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The Kansas Supreme Court released the following published decisions today:

Friday, September 6, 2019  
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Appeal No. 114,403: Sage Hill v. State of Kansas

Archived oral argument video

The Supreme Court expanded the scope of employment retaliation claims in the state by ruling that an employee can sue an employer for job transfers and other actions that could dissuade a reasonable person from exercising rights under the Kansas Civil Service Act. The ruling reversed a Court of Appeals decision that said employment retaliation claims should be limited to firings and demotions. The decision came in a case brought by Kansas Highway Patrol Trooper Sage Hill, who alleges the Patrol retaliated by requiring him to move across the state to keep his job after the Kansas Civil Service Board ordered the agency to reinstate him to work after he was fired.

"We hold the common-law tort of retaliation may be premised on an employer's action short of dismissal or demotion, such as the involuntary job relocation alleged in this case," wrote Justice Dan Biles for the court majority. "To hold otherwise would undermine the purposes supporting common-law job retaliation claims and the important public policy expressed in the Kansas Civil Service Act."

Justices Caleb Stegall and Marla Luckert dissented, arguing the Patrol was immune from the claim regardless of its merits. The case now returns to Shawnee County District Court for further proceedings.

Appeal No. 118,239: Northern Natural Gas Co. v. ONEOK Field Services Co., LLC, et al

Archived oral argument video

In a 5-2 decision, the Supreme Court ruled in favor of Northern Natural Gas Company in a decade-long dispute over the right to produce Northern's natural gas that migrated from Northern's underground storage facilities to property owned by others. The court's ruling addressed gas produced after June 2, 2010, when Northern received permission from the Federal Energy Commission to expand its storage area. In an opinion written by Justice Dan Biles, the court majority held that once the new boundaries were certified, landowners could no longer continue producing and selling the migrated gas from wells within the new boundaries. The case now returns to Pratt County District Court for further proceedings.

Justices Lee Johnson and Caleb Stegall dissented, arguing the migrated gas belonged to the landowners until Northern could legally condemn the storage rights and pay the landowners for those rights. The controversy has been in litigation since 2008 in both state and federal courts.

 

Appeal No. 114,589: State of Kansas v. Giosbel Perez-Medina

Archived oral argument video

The Supreme Court affirmed a Court of Appeals decision affirming Perez-Medina's aggravated battery conviction by a jury in Ford County District Court. During a party at Perez-Medina's Dodge City home, Perez-Medina grabbed Ivan Valcarcel-Arias from behind and cut Valcarcel-Arias' cheek with a knife. After conviction, Perez-Medina received a 41-month prison sentence and 36 months of postrelease supervision. He was also ordered to register as a violent offender under the Kansas Offender Registration Act.

On appeal to the Court of Appeals, Perez-Medina raised multiple issues. The court concluded that none of the issues warranted reversal of his conviction or sentence. Perez-Medina petitioned the Supreme Court to review the decision, and the court granted the request.

Perez-Medina argued that the district court should have instructed the jury on the lesser crime of reckless aggravated battery, in addition to the charged crime. For purposes of the appeal, the court assumed that it was error to not instruct on the lesser crime but concluded that any error was harmless. Based on the evidence presented at trial, the jury did not have a competing narrative of reckless action to allow it to reach the conclusion that Perez-Medina had acted recklessly. An equally divided court also affirmed Perez-Medina's registration requirement.

 

Appeal No. 115,628: In re Estate of Roxie A. Moore, deceased

Archived oral argument video

In the presence of witnesses, a woman asked her former daughter-in-law to sign, on the woman's behalf, a transfer-on-death deed assigning real property to the former daughter-in-law. The woman died, and her son challenged the validity of the transfer-on-death deed. The Cowley County District Court upheld the deed's validity, and the Court of Appeals affirmed.

The Supreme Court granted review, and Justice Eric Rosen, writing for the Supreme Court majority, affirmed the lower courts. The majority examined the common-law doctrine of amanuensis, which applies to an individual who puts in writing what another person has dictated.When an amanuensis writes a signature for a person in the presence of that person and at that person's direction, the signature becomes the signature of the person for whom it is made. The majority held that the doctrine operated to give the transfer-on-death deed legal effect. The Supreme Court majority held that a party may prove, through the testimony of witnesses or other competent evidence, a mistake made by a notary when acknowledging the execution of a deed. The court explained the burdens of proof required in such cases to protect against fraud and self-enrichment.

Justice Caleb Stegall wrote a concurring opinion agreeing with the application of amanuensis law to this case and the principal holdings, but criticizing the majority's interpretation of the law of agency as it might be applied in other cases. Justice Lee Johnson dissented, arguing that the Kansas statutory scheme does not allow an amanuensis to sign transfer-on-death deeds. He cautioned against the opportunity for fraudulent transfers under the majority's holdings.

 

Appeal No. 118,914: In re Care and Treatment of Robert J. Sigler

Archived oral argument video

The Supreme Court affirmed the jury verdict finding Sigler was a sexually violent predator subject to civil commitment under the Kansas Sexually Violent Predator Act. This was the State's second attempt to civilly commit Sigler. The first attempt failed after the Barton County District Court found the State failed to meet its burden to show beyond a reasonable doubt that Sigler was likely to act out on his mental abnormality or personality disorder or that he had serious difficulty controlling his behavior. Sigler was released to parole in July 2015. The State filed a new petition to civilly commit Sigler after Sigler's parole was revoked. Sigler asked the district court to rule the second proceeding was procedurally barred. The district court disagreed, holding a second proceeding was allowed based on a material change in Sigler's mental abnormality or personality disorder or in his ability to control his behavior. The Supreme Court agreed. Sigler also argued his civil commitment should be reversed because the district court did not declare a mistrial of its own accord when a State witness testified incorrectly that Sigler had been civilly committed in an earlier proceeding that was overturned on appeal. The Supreme Court disagreed that this incorrect testimony required the district court to declare a mistrial.

 

Appeal No. 116,252: State of Kansas v. Terry R. Ballou Sr.

Archived oral argument video

Ballou appealed his convictions and sentence in Miami County District Court for rape and aggravated indecent liberties with a child. The Court of Appeals affirmed his convictions and sentence, finding no reversible error. The Supreme Court affirmed, holding that although the State erroneously misstated facts in its closing argument, the error was not reversible. The Supreme Court rejected Ballou's challenge to the admission of a video recording of a forensic interview of the child victim, holding it was not expert testimony and Ballou had not shown the interviewer used unreliable methods. The Supreme Court also held Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct because he did not renew his objection when the evidence was introduced at trial. Additionally, the Supreme Court held Ballou failed to show he was entitled to an independent psychological evaluation of the victim, and further rejected Ballou's claim that cumulative error denied him a fair trial.

 

Appeal No. 116,524: State of Kansas v. Dashaun Ray Howling

Archived oral argument video

The Supreme Court affirmed Howling's convictions for one count of aggravated criminal sodomy. The court rejected Howling's argument that a videotaped interview of the victim was inadmissible expert testimony. The court noted other jurisdictions have adopted pretrial procedures to address defense arguments that evidence obtained through the forensic interview process is unreliable or otherwise inadmissible. The court did not need to decide in this case whether to adopt such a procedure because the Pratt County District Court concluded the statements resulting from the interview were sufficiently reliable to be admissible, which is the ultimate goal of such pretrial proceedings. The court also rejected Howling's sufficiency of the evidence challenge, finding sufficient evidence supported a rational factfinder finding Howling guilty beyond a reasonable doubt.

 

Appeal No. 114,944: State of Kansas v. Larry Laverne Toothman

Archived oral argument video

Toothman was convicted in Saline County for committing seven sex crimes against his teenaged niece. The Court of Appeals reversed one conviction for rape and one for aggravated criminal sodomy and remanded the case with directions to resentence Toothman for aggravated incest, a less severe offense, in their place. The Court of Appeals believed Toothman should be sentenced for aggravated incest because it was a more specific crime than rape or aggravated criminal sodomy, due to his familial relationship with the victim.

In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the Court of Appeals erred when it reversed Toothman's convictions for rape and aggravated criminal sodomy. The Supreme Court explained that aggravated incest criminalized "otherwise lawful sexual intercourse or sodomy" with a specified relative, but aggravated criminal sodomy and rape could never be "otherwise lawful." Thus, the Supreme Court held that aggravated incest is not a more specific crime than aggravated criminal sodomy or rape and affirmed Toothman's seven convictions.

 

Appeal No. 116,505: State of Kansas v. Christopher Boothby

Archived oral argument video

Boothby was convicted of aggravated assault and criminal threat in Stevens County. On appeal, Boothby argued that the district court judge committed judicial misconduct when he commented during voir dire about a former case in which Boothby was charged with aggravated battery. The parties agreed that the district judge committed misconduct but disputed whether the error was harmless. Boothby also argued that the jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," was erroneous because it told the jury that it could not nullify.

In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the district court judge's erroneous comment was harmless beyond a reasonable doubt. The court announced a new rubric for reviewing erroneous judicial comments made in front of the jury that are not jury instructions or legal rulings, calling it "judicial comment error." The court explained that, from now on, judicial comment error will be analyzed in two steps: error and prejudice. If a judicial comment error is found, the State must prove beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. The court also held that the instruction telling the jury to base the verdict "entirely upon the evidence admitted and the law as given in these instructions" was legally correct and did not prevent the jury from exercising its power of nullification.


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