Mary Beck Briscoe

In this case, five defendants convicted in the early 1990s of conspiracy and related charges involving crack cocaine appealed the district court's denial of their motions under 18 U.S.C. § 3582(c)(2) to reduce their sentences based on Sentencing Guidelines Amendment 706, which lowered base offense levels for crack offenses. The Tenth Circuit affirmed the denials, holding that the amendment did not lower the defendants' applicable guideline ranges and thus provided no basis for relief. The court relied on the Supreme Court's intervening decision in Dillon v. United States, which confirmed that the Sentencing Commission's policy statements in U.S.S.G. § 1B1.10 are binding in § 3582(c)(2) proceedings and that United States v. Booker does not apply to authorize full resentencings or departures from those statements. The appeals were consolidated and resolved without oral argument.

criminal law

Hugh B. McKeen held term livestock grazing permits from the U.S. Forest Service for over forty years on the Cedar Breaks Allotment in New Mexico's Gila National Forest. He sued under the Administrative Procedure Act to set aside various Forest Service actions, including a 2002 Decision Notice modifying his permits, related Allotment Management Plans, and Annual Operating Instructions. The district court denied all relief, and McKeen appealed. The Tenth Circuit affirmed the denial of claims tied to the Decision Notice because some arguments were waived, others were not preserved below, and implementation challenges lacked specificity for judicial review. It vacated the ruling on the cancellation of permitted grazing numbers and remanded with instructions to dismiss that claim as moot.

environmentfederal powerbusiness & regulatory

The case involved a criminal prosecution of Criss McGinty for misapplication of over $500,000 in bank funds, to which he pleaded guilty under a plea agreement that included forfeiture of proceeds. The district court ordered forfeiture of McGinty's house and boat-sale proceeds as specific property derived from the offense but declined to enter a money judgment for the full amount of unlawful proceeds. The government appealed, arguing that 18 U.S.C. § 982(a)(2) mandates forfeiture of the full proceeds amount via money judgment. The Tenth Circuit reversed, holding that the statute requires forfeiture of all proceeds and permits entry of a money judgment (potentially alongside specific-property forfeiture), and remanded for the district court to determine the proper forfeiture amount after factfinding.

criminal lawprocedure

This consolidated bankruptcy appeal involved a trustee who avoided preferential vehicle liens under 11 U.S.C. § 547 that were perfected within 90 days of the debtors' bankruptcy petitions. The trustee sought not only avoidance and preservation of the liens under § 551 but also a monetary judgment for the liens' value under § 550(a). The bankruptcy court and BAP ruled that recovery under § 550 was not required because avoidance and preservation of the lien already restored the estate to its pre-transfer position by placing the trustee in the position of the former lienholder. The Tenth Circuit affirmed, holding that § 550 relief is permissive rather than mandatory and that the facts here presented no compelling reason to award the value of the nonpossessory liens in cash.

propertyprocedure

This case involved a challenge by plaintiffs who used public domain foreign works to the constitutionality of Section 514 of the Uruguay Round Agreements Act, which restored copyright protection to certain foreign works that had entered the public domain in the US. The district court ruled that the law violated the First Amendment, but the Tenth Circuit Court of Appeals reversed that decision. The court held that Section 514 is a valid content-neutral regulation of speech because it advances the important government interest of complying with the Berne Convention by securing copyright protections for American works abroad, and it is not substantially broader than necessary to achieve that interest. The court also confirmed that Congress acted within its authority under the Copyright Clause.

free speechfederal powerbusiness & regulatory

This case involves Michael Bunton's appeal from the denial of his federal habeas corpus petition under 28 U.S.C. § 2254 challenging his Colorado state conviction for first-degree murder and life sentence. The Tenth Circuit affirmed the district court's denial of relief, concluding that one ineffective assistance of counsel claim was procedurally barred because Bunton failed to include necessary trial exhibits in the state appellate record. The court rejected the remaining claims, including arguments based on cumulative error, as either unexhausted or without merit under applicable standards.

criminal lawprocedure

The case involved a workers' compensation dispute in which American Drywall and its insurer sought to cancel or modify claimant Eugene Asay's existing award for a permanent partial general disability sustained as a residential drywall hanger. The district court cancelled the award under K.S.A. 44-528(b) solely because the claimant was now earning higher wages in a commercial drywall position, even while recognizing he retained a 25% disability. The appellate court reversed, ruling that increased earnings alone do not permit cancellation; instead, the statute requires proof that the claimant has regained the ability to perform work of the same type and character as before the injury, consistent with the disability test in K.S.A. 44-510e(a).

labor & employment

Jerry King, a licensed mechanical contractor, sued the City of Topeka and its building inspectors after being prosecuted and convicted (later dismissed on appeal) for a municipal mechanical code violation involving an improper boiler flue at a construction site, alleging malicious prosecution, abuse of process, and equal protection and due process claims under 42 U.S.C. § 1983. The trial court granted summary judgment to the defendants on all claims. The appellate court affirmed summary judgment on the § 1983 claims, finding no evidence that the prosecution was deliberately based on an arbitrary or unjustifiable standard despite evidence of inconsistent enforcement practices, and it affirmed dismissal of certain state tort claims, but reversed on the malicious prosecution and abuse of process claims and remanded for further proceedings.

criminal lawcivil rightstorts & liabilityprocedure

This case arose from a 1990 car accident in which the defendant admitted liability, leaving only the amount of damages for a jury trial. The plaintiff appealed two trial court rulings: the grant of a motion in limine that barred any mention that the defendant’s insurer had referred the plaintiff to his treating physician Dr. Lewis, and the decision to send the jury back to correct an inconsistent verdict that awarded medical expenses but omitted other damages. The court held the evidentiary exclusion was proper under K.S.A. 60-454 because revealing the referral would likely inject the forbidden topic of liability insurance and create prejudice that outweighed any probative value. It further held that the trial judge acted within discretion under K.S.A. 60-248(g) by returning the jury for further deliberations rather than granting additur or a new trial. The judgment for the plaintiff was affirmed.

torts & liabilityprocedure

In King v. American Family Insurance, Alicia King sought to recover directly from American Family Insurance after obtaining a $25,000 default judgment against its insured, Frank Wooten, for injuries from a 1991 car accident, following the insurer's refusal to pay. The district court dismissed the action, and the Court of Appeals affirmed, holding that Kansas law under K.S.A. 40-3107(b) does not permit a direct action against an auto insurer absent a statutory provision or assignment of the insured's rights. The court relied on precedent from White v. Goodville Mutual Casualty Co., which interpreted the statute as creating indemnity coverage rather than direct liability insurance, and noted that King had not obtained an assignment from Wooten or pursued garnishment as the proper remedy. It further reasoned that filing a separate suit against the insurer would improperly split a single cause of action.

torts & liabilityprocedure

This case concerns an adoption petition filed in Douglas County, Kansas, for a child born in Kansas to a 16-year-old mother who had recently moved from Pennsylvania, where the unmarried father still resided; the adoptive petitioners were Michigan residents who obtained temporary custody shortly after the birth, and the father contested the termination of his parental rights. The district court determined Kansas had subject-matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) but declined to exercise it on grounds that Kansas was an inconvenient forum and Pennsylvania was more appropriate, primarily because more evidence concerning the father's fitness existed there. On appeal, the Kansas Court of Appeals affirmed the finding of Kansas jurisdiction at the time the petition was filed, reversed the conclusion that Pennsylvania was the proper forum, and remanded for further proceedings to determine whether Kansas or Michigan has jurisdiction and, if both do, which is the more convenient forum under the UCCJA factors.

family lawprocedure

The case concerned an attorney's suit against his former clients for unpaid legal fees arising from representation in commercial litigation, with the clients filing counterclaims for legal malpractice and misappropriation or commingling of funds. The jury rejected the attorney's claim for additional fees and the clients' malpractice claims but the trial court granted partial judgment notwithstanding the verdict on the fund claims. On appeal and cross-appeal, the court affirmed most rulings but reversed the malpractice verdict against the attorney due to insufficient evidence that he failed to convey settlement offers, reversed the partial JNOV to enter judgment against the attorney for $10,070 on the misappropriation claims, and remanded for a new trial on punitive damages related to those claims while upholding the trial court's handling of fee agreements, jury instructions, and other procedural motions.

torts & liabilityprocedure

This case was a personal injury suit by Donald Lamb against the City of Elsmore, Kansas, after Lamb suffered electrical burns from a 7,200-volt line while repairing telephone wires on a jointly used utility pole. The trial court granted summary judgment for the City, ruling it was immune under the discretionary function exception of the Kansas Tort Claims Act, that Lamb was a licensee owed only a duty to avoid willful or wanton injury, and that no such misconduct occurred. The appellate court reversed and remanded, concluding that premises liability rules do not apply to injuries caused by contact with public utility lines and that an ordinary negligence standard based on foreseeability of harm instead controls the City's duty.

torts & liabilityprocedure

This case involves Floyd Carmichael's appeal from the denial of his K.S.A. 60-1507 motion for post-conviction relief, in which he challenged his 1985 convictions for two counts of rape and one count of aggravated kidnapping involving his 15-year-old daughter. The court reversed the rape convictions on the ground that the more specific statute of aggravated incest should have been charged instead, following the rationale from State v. Williams that a specific statute controls over a general one when both apply to the same conduct. The court rejected Carmichael's related claims of ineffective assistance of trial counsel concerning the timing of a rape shield motion, as the underlying evidence had already been deemed inadmissible on direct appeal. It affirmed the aggravated kidnapping conviction, however, because jurisdiction and sufficient evidence existed independently under alternative theories in the kidnapping statute, without requiring a valid rape conviction.

criminal lawprocedurefamily law

The case involved Timothy Zurawski, whose driver's license was suspended by the Kansas Department of Revenue after he failed to provide an adequate breath sample during a DUI stop, which was deemed a test refusal. The district court reversed the suspension, relying on medical letters indicating Zurawski's asthma prevented him from completing the test due to a condition unrelated to alcohol. The appellate court affirmed, holding that the Department failed to preserve objections to the admissibility of the medical evidence at the administrative hearing level, and under de novo review, the district court properly considered the uncontradicted medical evidence showing a valid medical reason for the test failure.

criminal lawprocedure

In State v. Mendenhall, Gary Mendenhall was acquitted of aggravated battery and aggravated robbery after being charged with taking money and a car from the alleged victim; he then moved for return of $540 seized from him at arrest under K.S.A. 22-2512(2). The trial court held an evidentiary hearing on ownership rather than automatically returning the money and ordered it delivered to the alleged victim. Mendenhall contended that acquittal required return to him and that the hearing infringed his due process and effective counsel rights. The Court of Appeals affirmed, holding that acquittal does not determine ownership or bar an evidentiary hearing, that the statute requires return to the owner, and that no constitutional violation occurred because the court understood Mendenhall's position and gave him opportunities to present evidence.

criminal lawprocedure

In this case, plaintiff Deborah Fennesy sued Redman Building Products after an intruder entered her apartment through a sliding glass door and attacked her; she asserted product liability, negligence, and misrepresentation claims against Redman as the door's manufacturer. The district court dismissed the claims as time-barred under Kansas's two-year statute of limitations for product liability actions, holding that Fennesy's second amended petition naming Redman did not relate back to her earlier timely filing against a different company (Parker-Hannifin) that had used a similar name. The Court of Appeals reversed and remanded, concluding that K.S.A. 60-215(c) and 60-203 together allow relation back if the correct defendant receives notice within the statute of limitations plus the 90-day period for service, and that Redman received such notice on December 21, 1990; whether the notice satisfied the remaining relation-back requirements is a factual issue for the trial court.

proceduretorts & liability

In State v. Lowe, Michael A. Lowe was convicted of two counts of aggravated robbery and one count of aggravated battery. He appealed, arguing that the trial court denied his right to self-representation and failed to properly instruct the jury on eyewitness identification. The court held that Lowe had clearly invoked his right to proceed pro se under Faretta v. California, but the trial judge misstated the legal standard for allowing self-representation, did not provide an adequate opportunity for Lowe to confirm his choice after warnings, and improperly continued counsel's participation without a valid waiver; it also found that the missing jury instruction was not clearly erroneous given the strength of the identifications. The convictions were reversed and the case remanded for a new trial.

criminal lawprocedurecivil rights

The case involved defendant Richard Sullivan, who was convicted of obstructing official duty after resisting arrest on a suspended driver's license and a felony parole violation warrant, along with other traffic offenses. The court addressed whether resisting a parole violation warrant constituted a felony or misdemeanor under K.S.A. 21-3808, which classifies the offense based on the underlying case. The court determined that a parole violation is not a criminal offense but is civil in nature, as it arises from an administrative proceeding separate from the original felony conviction, leading to the conclusion that the obstruction conviction should be classified as a misdemeanor rather than a felony. The matter was remanded for resentencing accordingly.

criminal law

This case involves an inmate at a Kansas correctional facility who was attacked and injured by another inmate after both were released from disciplinary segregation and housed in the same cellhouse, despite prior threats and the prison officials' knowledge of the conflict. The plaintiff sued the state for negligence under the Kansas Tort Claims Act, alleging failure to protect him or separate the inmates. The district court granted summary judgment to the state, finding a duty of care existed but that the discretionary function exception provided immunity. On appeal, the Kansas Court of Appeals reversed and remanded, holding that the state has a duty under Restatement (Second) of Torts § 320 to exercise reasonable care to control an inmate known to pose a risk of harm to another specific inmate, and that neither the discretionary function nor police protection exceptions to the Tort Claims Act apply where a specific duty to an individual is breached.

criminal lawtorts & liability