that, and to your question, I don’t know how to answer that.”
At the close of the State’s evidence, the defense requested lesser included instructions on second-degree murder and voluntary manslaughter be given. The State objected. The trial court noted the statement in State v. Mayberry, 248 Kan. 369, 385, 807 P.2d 86 (1991), that “before instructions on lesser included offenses are required there must be positive testimony presented by the defense to prove a version of the homicide contrary to the version presented by the State.”
The trial court then ruled that because Roy had testified the shooting was unintentional, and both of the lesser crimes inquire an intentional homicide, the court was precluded from instructing on second-degree murder or voluntary manslaughter. Over the State’s objection, the court did instruct the jury on the lesser included offense of involuntary manslaughter.
During deliberations the jury asked how long a time frame can be considered for premeditation. The court answered that there was no particular time interval required between the thought and the act. The jury subsequently found Roy guilty of first-degree murder. He was sentenced to life with parole eligibility after 15 years. His motion for a new trial was denied. Roy now appeals his conviction.
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
The trial court has an affirmative duty to instruct the juiy on all lesser included offenses for which there is evidence to support a conviction on the included offense. The evidence may be inconclusive, weak, or unsatisfactory, but must be substantial enough that a rational factfinder could reasonably find the defendant guilty of the lesser included offense. On review, this court views the evidence in the light most favorable to the defendant. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993).
Both second-degree murder and voluntary manslaughter are lesser degrees and therefore included offenses of first-degree murder. State v. (Elbert) Dixon, 252 Kan. 39, 42, 843 P.2d 182 (1992); K.S.A. 21-3107(2)(a). Was there substantial evidence to support a conviction on either of these lesser included offenses and require the trial judge to give an instruction on either or both offenses? Substantial evidence is that which “ possesses both relevance and substance’ ” and which would be sufficient for a reasonable person to draw a conclusion from. State v. Grissom, 251 Kan. 851, 907, 840 P.2d 1142 (1992).
We note the trial court erroneously concluded that before an instruction on a lesser included offense was necessary, State v. Mayberry, 248 Kan. at 385, required McClanahan to present positive evidence that the killing of Martin was not intentional. That statement in Mayberry is taken from State v. Garcia, 233 Kan. 589, 608-09, 664 P.2d 1343 (1983). Garcia quoted State v. Hutton, 232 Kan. 545, 554, 657 P.2d 567 (1983), which modified a statement from State v. Marks, 226 Kan. 704, 602 P.2d 1344 (1979), that read:
“In order for the evidence to be sufficient to require instructions on lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide.” 226 Kan. at 714.
The confusion arose because the trial court and the parties failed to note that in Mayberry and Garcia neither the State nor the defendants had presented evidence that required an instruction on a lesser included offense. In each of those cases, the State’s evidence indicated that the defendant was guilty of the crime charged. Each of the defendants claimed that he was not guilty of the crime charged. The Mayberry and Garcia courts recognized that if the State’s evidence was that the offense charged was committed, to require an instruction on a lesser included offense, the defendant had to present substantial evidence of a lesser included offense.
Our statements of law in both Mayberry and Garcia were based on the unusual facts of those cases, and they do not constitute a broad principle of law. Our statement in Marks is a statement of the complete rule.
The conflict was resolved recently in Coleman when we noted that the evidence to support an instruction on lesser included offenses does not have to be presented by the defense but may be adduced by either side. Coleman, 253 Kan. 335, Syl. ¶ 6. In Coleman, there was testimony of several versions of the shooting. There was evidence that Coleman did not fire the gun, that it was accidental, or that it was intentional, done with malice or in the heat of an argument. Under those varying theories, all supported by substantial testimony, regardless of the relative strength or weakness of the credibility of the individual witnesses, an instruction on both voluntary and involuntary manslaughter as lesser included offenses of second-degree murder was required.
SECOND-DEGREE MURDER
Second-degree murder is “the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.” K.S.A. 21-3402. The only difference between first- and second-degree murder is that the former requires the element of premeditation.
In arguing that an instruction on the lesser offense of second-degree murder was not required, the State points to State v. (Cain) Dixon, 248 Kan. 776, 787, 811 P.2d 1153 (1991). Dixon had threatened to kill his estranged wife. He had confronted his wife in a violent manner and had obtained a shotgun the day of the killing. He had also spent several hours thinking about shooting his wife prior to forcing his way into the apartment and shooting her three times. Defendant then calmly left, found his wife’s boyfriend, and shot him. We noted that the evidence indicated that Dixon had either acted in self-defense or that the shooting of his wife and her boyfriend was premeditated. Because all the other evidence showed the killing to be intentional, we determined that Cain Dixon’s statement that he wanted to confront the boyfriend and did not intend to kill him, by itself, was insufficient to require an instruction on any lesser degrees of homicide.
In comparing this case and the (Cain) Dixon case, the question is whether there is more evidence to support a second-degree murder instruction than there was in the Dixon case to support giving an involuntary manslaughter instruction.
Two cases with factual similarities, and some dissimilarities, indicate that the trial court erred in failing to instruct on second-degree murder as a lesser included offense. The first is State v. Broadus, 206 Kan. 766, 481 P.2d 1006 (1971). Broadus and his wife were in the process of divorcing. Broadus was under a court order to stay away from his wife’s residence. Broadus, carrying a revolver, broke into the house at about 5:30 a.m. and found his wife in bed with her “known boyfriend.” Broadus shot the boyfriend, who later died, and wounded his wife. Broadus left the house, reentered it, called the police, and reported the shooting.
Broadus was charged with first-degree murder, and the jury was instructed on the lesser included offenses of second-degree murder and manslaughter in the third degree, K.S.A. 21-413 (Corrick) (now K.S.A. 21-3403, voluntary manslaughter), as well as justifiable homicide, K.S.A. 21-404 (Corrick). The Broadus court determined that under the facts the trial court had correctly instructed the juiy on the lesser included crimes. Broadus, however, unlike Roy, readily admitted to intentionally shooting his wife and her boyfriend and told the police he would do it again under the same circumstances.
The other case is State v. (Elbert) Dixon, 252 Kan. 39. Dixon had been living with Marva Bell, but they separated. He went to her residence because he suspected she had someone else at her residence with her. She would not let him in, so he pointed the gun at her and shot her in the chin. Dixon turned himself in and admitted he shot Bell, but told the police that he did not really want to shoot her. Dixon was charged with and convicted of attempted first-degree murder.
Dixon did not testify at trial, but his prior statements to the police were admitted into evidence. Dixon told the officers that he had consumed crack cocaine less than an hour before the shooting, his thought processes may have been disorganized, he believed someone else was at the residence with Bell, and his professed intent was only to scare Bell. He told the police he was scared and that he did' not want to shoot her, but he admitted pointing the gun at her and firing it. Dixon, 252 Kan. at 44-45. The Dixon court held it was error to not instruct the jury on the crime of attempted second-degree murder. In Dixon, as here, there was substantial evidence of premeditation and evidence to support a conviction on the lesser offense.
Even though Broadus and Elbert Dixon had admitted pointing a gun and firing it, in light of the defendants’ statements that their shooting may have been on impulse and not premeditated, we determined in each case that the trial court had a statutory duty to instruct on second-degree murder.
Here there are two different versions of what occurred. The State’s evidence was of the prior threats Roy related to Jim and Teresa that he would kill his wife and her lover if he caught them fooling around, of Roy’s cruising the alley in his blue car until the porch light was turned off, and of Roy’s statement to Josephine that he had already committed one murder that night.
Roy points to his equivocal and contradictory statements that the shooting was not premeditated but an accident and that he did not really remember what happened that night; he also points to the circumstances of his finding another man with his nude wife. Roy denied threatening to kill Josephine and her boyfriend if he caught her “messing around.” He also denied cruising the alley. There was no positive identification by Vanessa that his car was the car in the alley. Roy’s evidence indicates that the killing of Martin was unintentional, not premeditated, and in the heat of passion. Does the evidence reasonably support a conclusion that Roy shot Martin intentionally and maliciously, but not with premeditation ?
In this case, the jury was faced with the alternatives of first-degree murder, a class A felony, and involuntary manslaughter, a class D felony. It did ask for a supplemental instruction on premeditation. If the jury believed the State’s evidence that the shooting was intentional and malicious, but also believed there was no premeditation, it could have found Roy guilty of second-degree murder had it been instructed on that offense. Under these circumstances, it was error not to instruct the jury on the lesser included offense of second-degree murder.
VOLUNTARY MANSLAUGHTER
Voluntary manslaughter “is the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403. The key elements for this offense are whether the killing was intentional and whether there was legally sufficient provocation. See State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991). The trial court, again relying on Mayberry, refused to give the instruction on voluntary manslaughter because Roy had failed to present evidence that the killing was intentional.
With regard to the lesser included offense of voluntary manslaughter, Roy asserts that an instruction was required because the jury could have concluded he killed Martin in the heat of passion. Roy asserts the fact he saw his estranged wife coming out of a bedroom naked and found Martin in the same bedroom is, “by any objective standard,” sufficient provocation. Roy notes the widely accepted rule that a person who kills either his spouse or the spouse’s paramour after finding them in flagrante delicto may be sufficiently provoked to commit voluntary manslaughter. The Georgia Supreme Court has held, under a similar set of facts, that the traditional heat of passion analysis should be applied to determine if the facts rise to the level of sufficient provocation. Burger v. State, 238 Ga. 171, 231 S.E. 2d 769 (1977).
We choose not to follow the rule espoused by Roy. Instead, we agree with the holding in Burger that each case should be analyzed under the traditional heat of passion analysis applied in voluntary manslaughter cases. The Kansas rules for determining whether heat of passion and sufficient provocation existed to support a voluntary manslaughter conviction, set out in State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 (1985), are:
“(1) Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation. . . .
“(2) ‘Heat of passion’ means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. [Citations omitted.]
“(3) In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. [Citation omitted.] In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation. [Citations omitted.]
“(4) The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. [Citations omitted.] In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. [Citation omitted.]
“(5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. [Citations omitted.]”
Whether the provocation is sufficient is an objective determination and must be more than mere words or gestures, and if assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of suffering great bodily harm or at risk of death. Guebara, 236 Kan. at 796-97.
Is there evidence of adequate provocation? The State points out that Roy had no right to be in the residence. Roy and Josephine had separated. If there was provocation, Roy created it by breaking into and entering another person’s residence while armed with a shotgun.
Although he recognizes the facts for the sample instructions are only “somewhat analogous,” Roy cites PIK Crim. 2d 69.01 for support for giving the voluntary manslaughter instruction. In the 3d edition of PIK Crim., the following hypothetical facts are set out: The defendant’s wife was having an affair with the victim. The defendant and the victim had previously fought, and there was “bad blood” between the two. Both were at a tavern drinking when the defendant shot the victim. Some witnesses claimed it was a deliberate shooting. Other witnesses testified there had been a heated argument prior to the shooting. The defendant testified the shooting was accidental and that he only brought the gun to frighten the victim. Under those facts, PIK recommends that the jury be instructed on voluntary manslaughter. Unlike those facts, in this case there is no evidence of prior bad blood between Roy and Martin or evidence of any argument. The hypothetical example in PIK is not sufficiently analogous to have required the instruction on voluntary manslaughter in this case.
Is there substantial evidence to support the conclusion there was sufficient provocation? Roy testified that he “flipped” when he saw his nude wife come out of the bedroom and put on a robe. He denied knowing who was in the bedroom, that he struggled with Martin, or that he and Martin argued. Ginger heard arguing but could not identify who the voices were. The testimony from Josephine and Roy indicates the arguing was between her and him, and nothing suggests that argument rose to a level to be legally sufficient provocation for Roy to kill Martin. Under these facts, there was no duty for the trial court to instruct the jury on voluntary manslaughter.
We note Roy also contends that “[w]hen a question exists as to whether the state has established each essential element of the greater offense, an instruction on applicable lesser included offenses is required.” We disagree. A question of the sufficiency of evidence on the greater offense does not affect the inquiry into the need to instruct on the lesser included offense. The inquiiy is only whether substantial evidence exists to support a conviction on the lesser offense. If a question does exist on an element of the greater offense, the jury is to resolve that question. Such a question, by itself, does not trigger the duty to instruct the jury on any lesser included offense.
ADMITTING EVIDENCE OF PRIOR ABUSE
The State first mentioned the prior physical abuse in its opening argument when it explained to the jury what evidence the prosecution would be introducing. Josephine, in her testimony, twice stated Roy had physically abused her before she moved out of their residence. When Ginger testified, she mentioned the prior physical abuse. Finally, on cross-examination of Roy, the existence of his prior physical abuse of Josephine was elicited without objection.
Roy asserts that because he was charged with the death of his wife’s boyfriend, it was error to allow into evidence any reference to his prior acts of physical abuse of Josephine. The State points out that Roy failed to object to the evidence when it was introduced, that it was part of the res gestae, and that it was not an abuse of the court’s discretion to admit it. Because the matter will be retried, we will disregard the fact that Roy failed to contempoi'aneously object and answer the question of whether it is error to admit this evidence as part of the res gestae or if not, then whether it is an abuse of discretion to admit the evidence.
Was it error to admit the evidence as part of the res gestae? Res gestae evidence is that evidence which does not constitute a portion of the crimes charged but has a natural, necessary, or logical connection to the crime. A good example is contained in State v. Redford, 242 Kan. 658, 666, 750 P.2d 1013 (1988), where evidence of the defendant’s drug dealing and his belief that the victim had stolen from him was admitted as part of the res gestae because it was logically connected to the crimes of aggravated kidnapping and sexual assault of the victim. Another example of res gestae evidence is found in State v. Kee, 238 Kan. 342, 347, 711 P.2d 746 (1985), where the defendant, some 30 to 60 days prior to the theft of a 100-barrel oil tank, had removed the oil from the tank. Although Kee had not been charged with the theft of the oil, the removal of the oil facilitated the subsequent theft of the tank and was part of the res gestae.
Roy’s prior physical abuse of Josephine was not connected to the killing of Martin, either temporally or logically. The Mc-Clanahans had separated several weeks prior to the shooting, and the evidence indicates the abuse occurred before the separation. The killing was connected to Josephine’s relationship with Martin, not to McClanahan’s abuse of his wife. There is no indication Josephine entered into the relationship with Martin for protection from Roy. The trial court’s determination that the prior physical abuse was part of the res gestae was error.
The trial court also admitted the evidence of prior abuse because defense counsel brought up the subject of Josephine’s adultery in voir dire. The State argues that “[i]t was only appropriate for the state to be allowed to tell the jury the real reason why she left the defendant,” i.e., because of the abuse. We disagree. The acts of abuse were not connected to the subsequent act of adultery. The reason Josephine left Roy was not relevant to the shooting.
The final ground for admitting the evidence urged by the State is that in marital homicides or assaults, evidence of a “discordant marital relationship” is admissible independent of K.S.A. 60-455 and requires no limiting instruction. State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991). Roy contends that since he killed Martin and not his wife, this is not a marital homicide case and this ground for admitting the evidence does not apply.
Ordinarily a family bond is present to admit evidence of a discordant relationship. See State v. Taylor, 234 Kan. 401, 673 P.2d 1140 (1983) (wife); State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983) (ex-wife); State o. Crossman, 229 Kan. 384, 624 P.2d 461 (1981) (stepdaughter). Recently this court extended this rule to persons living together outside of wedlock. State v. Young, 253 Kan. 28, 37, 852 P.2d 510 (1993). The condition present in all these cases is the relationship between the defendant and the victim. The evidence is therefore admissible “ ‘to establish the relationship of the parties, [to show] the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the witnesses.’ ” Hedger, 248 Kan. at 820. This evidence also bears on issues of motive and intent. Mayberry, 248 Kan. at 384.
There may be cases involving a third-party victim where evidence of a discordant relationship would be relevant and therefore admissible. However, in this case, other than the fact Josephine was not living with her husband, there was no connection between the prior physical abuse and the relationship between Roy and Martin. Roy’s prior acts of physical abuse of Josephine are not relevant to his motive or intent in shooting Martin. Under the facts, that evidence is not admissible simply because the victim was Martin and not Josephine.
Because the evidence of prior, abuse was inadmissible under any theory, the question of whether admitting it was an abuse of discretion is moot.
Reversed and remanded for a new trial. | [
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Per Curiam:
This is an original attorney discipline proceeding filed by the Office of the Disciplinary Administrator against Annette M. Jackson, a Kansas City, Kansas, attorney duly admitted and licensed to practice law in the State of Kansas.
The complainant in this case is mildly mentally retarded. In 1982, she became employed by General Motors Corporation and worked for six years under the Federal Vocational Rehabilitation Act of 1973. She was transferred to the Fairfax General Motors Plant in Kansas City, Kansas, but was unable to perform newly assigned tasks, was injured on the job, and was dismissed or not rehired by General Motors. The complainant and her mother secured the services of a Missouri attorney to represent her in a handicap employment discrimination action against General Motors. Respondent, Annette M. Jackson, was retained as local counsel for the complainant. The case was tried to a jury. A directed verdict was entered for the defendant at the close of the plaintiff’s evidence. A motion for a new trial was denied by court order entered August 31, 1990. On October 29, 1990, the plaintiff’s attorneys filed a motion for extension of time seeking an extension of the 30-day appeal time based upon excusable neglect in that plaintiff’s attorneys did not receive a copy of the court’s order entered August 31, 1990, until the middle of October 1990. The trial judge sustained the motion and a notice of appeal was filed.
The Tenth Circuit Court of Appeals, however, determined that the trial court had improperly extended the time to file the appeal. Accordingly, the Tenth Circuit held that the filing of the notice of appeal after denial of the motion for new trial was late and the appeal was barred.
Under Supreme Court Rule 116 (1993 Kan. Ct. R. Annot. 118), the duty of local counsel is as follows:
“The Kansas attorney of record shall be actively engaged in the conduct of the matter or litigation, shall sign all pleadings, documents, and briefs, and shall be present throughout all court or administrative appearances. Service may be had upon the associated Kansas attorney in all matters connected with said action, hearing or proceeding, with the same effect as if personally made on the out-of-state attorney, within this state.”
The panel found by clear and convincing evidence that the respondent had violated MRPC 1.1 (1993 Kan. Ct. R. Annot. 258), MRPC 1.3 (1993 Kan. Ct. R. Annot. 263), and Supreme Court Rule 207 (1993 Kan. Ct. R. Annot. 170).
The panel unanimously recommended that respondent be publicly censured for violation of the rules and that costs should be assessed to respondent.
We accept the panel’s findings and recommendation.
It Is Therefore Ordered, that Annette M. Jackson be censured for her previously enumerated violations of the model rules of professional conduct.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Abbott, J.:
This appeal involves whether underinsured motorist coverage is available in this personal injury case. We hold that the appellant, Gulf Insurance Company, has acquiesced in the judgment and dismiss the appeal.
On May 30, 1989, Eugene L. Varner was injured in a motor vehicle collision when the semi-tractor trailer rig he was driving was struck by a pickup truck driven by Walter Giessel. The semi-tractor trailer rig was owned by Varner’s employer, C.F. Mc-Graw, Inc., (McGraw) and Varner was driving it in the scope of his employment. The rig was insured by Gulf Insurance Company (Gulf) at the time of the accident.
Prior to trial Varner settled with Giessel, receiving $100,000, the amount of Giessel’s liability limit under his insurance policy. All defendants but Gulf were dismissed prior to trial.
Gulf requested summary judgment on the underinsured motorist (UM) insurance coverage issue, arguing that McGraw had rejected UM coverage in excess of the statutory limit of $25,000 per person/$50,000 per accident and therefore Varner was not entitled to UM benefits. Gulf’s initial support for McGraw’s rejection consisted of two different rejection forms. The first was a rejection form which the parties ultimately agreed and the court held was effective only in Oklahoma. The second was a rejection form (“the undated form”) discovered in the files of the Dil-lingham Agency, the insurance agency which sold Gulf’s insurance policy to McGraw. That form was discovered on September 15, 1989, and it was not dated nor did it reflect the daté the Dil-lingham Agency received it. The form was forwarded to Gulf on September 15, 1989, although Gulf contends the Dillingham Agency had also forwarded a copy on March 22, 1989. On December 9, 1991, the day before Gulf’s summary judgment motion was heard, Gulf discovered a third rejection form. This form (“the dated form”) was discovered in McGraw’s files and was dated February 10, 1989. The dated form was never delivered to either Gulf or the Dillingham Agency.
The trial court denied Gulf’s motion for summary judgment, holding that material questions of fact existed concerning both the dated and undated forms. The trial judge noted that he could not determine the effective date of the undated form, so it was not clear whether or not UM coverage in excess of the statutory limits had been waived prior to the May 30, 1989, accident. The trial judge also noted that there was a question as to whether the dated form applied to the policy in question and that he was concerned about fraud as to the dated form.
Varner filed his motion for partial summary judgment on the UM coverage issue, and the trial court granted Varner’s motion, holding that both the dated and undated forms were insufficient as a matter of law to constitute a valid rejection of UM excess limits coverage.
Trial was scheduled for June 22, 1992. On June 23, 1992, Gulf and Varner stipulated that Varner’s damages totalled $400,000 and that Giessel was 100% at fault. The parties agreed that Gulf was entitled to a setoff of the $100,000 payment Varner received from Giessel’s insurance. Pursuant to the trial court’s earlier determination that the insurance policy Varner’s employer, Mc-Graw, had with Gulf included UM coverage to the policy limits of $1,000,000, the trial court entered judgment against Gulf and in favor of Varner in the amount of $300,000.
Before the trial court issued its journal entry, Varner and Gulf entered into a settlement agreement. The trial court was not made aware of the settlement agreement. The settlement agreement provided for an immediate payment by Gulf to Varner of $87,500. A second and final payment of $142,500 was made contingent on the outcome of Gulf’s appeal of the trial court’s determination concerning UM coverage. The parties acknowledged Gulf’s intent to appeal that issue. Pursuant to the agreement, all other claims Varner had against Gulf were released, except any “bad faith” claim which may arise and a workers compensation claim. (Gulf also provided McGraw’s workers compensation coverage.) Further, Gulf agreed to waive its right to subrogation of any amount Varner received on his workers compensation claim up to $70,000.
Gulf appealed, and the appeal was transferred to this court on Gulf’s motion pursuant to K.S.A. 20-3017.
This court raised the issue of whether Gulf’s partial payment of the judgment entered against it constitutes acquiescence.
“Acquiescence in a judgment cuts off the right of appellate review. The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment. In order for an appellate court to hold that a party has acquiesced in a judgment, it ’must be shown that the appellant has either assumed burdens or accepted benefits of the judgment contested in the appeal.” Younger v. Mitchell, 245 Kan. 204, Syl. ¶ 1, 777 P.2d 789 (1989).
The rationale for the rule of acquiescence is that a party who voluntarily complies with a judgment cannot thereafter adopt an inconsistent position and appeal the judgment. See Troyer v. Gilliland, 247 Kan. 479, Syl. ¶ 1, 799 P.2d 501 (1990); McDaniel v. Jones, 235 Kan. 93, Syl. ¶ 1, 679 P.2d 682 (1984); Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶ 6, 597 P.2d 1080 (1979).
Gulf contends that its payment of $87,500 does not constitute acquiescence sufficient to cut off its right to appeal. Gulf argues that there were several reasons for its payment to Varner:
"They included avoiding the cost to both parties of a pointless jury trial (when Varner, his counsel, and defense counsel agreed as to the probable jury verdict range and the fact that Varner was without fault for the accident), an inducement by Gulf to Varner ‘to lump-sum’ his workmen’s compensation benefits (which would otherwise leave Gulf with ‘open medical’ and serial, future payments of permanent total disability payments), and providing Var-ner with immediate cash with which to redeem his home and five acres of land in Colorado which was subject to final foreclosure proceedings only days from the conclusion of the Agreement. As is apparent, only one of these primary reasons for the $87,500 had anything to do with the ‘payment’ of the district court’s judgment.”
The reasons Gulf sets forth for entering into the agreement are unpersuasive. Gulf’s position on appeal is that it was not liable to Varner for any payment on UM coverage at all. By paying the $87,500, Gulf has made a payment on the judgment of the trial court. That payment is not contingent on the outcome of this appeal and is nonrefundable. It has been paid. This is an amount Gulf would not owe if it prevails on appeal. Gulf’s payment of $87,500 is a voluntary payment on the judgment of Gulf’s UM liability, no matter what motivation Gulf attributes to the payment.
Gulf argues that it never intended to waive its right to appeal and that “this Court believes that the right to an appeal cannot be waived if a party unequivocally states he does not want to waive it.” Gulf notes that the settlement agreement specifically noted Gulf’s intent to appeal the trial court’s judgment; in fact, payment of an additional $142,500 was made contingent on the outcome of the appeal. Gulf urges this court to hold that payment of a portion of a judgment, even if that portion is not severable, does not cut off the right to appeal if the party has indicated an intent not to give up the right to appeal.
Although the agreement clearly notes Gulf’s intent to appeal and makes payment of $142,500 contingent on the result of the appeal, this does not negate Gulf’s acquiescence. An agreement between the parties that the right to appeal is not waived cannot invest an appellate court with jurisdiction when it is otherwise lacking. In In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, Syl. ¶ 6, 687 P.2d 603 (1984), this court held that “[pjarties may not by stipulation vest a court with jurisdiction over a subject matter of a cause which it would not otherwise have had.” If jurisdiction is lacking, the action must be dismissed. In re Miller, 228 Kan. 606, Syl. ¶ 2, 620 P.2d 800 (1980).
In Brown, 226 Kan. 223, on which Gulf relies, this court held that payment of court costs and a portion of the judgment did not constitute acquiescence. There, however, the portion of the judgment paid was an undisputed amount. This court stated:
“In the instant case the insurance company in its cross-appeal is not attacking the general verdict of the jury and does not now contend that it is not liable under the policy. It also concedes that there is no argument about the amount of its payments to be made to Mrs. Brown during the first five years of her disability. . . . [T]he action of the insurance company in paying such sums as are not in contention on appeal is to be encouraged and it should not be penalized for having done so. Likewise, Mrs. Brown, if she has accepted such payment, should not be penalized. We hold that when a party to an appeal has paid any portion of a judgment rendered against such party, including the costs, such party will not be deemed to have acquiesced in the judgment so long as the issues on appeal cannot affect the payments made and the payment thereof is not involved in the issues on appeal.” 226 Kan. at 231.
The case at bar is distinguishable from Brown. Here, Gulf has not paid an undisputed amount. Gulf’s position on appeal is that McGraw executed a valid rejection of UM excess limits coverage. Should Gulf succeed in its appeal, Gulf would not be liable to Varner at all under its policy; Gulf will owe Varner nothing. Yet Gulf has paid Varner $87,500, an amount which would not be owed were Gulf successful on appeal. Counsel have stated that Varner will not pay back the $87,500 to Gulf should Gulf succeed. The only basis for Gulf’s payment of $87,500 to Varner was its liability for UM excess limits coverage, the very coverage Gulf claims it is not liable for. Gulf has paid a disputed amount and therefore has voluntarily acquiesced in the judgment of the trial court.
This court has stated:
“Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.” McDaniel v. Jones, 235 Kan. 93, Syl. ¶ 2.
See First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, 324, 736 P.2d 909 (1987); Carnes v. Meadowbrook Executive Bldg Corp., 17 Kan. App. 2d 292, Syl. ¶ 1, 836 P.2d 1212, rev. denied 251 Kan. 937 (1992). The payment made by Gulf is not distinct and severable from the issue on appeal. Gulf is appealing liability in its entirety.
Gulf argues that because it did not intend to waive the right to appeal, its payment to Varner should not be considered voluntary. “Whether in a given case a payment is voluntary depends on the facts of the particular case as indicating an intention on the part of the payer to waive his legal rights.” Younger, 245 Kan. 204, Syl. ¶ 4.
The mere statement of an intent not to waive the right to appeal does not make a payment involuntary.
Gulf also argues that this court should join other jurisdictions which recognize public policy encouraging payment to a successful plaintiff even though an appeal is pending. Gulf urges this court to follow those jurisdictions which allow payment on a judgment despite the pendency of an appeal, where the appellee “knows it may be subject to repayment if the appellate court reverses the district court, but the plaintiff accepts the payment knowing this.” Without addressing the case law Gulf points to from these jurisdictions, it is clear that Gulf’s analysis applying these other cases to the case at bar is flawed. Here, counsel for both parties have stated that Varner will not repay the $87,500 if Gulf prevails on appeal.
The law of acquiescence is well established in Kansas. Voluntary compliance with the judgment of a trial court constitutes acquiescence, and where a party is found to have acquiesced in the judgment of a trial court, appellate jurisdiction is lacking and the party’s appeal must be dismissed. Gulf has acquiesced in the judgment of the trial court, and Gulf’s appeal is dismissed for lack of jurisdiction.
Appeal dismissed. | [
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The opinion of the court was delivered by
MARTIN, C. J. :
It was a requirement of §4 of article 15 of the original constitution that all public printing should be let on contract to the lowest responsible bidder ; but in 1868 this section was amended so as to require the work to be done at the capital by a state printer elected by the legislature in joint session, the price for the same to be regulated by law. In pursuance of this amendment, the legislature passed an act, being chapter 78, Laws of 1869, providing for the election of a public printer, and prescribing the duties of his office. He was therein directed, among other things, to “publish in a weekly newspaper to be printed at Topeka all laws ordered to be printed in a newspaper, all proclamations, orders, notices and advertisements” of a defined character. Section 8 of the act divided the state printing into nine classes, and specified the rate of compensation to be paid to the public printer for each. The eighth class was defined as ‘ ‘ all printing ordered and required to be done in a newspaper,” and compensation was prescribed at the rate of $1 per square of 250 ems for the first insertion. and 50 cents per square for each subsequent insertion, but not more than $1 per 1,000 ems for publishing all decisions of the supreme court and the laws. This stood until the enactment of chapter 142, Laws of 1875. By § 5 of said chapter, the state printer was required, between the 1st and 10th of July in every year, to designate some newspaper printed and published at Topeka as the “ official state paper,” and to certify such designation to the secretary of state. The paper was to be designated for one year, and the state printer was to cause to be published therein all laws which should provide for their publication in any newspaper, the official syllabi of decisions of the supreme court, and all proclamations, orders, notices, and advertisements, with certain exceptions therein named. Section 8 of this act divided the public printing into eight classes, and provided compensation to the state printer for each. The seventh class in the act of 1875 corresponded to the eighth class in the act of 1869, but the rate to be paid to the state printer was reduced to 50 cents per square of 250 ems for the first insertion, and 25 cents per square for each subsequent insertion, and not more than $1 per 1,000 ems for the publication of syllabi of decisions of the supreme .court and the laws. The act of 1875 was superseded and repealed by chapter 132, Laws of 1876, but the classification and the rates to be paid for publication in the official state paper remained unchanged.
In 1879, by §104 of chapter 166 of the Laws of that year in relation to state departments, the ex ecutive council was required at its regular meeting in March of each year to designate the official state paper for the year from April 1, next ensuing ; and by § 105 of the same chapter the publications to be made in said newspaper were enumerated, and it was provided that payment therefor should be made by the state “at the rates prescribed by law.” By §133 of said chapter, §§ 1, 2, 3, 4 and 5 of said act of 1876 were expressly repealed, said § 5 being that which required the designation of the official state paper by the state printer. Sections 6 to 18, both inclusive, of said act of 1876 were not expressly repealed, but it is claimed by the plaintiff that all that part of § 8 which regulated the price to be paid for publications in the official state paper was repealed by implication; and on August 5,' 1879, the Hon. Willard Davis, attorney general, gave to the secretary of state his written opinion to that effect, and that such work must be paid for at the rates prescribed by § 17, chapter 39, General Statutes of 1868, which is now published as ¶ 3040, General Statutes of 1889, the part of said section claimed to be applicable., being as follows :
“For publishing any legal notice, or any order, citation, summons, or any other proceeding or advertisement required by law to be published in any newspaper, at a rate not exceeding $1 per square of 250 ems for the first insertion, and 50 cents per square of 225 ems for each subsequent insertion.”
The Kansas Breeze was duly designated by the executive council as the official state paper for one year from April 1, 1895, and it has made certain publications as such which have been paid for at the rates prescribed by said act of 1876, but the plaintiff company, as the owner of said newspaper, claims additional payment based upon said § 17 of the act of 1868.
We are of opinion that the clause in § 8 of the act of 1876, prescribing the rates to be paid for publications in' the official state paper, was not repealed by implication by said act of 1879, but that the same remains in force and governs the compensation to be paid for that service. Repeals by implication, although not forbidden by the fundamental law, are not to be favored, especially, in view of §16 of article 2 of the constitution; and this court said, in the case of Stephens v. Ballou, 27 Kas. 594, 600, 601, that in order to declare any legislation repealed by that method the court “ should be satisfied that such has been so done beyond all reasonable doubt.” The fact that the law was so changed as to vest the power of designation of the official state paper in the executive council instead of the state printer should have little, if any, weight in determining the rate of compensation to be paid for services performed, for in the nature of things the mere change as to the repository of power to make the designation could have no effect upon the rates at which such work could be afforded by the publisher, nor the value of the service to the public. But it is said that under the act of 1876 the compensation was payable to the state printer, while by that of 1879 it goes direct to the publisher. Certainly the latter would have no reason to complain of direct payment by the state instead of indirect requital through the state printer. When it was provided by §105 of said act of 1879 that payment for publications in the official state paper should be “at the rates prescribed by law ’ ’ we think the legislature had reference to those rates then in force, and did not intend to double or quadruple them. Besides, the compensation fois the public printing had never been regulated by the act of 1868, which, was approved before the state had a public printer or an official paper. That act seems to have been intended to regulate the fees and salaries of the several county officers, justices of the peace, constables, notaries public, referees, appraisers, witnesses, jurors, and printers ; but, as to the latter, the county printing and legal notices and work of like character chargeable to private persons must have been chiefly, if not wholly, in contemplation, for, except as to the publication of propositions to amend the constitution, and perhaps some other extraordinary matters, printing done for the state was then let by contract as before stated. It was held by this court, in City of Pittsburg v. Reynolds, 48 Kas. 360, that a city ordinance requiring publication in order to make it effective was not a ! ‘ notice or advertisement ’ ’ within the meaning of chapter 156, Laws of 1891, and if the same rule is applicable to § 17 of chapter 39, General Statutes of 1868, then the question might well arise whether under it the publisher of the official state paper would be entitled to any compensation for printing the supreme court syllabi and the laws, since no specific provision is made therefor in said section, and it being very doubtful whether such work would come within any of the general terms employed therein. The argument in favor of the plaintiff’s contention seems to be based wholly on the two circumstances that the power to designate the official state paper was changed by the act of 1879 from the state printer to the executive council, and that the act of 1876 made the compensation payable to the state printer, while under the act of 1879 it should be paid direct to the publisher of the paper; but neither circumstance would necessarily affect the rate of compensation to be paid ; and when it was provided in § 105 of the act of 1879 that payment should be made “at the rates prescribed by lawT,” we tliinlc it evidence that the legislature meant the rates then in force for publications in the official state paper, there being no apparent intention to repeal that part of the act of 1876. It would be in the nature of a solecism to say that the provision of the statute fixing the rates for this particular work for several years next prior to the act of 1879 was repealed by its implication, notwithstanding the express declaration therein that payment should be made “ at the rates prescribed bylaw.” Instead of a repeal by implication, it appears to be a plain assertion by the legislature, to prevent any misapprehension growing out of the change of power to designate the state paper and- awarding the compensation direct to the publisher in place of the state printer, that the rates then prescribed by law should remain in force.
It was developed in the oral argument that § 105 of the bill as reported to the legislature of 1879 expressly provided that the rates for the printing should be the same as prescribed by the act of 1868 relating to fees and salaries, but this was stricken out and the section was adopted in its present form. This is certainly strong, if not conclusive, evidence that the legislature did not intend to adopt the rates fixed by the act of 1868, but left them to be governed by the act then in force, which remained unrepealed.
The motion to quash the alternative writ will be sustained, and judgment will be entered in favor of the defendant.
AlleN, J., concurring.
JOHNSTON, J. :
I am unable to concur with my brethren in the view that has been taken. In effect it is held that a statute which prescribes the duties and fixes the compensation of the state printer applies to another person in no way connected with that officer, and who performs services not required from the state printer. It is true that prior to 1879 a large share of the printing now required to be done by the publisher of the official state paper was done under the control and direction of the state printer. His work was classified, and a definite rate of compensation was prescribed for each class and kind of work. He was required to designate a newspaper in which all publications required to be printed in a newspaper should be published. The duty, however, of procuring the work to be done was imposed upon him alone, and the compensation was to be paid to him and to no one else. (Laws of 1876, ch. 132, § 8.) In 1879 this duty was taken from him and imposed upon another. All official publications required to be printed.in a newspaper were directed to be published in an official state paper to be designated by the executive council. (Laws of 1879, ch. 166, $105.) By this provision that class of publications was extended beyond what it was when the duty of printing the same devolved upon the state printer. The statute, however, did not provide that the compensation that had been paid to the state printer for the work should be the compensation to be paid to the publisher of the official state paper, and I have heard no satisfactory argument advanced why the compensation of one officer should apply to another, even for the same kind of service, in the absence of an express provision to that effect. It is not uncommon for the legislature to provide that services theretofore performed by one officer, whose compensation is received in fees, shall be performed by another officer who likewise receives compensation in fees ; but wlio would suppose that the legislature-intended that the statutory fees for the former officer should be the rule of compensation for the latter, unless it had expressly declared that to be its purpose'? The law of 1879, after including printing which had not been within the control and direction of the state printer, provided that payment should be made to the publisher of the official state paper at the rates prescribed by lawn At that time there was a general statute on the subject of printing, applicable alike to all newspapers of every class in the state, and certainly broad enough to include the compensation to be paid for the printing and other work performed by the official state paper. (Gen. Stat. of 1889, ¶ 3040.) When the legislature of 1879 took from the state-printer the duty of procuring public newspaper printing to be done, it also took from him the right to receive compensation therefor, and by the clearest implication repealed both the provision prescribing that duty and the one fixing the fees for the performance of the same. The general law relating to fees and salaries is prospective and perpetual in character, and intended to be applicable to all officers and for all kinds of services that may fall within its terms and provisions. The class of printing under consideration is fairly included within its terms, and, in-my view, the legislature intended that to be the rule of compensation for publications in the official state paper. Immediately after the passage of the law the attorney general of the state so interpreted the statutes, and this has been the unvarying construction of the same by his successors in office and by the different incumbents of the office of secretary of state for a period of 16 years. That this rule liad been adopted and acted upon was shown by public opinions and by the public records. With this knowledge the legislature has repeatedly appropriated money to pay for this service at the rate prescribed by the general law, and in that way has approved and adopted the interpretation of the officers who had control of the printing and the appropriations to pay for the same. The fact that this has been the unvarying construction of the executive and legislative departments of the government from 1879 to 1895, although not controlling, is a weighty argument in favor of such a construction. Apart from that, however, I am clearly convinced from the language of the statutes referred to that the legislature did not intend that the fee bill prescribed for the state printer should be the measure of compensation for the publisher of the official state paper. I therefore think that judgment should be awarded in favor of the plaintiff. | [
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The opinion of the court was delivered by
Hoeton, C. J. :
The petitioner alleges that he should be discharged from imprisonment because the evidence fails to show the commission of any offense on his part. (In re Eberle, 44 Kas. 472.). It appears that on Tues-dajl, the 5th of January, 1895, at Spring Hill, in Johnson county, M. S. Johns' obtained of S. B. Swarts, a liveryman, a team of horses, with harness, buggy and robe, saying he wanted the team to go to the Hutchinson schoolhouse. This place was a half a mile north and four miles east of Spring Hill.. Soon afterward F. H. Mutchler came to the barn and asked how much the team would cost if they were back at 1 o’clock on that day. Swarts answered $1.50. Mutchler made arrangements for the payment of that amount. Doctor Stevens, of Spring Hill, was present at the conversation. Thereupon the team was furnished, and Mutchler and Johns got into the buggy and drove away. Instead of going to the Hutchinson schoolhouse, the team was driven to Martin City, in Missouri, about 15 miles from Spring Hill. They reached there about noon of the day they left Spring Hill. Johns put the team in the stable, ordered the horses rubbed down and fed. He then wrote a letter to Doctor Stevens at Spring Hill, requesting him to inform Swarts his team was at Martin City. This letter was placed in an envelope addressed to Doctor Stevens at Spring Hill. It was properly stamped and mailed at the post-office at Martin City, Mo., about 1 o’clock of January 5. It was received at Spring Hill the same day. It was delivered to Mrs. Stevens on Monday evening, January 7. She turned it over to Swarts the same evening. The team was found at Martin City on Tuesday morning, the 7th of January, by William Mullinson, the son-in-law of Swarts, who brought them back 'to Spring Hill on the same day. While neither Johns nor the petitioner intended to go to the Hutchinson schoolhouse when they obtained the team, they had no purpose at that or any other time to steal the property, or to deprive the owner entirely of the same. They merely intended to take the team for a ride, and then leave the property for the owner to get again. They only had possession a few hours. When they had driven to Martin City, Johns put the team in the stable for the owner and notified Doctor Stevens at Spring Hill where the team was, and requested him to inform Swarts what they had done.
If the property had not been left at Martin City for the owner, and if no notice had been sent to him thereof, the making a different use of the property from that contemplated by the hiring.would furnish some evidence that the original intention was felonious and that the hiring was a mere device to obtain the possession from the owner and an opportunity to steal the property. (The State v. Woodruff, 47 Kas. 151.) The conduct of the parties at Martin City rebuts the presumption that Mutchler -meant to deprive Swarts of the property. “A felonious intent means to deprive tlie owner, not temporarily, but permanently, of his own property without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.” Upon the facts there was no felonious intent existing in the mind of Mutchler at the time of the original taking, nor was there any subsequently superadded felonious intent on his part.
The petitioner will be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
It is alleged in the alternative writ of mandamus issued in this case that the plaintiff was, on the 17th day of September, 1895. duly and legally nominated to the office of district judge by the republican judicial convention, held at the city of El Dorado in Butler county, for the twenty-sixth judicial district, including the counties of Butler and Greenwood ;• that a certificate of such nomination in due form was signed by the chairman and secretary of said convention, and presented to the defendant secretary of state, with the request that he file the same ; that the defendant refused to comply with this request, on the ground that Butler and Greenwood counties were by act of the last legislature transferred to the thirteenth judicial district. The writ commands the secretary of state to file the certificate of nomination, or show cause. The attorney general appears on behalf of the defendant, and moves to quash the writ because it does not state a cause of action against the defendant.
Chapter 106 of the Laws of 1895, entitled “An act relating to judicial districts, defining the boundaries of the fifth, eighth, ninth, thirteenth, nineteenth, twenty-fourth, thirty-first and thirty-second judicial districts, and providing for holding terms of court therein, and defining certain duties of the trial court in the nineteenth judicial district, and repealing all acts and parts of acts in conflict with this act,” provides in §7 that “the counties of Chautauqua, Elk, Greenwood and Butler shall constitute the thirteenth judicial district.” Prior to the passage of this act, the twenty-sixth judicial district included only the counties of Butler and Greenwood, and by transferring these to the thirteenth district the twenty-sixth is abolished, because it is left without territory. By changes in the boundaries of other districts the twenty-fifth, twenty-seventh and twenty-eighth districts are also abolished. Chapter 99 of the Laws of 1895 abolishes the fourteenth district in the same manner, and at the same session of the legislature the Shawnee county circuit court was also abolished.
T. The validity of chapter 106 is challenged by the plaintiff on various grounds : First, it is contended with great earnestness that the office of judge of the district court is a constitutional office, which it is beyond the power of the legislature to abolish ; that this act by its terms takes effect on the 15th day of October, 1895, while the term of office of the Hon. C. W. Shinn, the present judge of the twenty-sixth judicial district, will not expire until the second Monday in January, 1896 ; that the constitution protects the district judge in his office for the full term of four years, and that the legislature cannot directly abridge his term, nor indirectly accomplish the same result by destroying his district. It is contended that the judicial department is co-ordinate with and independent of the legislative, and that if the right of the legislature to destroy a judicial district and thereby legislate a judge out of office is recognized, the independence of the judiciary is destroyed, and the legislative will becomes dominant over tlie judicial department of the government. In support of this contention it must be conceded that cases closely in point, decided by eminent courts, are cited. Among the strongest may be mentioned Commonwealth v. Gamble, 62 Pa. St. 343 ; The State v. Friedley, 34 N. E. (Ind.) 872 ; The People v. Dubois, 23 Ill. 445 ; and The State, ex rel. v. Messmore, 14 Wis. 163. We have carefully weighed and considered these authorities, and recognize their full force. While the reasoning of the courts in these cases is applicable to the one now under consideration, we may remark that in each of the cases mentioned the court had under consideration an act of the legislature which would deprive a single judge only of his office, if valid. In this case the legislature had under consideration the rearrangement of the judicial districts covering a large part of the state. Notwithstanding our great respect for the tribunals by which these cases were decided, and the force of the reasoning by which their decisions are supported, we are constrained to give a different construction to the provisions of our own constitution. The provisions in article 3 of that instrument, so far as they affect the matter under consideration, are as follows :
“SbctioN 1. The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process.”
“Sec. 5. The state shall be divided into five judicial districts, in each of which there shall be elected by the electors thereof a district judge, who shall hold his office for the term of four years. District courts shall be held at such times and places as may be provided by law.
“ Sec. 6. The district courts shall have such juris- dictibn in their respective districts as may be provided by-law.
“Sec. 7. There shall be elected in each organized county a clerk of the district court, who shall hold his office two years, and whose duties shall be prescribed by law.
“Sec. 8. There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law, and shall have jurisdiction in cases of habeas corpus. This court shall consist of one judge, who shall be elected by the qualified voters of the county, and hold his office two years. He shall be his own clerk, and shall hold court at such times, and receive for compensation such fees as may be prescribed by law.
“Sec. 9. Two justices of the peace shall be elected in each township, whose term of office shall be two years, and whose powers and duties shall be prescribed by law. The number of justices of the peace may be increased in any township by law.”
“Sec. 14. Provision may be made by law for the increase of the number of judicial districts whenever two-thirds of the members of each house shall concur. Such districts shall be formed of compact territory and bounded by county lines, and such increase shall not vacate the office of any judge.
“ Sec. 15. Justices of the supreme court and judges of the district courts may be removed from office by resolution of both houses, if two-thirds of the members of each house concur. But no such removal shall be made except upon complaint, the substance of which shall be entered upon the journal, nor until the party charged shall have had notice and opportunity to be heard.”
The legislature of 1887 created the twenty-fifth, twenty-sixth, twenty - seventh, twenty - eighth and twenty-ninth judicial districts, and the legislature of 1889 created the thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth and thirty-fifth districts. The acts creating these districts were passed at a time when the development of the resources of the state and the increase in its population were expected to continue with the same rapidity as in the preceding years. Subsequent events have shown that this increase was extravagant and unnecessary, and there came an exceptionally strong demand from the people that some of these needless offices be abolished. The act of the legislature of 1895, now under consideration, was passed in compliance with this demand. The question we now have to consider is, whether this purpose has been accomplished without-any violation of constitutional restrictions. The argument on behalf of the plaintiff, and the reasoning of the courts in the authorities sustaining his contention, may, perhaps, be divided into two main propositions : One, that it was the general purpose of the framers of the constitution to protect the judicial department from legislative interference ; the other, that they intended to insure to the judge a tenure of office for the full term for which he was elected. The one being,necessary for the preservation of the independence and integrity of the judicial branch of the government in the administration of justice between litigants, and the other to preserve the individual right of the judge to his office. That the constitution intends to secure the judiciary as an independent co-ordinate branch of the government is conceded on all hands, and that the district courts are an important part of the judicial system is beyond question. It is contended that because t.he constitution provides for district courts and fixes the term of the-judges and prescribes the mode of their removal from office, their position is fixed, and is as safe from legislative interference as that of the justices of this court; that both are constitutional officers in exactly the same sense and to exactly the same extent; but it will be noticed that, under the provisions of the constitution above quoted, the judicial power is vested not merely in supreme and district courts, but in probate courts, justices of the peace, and such other courts, inferior to the supreme court, as the legislature may see fit to create. Probate judges and justices of the peace are constitutional officers, whose terms are fixed at two years by that instrument. The only provision of the constitution which can be construed as giving superior protection to district judges over probate judges and justices of the peace is that providing for the removal from office of justices of the supreme court and judges of the district courts. The number of the justices of the supreme court, as well as the duration of their terms of office, is definitely fixed by the terms of the constitution. Their original jurisdiction is fixed b}7 the constitution itself, and is coextensive with the state. Their appellate jurisdiction alone is subject to legislative discretion. .The case of district judges and justices of the peace is different in this important particular, that the number of judicial districts, and therefore the number of district judges, as well as the number of counties and townships, and of probate judges and justices of the peace, depend on legislative discretion. The constitution requires á probate judge in each county, but leaves the number of counties into which the state shall be divided to be determined by the legislature, with the single restriction that no county shall include an area of less than 482 square miles. It provides that two justices of the peace shall be elected in each township, but leaves the establishment of town ships entirely to the legislature. If the contention of the plaintiff is sound, it follows as a logical sequence that the legislature cannot abolish a township or county at a time when it will have the effect to shorten the term of office of a justice of the peace, a probate judge, or, indeed, a clerk of the district court.
We think prior decisions of this court have construed our constitution and announced the principles decisive of this case. In the case of Division of Howard County, 15 Kas. 194, it was held that “the legislature has the power to abolish counties and county organizations whenever it becomes necessary for them to do so in changing county lines or in creating new counties.” In re Hinkle, 31 Kas. 712, decides : “The legislature has the power to abolish or destroy a municipal township ; and when the township is abolished or destroyed, the township officers must; go with it.” The doctrine of this case is reaffirmed in In re Wood, 34 Kas. 645. In the case of The State, ex rel., v. Hamilton, 40 Kas. 323, it was said : “There is no constitutional restriction upon the power of the legislature to abolish municipal and county organizations, and the existence of the power is not disputed and cannot be doubted.”
The constitution provides for five judicial districts. It is clear that the legislature cannot reduce the number of districts below five. Section 14, above quoted, provides for an increase of the number, and the concluding sentence of the section is, “and such increase shall,not vacate the office of any judge.” It is argued that the word “increase” should be■ interpreted to include alteration or diminution, and that the real intent of the framers of the constitution was to absolutely protect every district judge against the abolition of his office by the legislature. If so, the framers of the constitution were singularly careless in their selection of words. This we cannot assume without most cogent reasons. If it had been intended to prohibit the -vacation of the office of a judge by the abolition of his district, it would have required but very few words to say so. To vacate the office of a district judge already elected by the people and serving, by an act increasing the number of judges would clearly be, in effect, the removal of a judge from office when his office was not destroyed. To allow the legislature, while making one new district, to legislate the judge of an old district out of office and provide for the appointment or election of two new judges, would clearly be vicious in principle, and this is the class of legislation which falls within the constitutional inhibition. But to prohibit the legislature from abolishing a district which had been improvidently estabished, and thereby vacate the office of a judge, is another and altogether different thing, which the constitution does not in express terms prohibit. While the independence and integrity of courts in the exercise of all the powers confided in them by the constitution should be firmly maintained, jealousy of encroachments on judicial power must not blind us to the just power of the legislature in determining within constitutional limits the number of courts required by the public exigencies, and the kind and extent of the jurisdiction and functions to be discharged by each. We think the legislature has the power to abolish as well as to create, to diminish as well as to increase, the number of judicial districts. We might say, in this connection, that the plaintiff in this case does not claim any vested right in an office, and that no question is presented by the record before us as to the right of the legislature to deprive a district judge of the compen sation allowed him by law. In the act tinder consideration the legislature has seen fit to provide that the act shall not be construed to deprive any judge of his salary for the full term for which he was elected. The claim of the plaintiff in this case rests on the broad proposition that the act in its entirety is void.' The conclusion we have reached is not wholly without siipport from authorities in other states. (Board of Supervisors v. Mattox, 30 Ark. 566 ; Halsey v. Gaines, 2 Lea [Tenn.] , 316 ; Crozier v. Lyons, 72 Iowa, 401.)
If the contention that a judge, when once elected, is entitled not only to the emoluments of his office, but to exercise the functions of his office in the territory for which he was elected, be sound, does his right extend over the whole district, or only over a part of it, and can there be a sound distinction between the right to take away a part of his district and the right to take away the whole? It has never been contended, so far as we are aware, that the legislature is without power to change the boundaries of judicial districts by detaching counties from one and adding them to another; nor has it been doubted that the legislature might "do this during the continuance in office of any judge. That this has the effect of placing the people of the county so transferred from one district to another away from the jurisdiction of a judge in whose selection they have taken part, and under the jurisdiction of another judge in whose election they have had no voice, is clear. The great fallacy, as we view the case, in the argument in favor of the plaintiff and in the cases cited by him, is that the rights of the particular individual who chances to be elected judge are looked upon as paramount and superior to the rights of the public. The correct view is that a public officer, no matter -what the depart ment of the government in which he serves, is a public servant. A district judge is provided to aid in the administration of the laws. While it is right that the public should deal justly with him, his individual rights are by no means of primary importance. The most substantial objection that can be urged against such a transfer as is made by this act is that the people are placed in a district under a judge in whose selection they have had no voice, and who might not have been chosen if all the people in the enlarged district had been permitted to vote at the time of his election. The reasons apply against the transfer of one county with just the same force as against the transfer of all the counties included within a district. Acts of the legislature transferring a county from one district to another have very frequently been passed during the history of the state, and their validity has never been questioned. The only ground on which it can be urged that the legislature might transfer Greenwood county into the thirteenth district, but not Butler, is that the judge of the twenty-sixth district resides in Butler county. This ground is purely personal to the judge. It has no weight whatever affecting the interests of the public.
We need not discuss the question argued at some length in the brief whether there can be a judge without a district, or without a court over which to preside, as the plaintiff in this case has no interest in that question; 'nor shall we attempt to answer the list of questions asked under this head in the brief. It is sufficient for us to say that the legislature had power to transfer Greenwood and Butler counties into the thirteenth judicial district in the manner provided in the act under consideration.
II. It appears that on the final passage of the act two-thirds of the senators voted for it; that in the house it received 83 votes, being one short of two-thirds of the members. It is contended that the constitution requires the concurrence of two-thirds of the members of each house to increase the number of judicial districts, and that there is an implied inhibition on the reduction of the number of districts without the concurrence of an equal number. The general rule is, that laws may be enacted by the vote of a majority of all the members elected to each house. The concurrence of a larger number is only required in cases mentioned in the constitution itself. It is not apparent that the same reasons exist for a two-thirds majority in order to abolish a judicial district, or to change its boundaries, that do for creating one. One of the worst tendencies to be provided against in our system of government is that of constantly creating new offices to be filled, and increasing the salaries of old ones. Those desiring lucrative positions, or public favors of any kind, are constantly pressing their claims on the members of the law-making body, and it was thought wise to require the concurrence of two-thirds of the members of each house as a safeguard against this tendency. Anyone who has observed the obstacles which are invariably thrown in the way of every attempt at the abolition of an office, or reduction of a salary, or the taking away of a special privilege, must be fully aware that no necessity exists for unusual constitutional restrictions on the power to reduce the number of officers, or deprive any person of a salary, or a privilege held to the detriment of the public. When the people are not vigilant, their rights are often easily lost, and regained only with utmost labor.
“ . . . Facilis descensus Averno; Nodes clique dies pcitet atri ¡¡anua Ditis; Sed revocare graduin, superasque evadere ad auras, 1-Toe, opus, Me labor esf.”
III. It is urged that the act is void, because it violates § 16 of article 2 of the constitution; that the title is defective, because it does not clearly express the purpose of the act, does not mention the judicial districts abolished, and includes more than one subject. The first part of the title, “An act relating to judicial districts,” is very broad and comprehensive. Whatever changes are made by the act are effected by so extending the boundaries of the districts named as to include within them the territory of the old twenty-fifth, twenty-sixth and twenty-eighth districts. There is no abolition of these districts by express words, but any person reading the title of the act would be informed that changes of boundaries were made, and of course a change in the boundary, of one district could not be effected without also changing the boundary of another. The contention that, because a clause is inserted in the act making it “the duty of the trial court of the nineteenth judicial district, in assigning the docket, so to group cases arising in Arkansas City and cases controlled by Arkansas City attorneys so they can on motion be tried in succession,” it contains more than one subject, is not good. While this matter is, perhaps, a little remote from the general purpose of the act, it still is.connected with judicial districts. This is not a matter of very great importance, and to hold this whole act void on this ground would seem extremely technical and hypercritical. Nor do we think that greater force should be given to the objection to the last clause of § 4, relating to summoning juries in Dickinson and Morris counties. All these matters relate to judicial districts. It is contended that the construction we have given to the act under consideration makes it amendatory legislation, and therefore void, within the rule followed in The State v. Garney, ante, page 532 (40 Pac. Rep. 926). Every act changing the law is not necessarily amendatory because previous legislation existed on the same subject. An amendment, properly, is a correction of one or more existing defects. It looks to particulars, without disturbing the general framework of the law. But where the legislature has under consideration hot merely minor particulars, but the whole subject-matter of the law, it may wholly annul all former legislation on the subject, and pass an act covering the entire field without specifically naming, or attempting to amend, particular provisions in prior statutes. The new act then becomes a substitute for all former legislation on the subject, and may repeal either in express terms, or by necessary implication, all former sections of the law' inconsistent with the new enactment. Were we to hold the act tinder consideration amendatory of former statutes, and void because the sections amended are not contained in the new' act, and apply the same rule to former statutes, it is very difficult to tell in what judicial districts the various counties named in the act -would be found. Bj’ referring to chapter 147 of the Laws of 1887, by which the twenty-sixth judicial district was created, we find that it does not in terms amend any former law', nor contain even a general repealing clause. It merely creates judicial districts and fixes the terms of court therein, the twenty-sixth district being composed of the counties of Butler and Greenwood. Prior to the passage of that act Butler county was in the eighteenth district, created by chapter 102 of the Laws of 1883, and Greenwood county -was in the fifth. Prior to that time Butler county had been in the thirteenth district, created by chapter 112 of the Laws of 1872, and prior to that time in the ninth. Greenwood county was attached for judicial purposes to Woodson county, which was included in the fifth district in 1801. None of the acts creating the various judicial districts in which Butler county has been included have ever complied with the constitutional requirements of an amendatory statute, and if the act under consideration is void for that reason, the act creating the twenty-sixth judicial district is void also, and no twenty-sixth district has ever existed. It is clear that the statute is not void for this reason.
IV. A final objection is that the act was not signed by the presiding officers of the respective houses within two days after its passage, as required by § 14 of article 2 of the constitution. If the contention of the plaintiff is sound, then a veto power rests in the presiding officers of the two lxohses, which has remained undiscovered from the organization of the state government to this time. It would undoubtedly be a very great surprise to the general public if it were to be declared by this court that the lieutenant-governor and the speaker of the house, by merely delaying for more than two days to attach their signatures to it, could effectually kill a law duly passed by the senate and house. In the case of Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kas. 62, it was held that the failure of the presiding officer of the senate to sign a bill did not invalidate the law, and that the act then under consideration was a law, although never authenticated as such him.
The motion to quash the writ is sustained.
All the Justices concurring.
Note. — Virgil, (iEneid, liber vi, 126-129,) which Dryden freely Englishes thus:
Smooth the descent and easy is the way; (The Gates of Hell stand open night and day): But to return, and view the cheerful skies, In this the task and mighty labour lies. | [
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The opinion of the court was delivered by
Johnston, J. :
The plaintiff brought an action in quo warranto against George A. Clark, who claims to have succeeded her in the office of member of the board of trustees of the state charitable institutions, to determine who is entitled to the office. She has also brought another action of mandamus against three members of that board to compel them to recognize her instead of George A. Clark as a member of such board. The purpose of both proceedings axapears to be to regain the possession of the office formerly occupied by her as a member of the board, and both may be be disposed of upon the same consideration. On February 25,1893, the plaintiff was appointed by the governor as a member of the board, and on February 28,- 1893, the appointment was confirmed by the senate, and she entered at once upon the discharge of her duties as such member. She contends that her appointment was for a full term, commencing April 1, 1893, and ending April 1, 1896. On March 5, 1895, the governor proceeding upon the theory that the plaintiff was only appointed for an unexpired term ending April 1, 1895, appointed George A. Clark as her successor for a full term of three years from April 1, 1895, and his appointment was duly confirmed by the senate. He qualified and entered upon the discharge of his duties on April 1, 1895, and was recognized by the board as the successor of the plaintiff. The nominating message of the governor upon which the plaintiff largely relies in her contention is as follows :
“ I have this day day appointed M. A. Householder,, Mrs. Mary E. Lease and W. S. Wait as members of the board of charities of the state of Kansas, to succeed L. K. Kirk, T. F. Rhodes, and W. W. Miller, and ■would respectfully ask your concurrence in such appointments.”
The persons so appointed by the governor were confirmed by the senate without definitely fixing the succession or tenure of the appointees. At that time it was the province of the governor to appoint at least three members of the board, and probably it was within his power to have appointed four members. L. K. Kirk, who was named in the message, was not then a member of the board. He had previously resigned and Adrian Reynolds had been appointed as Ms successor. The senate not being in session the appointment of Reynolds was not confirmed. W. W. Miller, a member of the board, had been appointed in the absence of the senate, and hence he was holding under an unconfirmed appointment and for an unexpired term. It was the duty of the governor to appoint successors to Reynolds and Miller, whose appointments had not been confirmed. Under the law the terms of two of the members regularly expired on April 1, 1895, and it was also the duty of the governor to appoint two members for the terms beginning at that time. The board under the statute consists of five persons who are to be appointed by the governor with the advice of the senate. It was provided that beginning in 1876 two should be appointed for one year, ending April 1, 1877 ; two for two years, ending April 1, 1878 ; and one for three years, ending April 1, 1879 ; and their successors were each and all to hold théir positions for the term of three years, the terms ending April 1, the succeeding year. ( Law's of 1876, ch. 130, §§1, 2.) In case of vacancies appointments are to be made to fill the same, but only for the unexpired tei'ms ; and when a vacancy occurs when the legislature is not in session, the governor is authorized to make the appointment; but it is provided that the appointee cannot hold longer than the third week after the convening of the next legislature. There has been some confusion in the past with respect to the tenure and succession of those appointed, and it is also manifest in the appointments made in 1893.
The plaintiff contends that the nominating message upon which action was taken by the senate is controlling, and that the arrangement of the names and the grammatical interpretation of the language employed therein make her the successor of T. F. Rhodes, whose term ended April 1, 1893. In her behalf it is argued that the only rational rule of construction which can be adopted is that the names in one series of the message are to be paired with those in the other in the order in which they stand, and that when the appointments were confirmed by the senate the governor was powerless to change the legal effect of the nomination and confirmation. On the other hand, it is contended that the message to the senate is obscure and does not undertake to prescribe when the terms begin and end, and hence we must look to the records in the offices of the governor and secretary o'f state as well as tó tlie commission that was issued to and accepted by plaintiff to determine the tenure and succession of the several persons who were then appointed. The record of the appointment in the governor’s office shows that the plaintiff was appointed for an unexpired term ending April 1,1895. The executive order to the secretary of state directed that officer to issue a commission to tlie plaintiff for the unexpired term. A commission was issued -to plaintiff in accordance with the order, which ivas signed by the governor and countersigned by the assistant secretary of state, and a record of the commission was made in the office of the secretary of state. The commission and the record thereof specified the person to whom issued, the office conferred, with the date and tenure of the commission, showing that the plaintiff was appointed for an unexpired term ending April 1, 1895. The commission so recorded and issued was delivered to and accepted by the plaintiff, and instead of waiting until April 1, 1895, when a regular term would have commenced, she entered at once upon the discharge of her duties, evidently assuming that she had been appointed for the unexpired term. Eor a month or more she served as a member of the board in connection with Rhodes, whom she now claims to have succeeded, and during that time the record of the meetings of the board repeatedly showed that they regarded the plaintiff as having been appointed for the unexpired term, and that M. A. Householder ivas appointed as the successor of T. F. Rhodes. The plaintiff was appointed as president of the board on March 14, 1893, and, as the supervision and signing of tlie records devolved upon her, the recitals with reference to the succession could not have escaped her attention, and it indicates the view which she then held respecting the tenure of her office.
We incline to the opinion that the view presented by the defendants is the better one. If the nominating message to the senate liad specifically and clearly fixed the terms and tenure of the several persons nominated, it might have been controlling, and, if there were no other evidence of the intention of the governor in that respect than the arrangement or sequence of the names in the message, it might be sufficient to determine the terms and succession of the several appointees. The message, however, we have seen, was indefinite and ambiguous, and did not specify the beginning or ending of the terms of those mentioned therein. Kirk, who was named as one whose place was to be filled, was not and had not been a member of the board for several months. No attempt appears to have been made by the senate to have the terms of the several appointees definitely specified before or at the confirmation of the same. If a member of the senate, desiring to learn the terms and tenure of each member named in the message, had gone to the governor’s office, he would have ascertained from the register of appointments that’ the plaintiff was appointed for the unexpired term ending April 1, 1895. There is a claim that this register was purposely mutilated after the appointment was made, so as to give Householder the long term which it is claimed was originally given to the plaintiff, but we think that the testimony fails to sustain this claim. The records may be examined to determine the intention and action of the governor. The statute provides that the governor shall keep a record in his office of his official acts. Then there is a provision that commissions shall be issued specifying the person to whom issued, the office conferred, with the date and tenure of the commission. The commission is to be recorded, after which it is to be transmitted by the secretary of state to the person commissioned. It is also provided that the appointment and commission shall not be deemed to confer any office or right thereto until a bond is given as provided bylaw. (Gen. Stat. of 1889, ¶ 6565.) As the statute contemplates that a record of the action of the governor in making appointments shall be made,, and that a commission shall be issued, they are competent evidence to determine what the purpose and action of the governor was with respect to the terms and tenure of those appointed. An examination of these records leaves no doubt that the governor intended to appoint Householder for the full term of three years beginning April 1, 1893, and to appoint the plaintiff for the unexpired term ending April 1, 1895. There is just as little doubt that the plaintiff herself, as well as the other members of the board with whom she was associated, understood and acted upon the theory that she was appointed for the unexpired term. It appears that at some time another commission was issued to the plaintiff, reciting an appointment for a full term, but this commission, whenever issued, was never delivered to the plaintiff.
Taking all the testimony together, we are constrained to hold that the term for which the plaintiff was appointed expired on April 1, 1895, and that George A. Clark was legally appointed as her suc-cesssor, and is entitled to the possession of the office.
Judgment will, therefore, be rendered in favor of the defendants in each case.
All the Justices concurring. | [
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The opinion of the court was delivered by
JohNstoN, J.:
On August 3, 1895, Joseph S. Kel-lam was arrested by John M. Wilkerson, chief of police of the city of Topeka, upon a charge of selling intoxicating liquors in Topeka contrary to the city ordinances and to the laws of the state. No ■written complaint was ever filed, nor was there any warrant issued authorizing the arrest, but persons whom the chief of police deemed to be reliable had informed him that Kellam was engaged in the unlawful sale of liquors. The chief of police had no personal knowledge that an offense had been committed, but, upon information so received, he alleged that he had reasonable suspicion that an offense had been committed, and therefore he arrested Kellam, and committed him to jail. Kellam thereupon instituted this proceeding, alleging that an arrest without a warrant or other process, upon the mere suspicion of an officer that a misdemeanor had been committed, is illegal.
As an authority and a justification for the arrest, the respondent calls our attention to the following statute, conferring authority upon police officers of cities of the first class :
• “The city marshal or any policeman shall at all times have power to make or order an arrest upon view of an offense being committed, or upon reasonable suspicion that an offense has been committed, with or .without process, for any offense against the laws of the state or of the ordinances of the city, and to bring the offender for trial before the proper officer of the city: Provided, That any person arrested for any offense without process shall be entitled, on demand before trial, to have filed a complaint on oath in writing; and such person shall not at that time be tried for any other offense than that for which he was arrested and for which the complaint shall be filed.” (Gen. Stat. of 1889, ¶623.)
In pursuance of this statutory provision, the city has enacted an ordinance which provides that policemen may arrest, with or without warrant, all persons found in the act of violating a law or ordinance, or in any manner disturbing the peace and good order of the city or any of its inhabitants. It also authorizes them to ‘ ‘ arrest all persons found under Auspicious circumstances, who cannot give a good account of themselves.”
[The statute quoted certainly purports to give police officers power to make arrests, without warrants or other process, upon the mere suspicion that misdemeanors have been committed. But can such authority be constitutionally given? Ve think not. The liberties of the people do not rest upon so uncertain and insecure a basis as the surmise or conjecture of an officer that some petty offense has been committed. In §15 of the bill of rights it is ordained that “ the right of the people to be secure in their jjersons and property against unreasonable searches and seizures shall be inviolate,” etc. This provision guarantees protection against unreasonable arrests, and when it was placed in the constitution, and in fact ever since that time, an arrest for a minor offense without a warrant, and not in the view of the officer, was deemed to be unreasonable and unlawful. Under the common law arrests without warrants were not permitted, except for offenses committed-in the view of the officer ; and in cases of felony actually committed the officer might also arrest without process upon a reasonable suspicion. The liberty of the citizen was so highly regarded, however, that the officer arresting the supposed felon without warrant must have acted in good faith, and upon grounds of probable suspicion that the person arrested was the actual felon. Felonies were excepted on account of the gravity of such offenses, and because the public safety and the prompt apprehension of criminals charged with offenses so heinous seemed to require that such arrests should be made without warrant. The powers of officers to make arrests have,been extended to some extent by statutes but it is generally held that officers cannot be constitutionally clothed with authority to arrest without warrant for minor offenses not committed in their presence or vievn}i( Pinkerton v. Verberg, 78 Mich. 573 ; Robison v. Miner, 68 id. 549 ; Shanley v. Wells, 71 Ill. 78 ; Jamison v. Gaernett, 10 Bush, 221; The State v. Freeman, 86 N. C. 683 ; Doering v. The State, 49 Ind. 56 ; 11 Cent. L. J. 331; 1 Am. & Eng. Encyc. of Law, 732 ; 7 id. 675.)
In considering the question of an officer making an arrest without a warrant for a misdemeanor committed at a past time, the supreme court of Michigan said :
.“Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the" peace committed in his presence or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our constitution guarantees. These are rights which existed long before our constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land.” (Pinkerton v. Verberg, supra.)
In the same case it was ’said :
‘ ‘ If persons can be restrained of their liberty and assaulted and imprisoned under shell circumstances, without complaint or warrant, then there is no limit to the power of a police officer. ’ ’
\ Our constitution not only provides that the right of the people to be secure against unreasonable searches and seizures shall be inviolate, but it also declares, in the same section, Shat no warrants shall issue but on probable cause, supported by oath or affirmation. In interpreting that provision this court has held that it is only declaratory of the fundamental rights of the citizen, and is intended to protect him in his liberty and property against the arbitrary action of those in authority, and that a warrant based on a complaint verified only on information -and belief is insufficient, and an arrest upon such a warrant is illegal. It was also said that “if no warrant issue but upon probable cause supported by oath or affirmation, the support must be more than hearsay or belief.” (The State v. Gleason, 32 Kas. 245.) If an arrest cannot be made or justified on a warrant resting only on hearsay or belief, how can an arrest for a petty offense without a warrant upon the mere sus picion of on officer, not resting even on hearsay or belief, be justified? He may be irresponsible, have heard only an idle rumor, and may be actuated by malice or some other unworthy motive, and to give an officer unlimited authority to arrest without a warrant in all cases, upon mere suspicion, is unreasonable, and a clear infringement of the constitutional rights of the peopleT~~| It is, in effect, a revival of the odious general warrants, which placed the liberty of every man in the hands of every petty officer, and which long ago received judicial condemnation. To prevent their use and the exercise of such arbitrary power at the discretion of an officer, "it has not been deemed unwise to repeat in the state constitutions, as well as in the constitution of the United States, the principles already settled in the common law upon this vital point in civil liberty.” (Cooley, Const. Lim. 364, and notes.)
We readily conclude that the statute in question, which undertakes to authorize an officer to make an arrest in cases of misdemeanor without a warrant, except upon view of the offense, is unconstitutional, and for that reason the arrest of the petitioner must be held to be illegal.
The petitioner will be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
This action was brought by the administrator of the estate of Frank M. Dole, deceased, to recover $10,000 as damages for causing the death of said Dole by the negligence, as it is claimed, of the railroad company. There were but two eye-witnesses who testified with reference to what occurred at the time Dole was killed. It appears that he ivas riding in a spring wagon drawn by a team of horses going from his home to Beeler. The road on which Dole was traveling was on the south side of the railroad, running nearly parallel with it for some distance, then turning and crossing to the other side of the track. An east-bound mixed freight and passenger train approached, running at the rate of about 30 miles an hour as he neared the crossing. The whistle was sounded at the whistling-post, which was distant about 1,000 feet from the crossing, but appears not to have attracted Role’s attention. When the engine was in the neighborhood of 700 feet from Dole the engineer saw him and sounded the whistle again. The team thereupon became excited and started to run.. The engineer testified that at the time he first saw Dole, he was sitting with his head thrown forward, and he thought the lines must have been resting on his knees. When the horses started he.tried to control them, but was unable to do so. The testimony of the engineer was to the effect that he appeared to be holding his lines too slack. It is clear from all the testimony that Dole tried to control his team-, but was unable to do so, and. it ran forward, turned and crossed the track. The engine struck between the horses and the wagon, throwing the horses to the north and the wagon and Dole to the south, causing the death soon afterward both of Dole'and the horses. The only testimony as to what was done by the engineer toward stopping his train prior to the accident, is that of the engineer himself. He testified that he shut off the steam and applied the air-brakes as soon as he determined that the team was going to cross the track ; that he came to this conclusion when it turned toward the track, and that he did all he could after that to avoid the injury. The road along which the deceased was traveling was unfenced, and the ground on the south side of the road was smooth, and offered no obstruction to the passage of a team at any point in the opposite direction from the railroad. -The jury rendered a verdict in favor of the plaintiff for $10,000. In answer to a special question, they find that the negligence of the engineer consisted in not using the appliances for stopping the train in time. The plaintiff in error strenuously insists that under the testimony there is an utter failure of proof of negligence; that the engineer had a right to rely on the ability of Dole to keep his team away from the track, it appearing conclusively that there was no obstacle preventing him from turning his team away from the railroad onto the prairie, and that he had a perfect right to proceed without stopping until something indicated that it was likely to cross the track; that as soon as he had any reason to believe that it would cross the track, he in fact did everything he could to prevent the accident, and is, therefore, not chargeable with any negligence whatever. It is also contended that Dole was himself negligent; that he knew the time when the train would be due; was familiar with the road; that he could have seen the train approaching for nearly a mile, yet does not appear to have kept any lookout; and that he did not keep watch of his team and such hold of the reins as a prudent man would when about to cross a railroad-track at the time a train was due. The defendant in error contends, however, that the evidence fails to show culpable negligence on Dole’s part; and that it was the duty of the engineer, as soon as he saw that Dole’s team was unmanageable, to have at once applied the brakes and slackened, at least, the speed of the train; that if he had done so, and retarded its progress, even to a very slight degree, the team and man would have passed in safety; that the movements of a frightened' team cannot be foretold, and that the engineer could and ought to have applied the brakes, and, if necessary, reversed the engine, before it became certain that the team was about to cross the track.
The time intervening between the starting of the team to run and the accident was so very brief that there was no time for deliberation by anyone, yet in the management of a train of cars running at a high rate of speed, promptness of decision and rapidity in using the proper appliances to avoid danger and prevent accident are necessarily exacted of an engineer. Whether he ought to have applied the brakes as soon as he saw that the team was unmanageable, or might properly wait until it was evident that it was about to ■cross the track, is a question as to which differences of opinion may perhaps be entertained. If so, the question should be submitted to the jury. Though the question appears to us not wholly free from doubt, we are unable to say, as a matter of law, that the engineer was free from fault • nor can we say, as a matter of law, that negligence on the part of the deceased is established. That question also was one proper for the consideration of the jury.
Error is alleged in the admission of the deposition •of the engineer, George T. Craig, because it appears that Craig was in the county at the time of the trial, and had already been sworn as a witness on behalf of the defendant, and excluded from the court-room during the examination of the. other witnesses by order of the court. These facts were shown before the deposition was read, but the objection was overruled'on the ground that the witness was a non-resident of the county. In this the court erred. (Fullenwider v. Ewing, 30 Kas. 22.) The cases of Waite v. Teeters, 36 Kas. 604, and Eby v. Winters, 51 id. 777, differ from this in the important particular that it did not appear in those cases that the attendance of the witnesses could be procured at the time the deposition was offered, while in this he was actually in attendance, had been sworn, and afterward testified. The witness, however, was called by the defendant, and testified orally, and more at length than by the deposition. There is little, if any, conflict between the deposition and the oral testimony, and on the whole Craig’s testimony on the witness-stand is rather more favorable to the plaintiff, because more full and explicit, than his deposition. This renders the error 111 the admiSSlOll 01 the CiepOSltlOll x immaterial, and especially so in view of the fact that the oral testimony was given at the instance of the defendant, and the repetition of his statements resulted from placing him on the witness-stand.
The seventeenth instruction given by the court and excepted to by the defendant reads as follows :
“If the negligence of the deceased, Frank M. Dole, was only slight, or the remote cause of the injury, the plaintiff might still recover, notwithstanding such slight or remote cause, and such slight negligence would not defeat plaintiff’s right to recover in this case, although the same contributed to the death of the said Frank Dole.”
This instruction is erroneous. If Dole was negli-' gent, it is perfectly clear -that his negligence contributed directly and proximately to the injury. Under the findings of the jury the charge of negligence, either on the part of the engineer or of Dole, must be confined to a very brief period of time immediately preceding the accident. On the part of the engineer, according to his testimony, it was only about 20 seconds from the time he first saw the deceased till the accident happened. Oh the part of Dole, his negligence, if any, consisted in failing to discover the train earlier than he did, or in failing to have a firm hold of the lines or take other necessary precautions as he approached the crossing. There is no testimony indicating that he did not do his best to control the team after it became frightened. If there was negligence on his part, it was not quite as near in point of time but was sufficiently proximate and as directly contributory to the accident as that of the engineer, if he was negligent. In a case of so much doubt and nicety as this under the testimony, the error in giving this instruction cannot be overlooked nor disregarded. A verdict has been rendered for the full limit of a recovery on account of death caused by the wrongful act of another. The jury ought to have considered the conduct of the deceased with the same degree of care that they did that of the engineer, and if they determined that he failed to use ordinary care in the particulars mentioned they should have rendered a verdict for the defendant. The error in giving this instruction is emphasized by the eighth, ninth, tenth and eleventh special findings, in which the jury say that Dole knew the time of the passage of the train ; that it was visible to a man on a wagon near the road crossing for at least a mile west of the crossing, a,nd that if he had taken the necessary precaution he could ■have ascertained that there was a train approaching prior to the time his team took fright. In the case of the A. T. & S. F. Rld. Co. r. Plunkett, 25 Kas. 188, it was held, that —
“ It is misleading and erroneous for the court to instruct the jury that negligence remotely contributing to the injury is not material, when in fact, if there was any negligence at all, it was clearly direct and proximate, and not remote or far removed from the injury.”
Complaint is also made of the repetition at three different places in the charge of the court of the statement that “it is negligence in itself for a railroad company to fail to sound the whistle of its engine three times at least 80 rods before crossing the public highway.” By this repetition undue prominence was was given to this matter, but it does not seem to have influenced the jury as they based, their verdict on other grounds.
We deem it unnecessary to discuss the question as to the measure of damages, as the matter must again be submitted to another jury because of the erroneous instruction.
The judgment is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
JoHNSTON, J. :
Susanna Frazer brought an action against The Chicago, Kansas & Western Railroad Company to recover for the death of her son, J. H. Frazer, who, she alleges, was killed while a passenger on a railroad-train of the defendant, by reason of the company and its servants running their train in a careless, reckless and wanton manner, and with gross negligence, into an obstruction which was upon the railroad-track. On July 13, 1887, the Chicago, Kansas & Western railroad was in process of construction, and had been completed from Great Bend to_ Dighton. Construction-work was going on beyond Dighton, and the railroad-track was then laid as far west as Scott City, but the road had not been opened by the company for either freight or passenger business beyond Digh- ton. The only trains in operation from Dighton to Scott City were construction-trains, used for carrying employees and material, and those in charge of these trains were directed not to receive or carry any passengers upon them. Notwithstanding this direction, those in charge of the construction-trains sometimes received passengers and collected fares, but the money so received was never accounted for nor paid to the company. On the evening of -July 13, 1887, J. H. Frazer boarded what is called the swing- or construction-train, loaded with material, at Dighton. H,e rode in a caboose which was attached to the train, and which was occupied by employees and a few passengers. He was aware of the fact that the road was unfinished and under construction, and he was aware that the company was not operating passenger-trains on that part of the track, and that the railroad was not open for business further west than Dighton. About five or six days before, track had been laid as far as Scott City, but no depot had been built, nor any station conveniences provided. The Missouri Pacific Railway Company was then building a branch road through that section of the state, and it crossed the Chicago, Kansas & Western railroad at Scott City. On the evening of July 13, 1887, a permanent crossing liad not been built, but, instead, temporary provision was made for crossing on the top of the rails of the Chicago, Kansas & Western railroad, and this temporary crossing was in charge of the Missouri Pacific employees. The construction-train on which Frazer rode that, evening reached Scott City after dark. It was run past the point of intersection with the Missouri Pacific railway, up to a temporary stopping-place, on the outskirts of Scott City, where the train was met by a 'bus and a dray for the transfer of passengers and baggage to other parts of the town. The train remained at this stopping-place for 25 minutes, and most, if not all, of the passengers and employees left tiie train. It appears that Frazer did not ride up town on the first trip, because there was not room for him and his trunk upon the ’bus, and parties -who were present heard the ’bus-man agree to return for him. One of the trainmen, after examining the caboose to see whether all had left there, and finding it empty, as he said, locked the same. A different crew of men then took charge of the construction-train, and started to back it down to the other side .of the Missouri Pacific crossing, which appears to have been about three-quarters of a mile east of Scott City. It appears that, after the construction-train had first passed the intersection with the Missouri Pacific, the temporary crossing had been laid down for a Missouri Pacific train and left there, and the construction-train, which was being backed at the rate of about seven miles an hour, ran into the crossing and wrecked the train. The caboose and several other of the cars were thrown from the track, and Frazer was found dead a short distance from the wreck of the caboose. His mother, who is the next of kin, brought this action, and at the end of the trial the jury found against the company, and awarded damages to her in the sum of $5,000.
From the testimony, it appears that the conductor, in opposition to his instructions, sometimes carried passengers upon the construction-train, and in answer to a special question the jury found that Frazer paid the conductor for his ride from Dighton to Scott City. As the conductor is the representative of the company and the manager of the train, his action in receiving passengers upon a construction-train of the company and collecting fare from them would ordinarily entitle them to the rights of passengers, and to such care and attention as can reasonably be given them upon such a train. The fact that the conductor may have carried passengers without authority from the company and contrary to the instructions given him, will not relieve the company from liability for the failure to exercise due care toward those so received as passengers, unless they knew they were riding in violation of the rules of the company and had willfully joined with the conductor in committing a wrong against the company. Where a person is received as a passenger and pays his fare to one in charge of the train and with apparent authority, without knowledge of any limitation of his authority, such person is justified in assuming that the company occupied the position of a carrier, and would exercise toward him such vigilance and care as the circumstances would permit. The failure of those in charge of the train to exercise that degree of care renders the company liable for resulting injuries to such persons so long as the relation of passenger and carrier exists. In this case, however, that relation only existed between the company and Frazer until the construction-train reached Scott City. When he had been safely carried to his destination, and to a point which was then the end of the road, and had been afforded almost half an hour to leave the train, the company no longer owed bim any duty as a passenger, nor was it under any obligation to him as such. It is not claimed that there was any omission of duty toward him until after he reached his destination, nor until his rights as a passenger had terminated; and yet the court charged the jury at length upon the duty of the company toward passengers, and held it to the use of the utmost care and skill within the scope of human foresight and human knowledge in the operation of its railroad, and liable for the slightest negligence on the part of its servants and agents. In view of the testimony in the case, instructions of this character were unwarranted and were probably misleading. After the train had arrived and abundant time has been given him to leave it, he could not be regarded as a passenger, nor entitled to the extraordinary care that is due to passengers. Although it was not necessary, the men in charge of the train examined to see if all had left the train and finding no one upon it the caboose was closed and locked for the night, and although the jury found that the brakeman who made the examination knew that Fra-zer remained on the train we can discover no testimony to support that finding. He was undoubtedly upon the train when the accident occurred, but on what part of the train he may have been is not shown, and the finding of the jury is that immediately prior to the wreck he was “in or about the caboose.” Frazer was probably on some part of the construction-train when the new crew of men took charge of the same to back it over the crossing, but tlifere is no testimony whatever that any of them knew of his presence on the train, and the jury so found. In the absence of knowledge to the contrary those men had a right to suppose that all passengers had left the train long before that time ; and if he was upon the train without their knowledge it is -difficult to find that they were guilty of any negligence toward him. If he was a mere trespasser the company owed him no duty except that it should not wantonly or willfully injure him ; but such negligence cannot be attributed to the company unless they knew of his presence upon the train. Under the circumstances we think the instruc tion was misleading and erroneous. ( Railroad Co. v. Wheeler, 35 Kas. 185 ; Railroad Co. v. Berry, 53 id. 112. See, also, Davis v. Railway Co., 18 Wis. 185; Imhoff v. Railway Co., 20 id. 362; Jenkins v. Railway Co., 41 id. 112; Hurt v. Railway Co., 94 Mo. 255; Railroad Co. v. Slatton, 54 Ill. 133; Railway Co. v. Brooks, 81 id. 245.)
The error of the court was emphasized by another instruction that it- was the duty of the company to provide a suitable depot and platform for the accommodation of passengers boarding and alighting from their trains, and any failure on the part of the defendant to provide such depot and platform, if carrying passengers, would be negligence on the part of the defendant. The fact that the road was unfinished was obvious to everyone, and Frazer was undoubtedly aware of its condition when he took passage upon the construction-train at Dighton. The track had just been laid into Scott City, and 'there had not been sufficient time to build a depot or provide station facilities at that point. Having a knowledge of the incomplete condition of the road, the company did not owe him the duty to have a suitable depot and platform at Scott City, and the absence of the same cannot be regarded as negligence toward him.
The finding that the deceased was on the train with the consent and knowledge of the brakeman, Markell, is not supported by the testimony, and it is difficult to find evidence to sustain some other of the special findings returned by the jury.
For the errors mentioned the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
The Chicago, Burlington & Quincy Railroad Company owns and operates a railroad in Norton county, and in the year 1894 the railroad property was assessed by the state board of railroad assessors. The other property within the county was assessed by the local assessors, and the assessment so-made was subsequently equalized by the county board of equalization. Immediately after the board had completed its labors, the county clerk prepared an abstract of the assessment rolls of the county and forwarded it to the state auditor, who laid the same before the state board of equalization. In equalizing the valuations, in order to determine the amount of state- taxes which each comity should contribute, the state board of equalization ordered a reduction of 21 per cent, of the assessed valuations of Norton county, but the valuation of railroad property was found not to be excessive, and ivas allowed to remain as it was originally assessed by the state board of railroad assessors. A certified report of the action of the state board of equalization was made to the county clerk of Norton county, and at a meeting of the board of county commissioners on August 20,1894, the county clerk presented the report of the action of the state board of equalization, when it was determined to adopt the reduced valuation as a basis in making the levies for all purposes, and the county clerk was directed to reduce the valuations on the tax-rolls as a basis for local levies. This order, however, had not been entered of record at the time this proceeding was begun. In October the railroad company brought an action against the county clerk and county treasurer to enjoin them from using the reduced basis in the collection of taxes, alleging that the reduction was unauthorized and illegal, and if used would result in an increase of the taxes upon railroad property. The court denied the injunction, and the railroad company complains.
The state board of equalization has undoubted power to correct errors in the valuation of property, and in order to equalize may increase or diminish the assessments made by the assessing officers of the several counties of the state. It is the duty of the auditor to report the action of the state board to the county clerks of the state, and the statute provides that ‘ ‘ whenever the valuation of any county is changed by the state board of equalization, the board of commissioners of such county are authorized to use the valuation so fixed by the state board as a basis in making their levies for all purposes.” (Gen. Stat. of 1889, ¶ 7014.)
There is no complaint that the action of the state board was' illegal or inequitable, and it is conceded that it was within the discretion and power of the county commissioners to accept the reduced valuation, and adopt it as a basis in making county and all other local levies. It is contended, however, that while the county commissioners are authorized to adopt the valuation made by the state board, they must take it exactly as it was fixed by that board, and any deviation from that basis rendered their action illegal. If that be true, in what way was the railroad company injured? It is true a reduction in the valuation of property other than railroad property correspondingly increases the burden to be placed upon railroad property. A reduction of 21 per cent., however, was authorized by statute, and is confessedly proper and legal. The county commissioners, it appears, ordered a reduction of only 20 per cent. The reason for making a 20 per cent, reduction is not shown, but it is intimated that it was done because there would be less difficulty in the making of computations, and in extending the changed valuation upon the tax-roll. However that may be, it is clear that the railroad company has no cause for complaint. The slight departure from the basis fixed by the state board resulted to the benefit of the company. If the county commissioners had heeded the objection of the company, and had corrected the error by making a reduction of 21 per cent., it would have enhanced the rate and amount of taxes to be charged against railroad property. It is not charged or shown that there was any bad faith or partiality in the action that was taken, and the mistake does not prejudicially affect the rail road company. An error in the assessment is no ground for interrupting the tax machinery of the county at the instance ,of a taxpayer who is not injured by the error. . It is not enough that the taxing officers have violated or are about to depart.from the strict rules of law in performance of their duties, nor will a court of equity interfere by injunction to prevent a mere theoretical injury. The plaintiff is not authorized to institute proceedings for the protection of the public, and an injury which does not seriously affect nor injure it furnishes no ground for equitable interference.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MartiN, C. J. :
I. The record in this case is very unsatisfactory in form. It purports to be from beginning to end, including the judgment and the notice of appeal, only a bill of exceptions, thus apparently excluding the idea that there would be any record in the case except for the bill of exceptions. It even contains the original signature of the judge, although it is certified by the clerk as a transcript of the record'. We would probably be justified in dismissing the case, but, as no point is made on the form of the record by counsel for the state, we have concluded to look into it.
II. The defendant was charged with stealing a hog of the value of $10, being the personal property of H. M. Knox, on January 15, 1895. He was convicted at the February term, 1895, and sentenced to imprisonment in the penitentiary for two years and a half. The evidence tended to show that the hog was stolen and killed by David Fluke, James Davis and the defendant’s son in the night-time, and that it was thereafter taken to the defendant’s house., where it was dressed, and that the next morning the defendant assisted in cutting it up and concealing it in a barrel of shelled, corn. It is claimed that the evidence does not show that the defendant either counseled, aided or abetted in the original taking of the hog, and when it was brought to -his house it was not the subject of grand larceny without respect to value, having been at the time transformed into pork. If the record should, plainly show that we have all the evidence before us, there might be force in this claim, but it is not affirmatively shown that the record contains all the evidence ; hence he may have counseled, aided, or abetted the taking, and, if so, might lawfully be charged, tried and convicted as if he were a principal. (Code, Grim. Proc., §115.)
III. The defendant complains of the following instruction :
“If, therefore, in this case you should find beyond a reasonable doubt that the defendant, Joseph Lewal-len, conspired and confederated with other persons for the commission of the crime alleged in the information, and that he did in any way aid or abet in its commission, either by counsel, assistance, or concealment, then he is guilty as though he had himself, without assistance, committed the offense.”
In commenting upon this instruction, counsel for the defendant say:
“Under the circumstances of this case, the above instruction authorized the jury to convict the defendant of a felony where there was no evidence showing any connection of the defendant with the original taking.”
We do not take this view of the instruction. It only authorized the jury to convict if they found beyond a reasonable doubt that the defendant conspired and confederated with other persons for the commission of the crime, and that he aided or abetted in its commission, either counseling, assisting, or concealing.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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11,
49,
-98,
-29,
46,
30,
-61,
41,
44,
75,
61,
112,
-15,
62,
-51,
77,
18,
-78,
38,
-70,
5,
-38,
46,
-104,
49,
3,
-8,
115,
-106,
-122,
84,
77,
-87,
13,
98,
34,
17,
93,
-17,
40,
-52,
45,
126,
-99,
-89,
-104,
72,
75,
64,
-98,
-99,
54,
80,
-89,
122,
-25,
29,
-99,
108,
1,
-113,
-108,
-77,
75,
60,
-98,
107,
-21,
35,
37,
117,
-51,
-22,
77,
101,
80,
27,
-114,
-106
] |
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