The Kansas Court of Appeals conducted oral arguments for three cases on July 2026, covering diverse legal issues including ineffective assistance of counsel claims in criminal appeals, medical negligence in transplant cases, retroactivity of Supreme Court decisions in contract disputes, civil service board disciplinary decisions, and Fourth Amendment issues in criminal prosecutions. The court emphasized thorough review of records, briefs, and legal memoranda before encouraging attorneys to focus on substantive arguments within the 15-minute time limit per side.
Install our extension to search inside any video instantly.
Olathe Kansas Court of Appeals Oral Arguments
Added:Please be seated.
>> Good morning.
Want to welcome everyone to the July 2026 oral arguments before the Kansas Court of Appeals. My name is Sarah Warner. I am the chief judge of our court and I'm joined today by a distinguished panel.
To my right, your left, is Judge Kim Schroeder. Judge Schroeder has uh was appointed to the Kansas Court of Appeals in 2013 after spending about 14 years on the District Court bench in Stevens County in Hugaden. And then to my left, your right, we are very pleased today to be joined by Judge Jason Guyire. Judge Guyire is a district court judge who's sitting by appointment with our court.
Judge Guyire hails from Shaunie County in Topeka.
The court will hear three cases this morning. In preparation for today, we have thoroughly reviewed the record, the briefs that have been submitted by the parties and a memorandum that has been prepared by a research attorney who works for the court. So, we are very aware of the facts of each case and so we encourage the parties and the attorneys to just jump right into their oral arguments because each of these cases has 15 minutes of arguments per side.
With that, we'll turn to the first case before us from Wandot County. Case number 128829, Ephraine Gonzalez Jr., Appellant versus State of Kansas Appal. Would the parties please state their appearances?
>> Good morning. I'm Jonathan Lawrence on behalf of Mr. >> Good morning. The state of Kansas appears by assistant district attorney David Greenwald this aptly.
>> Welcome. And Mr. Lawrence, would you like to reserve any time for rebuttal?
>> I'd like to split five if >> five minutes of rebuttal are granted.
And with that, you may proceed.
may please the court.
In Kansas appellet history, there are two other cases where there have been four findings of deficient performance.
One of them is from 2014, Wilson versus state. It's at 51 Canapse Second one.
The other one is somewhat famous case in Antabos.
It's 295 Kansas 10 from 2012. It's the case that extended Strickland analysis to KSVPA.
That's not what's relevant. What's relevant is both of these cases had four findings of deficient performance and the court of appeals in Wilson and the Supreme Court in Barrow supplied cumulative error analysis.
I would like to start out at the back of the case at the back of Judge Cahill's order um and note that Judge Cahill misapplied or misstated, however you want to say it, the cumulative error test. What he said was since there's no prejudice found for each of the four deficient performances, there cannot be cumulative prejudice. And that's not the test. The test is, let me digress a second. And the reason that's wrong is if there's one finding of prejudice that mutes everything else.
So you got a finding of prejudice on a deficient performance. Now you have met the entire Strickland test and you don't need to reach the other three. So uh I would submit to the court although I believe each of the four had their own prejudice three more than the fourth. Um, at the very end of the day, it's really hard to say that there wasn't cumulative prejudice here. I think the worst error is when you have a lawyer pick an unavailable defense. And this was a guy who was going to go to the wall with it.
You can see it in the evidentiary hearing transcript. Paul Franco took the stand and right out of his mouth says, "It was never my intent to rely on the the defense of mental disease and defect. that was just for sentencing mitigation. The case was hopeless and I was just going to start with that. And then I Okay, let's do it this way. Hand him exhibit one. What's this? Oh, it's the notice of intent to rely on the defense of mental disease and defect.
So, I knew I was dealing with somebody who did not want to be honest.
Next question, which is of equal importance to picking the wrong defense is complete ignorance that there is an available correct defense. And I say, "Does Kansas recognize involuntary toxic intoxication?" No. No. If it did, would you have used it? Absolutely. But it doesn't. Kansas doesn't recognize that.
And then I bring him the three jury instructions.
You have a lawyer who was so out of touch and had never cracked a law book, as echoed by Mr. Haggard in his local council, admitted the same thing, didn't know that he picked a wrong defense. the facts lined up with the right defense and he didn't know that the right defense existed.
>> Well, council, how could he have presented an intoxication defense when the defendant chose to not testify?
>> Well, and that's that that is one uh >> I mean, I think that's correct. The defendant, >> right, >> chose not to testify, >> right? What's interesting is that was one of the 12 instances of ineffectiveness that I raised in the 1507. Judge Cahill did not specifically address it in terms of he didn't make a finding whether it was deficient or not to misadvise Gonzalez whether he had to testify. He just said that there was no prejudice. But your question leads right into the second instance of ineffectiveness.
They bring in Mr. Espinosa, the shooter, the actual murderer in this case. They bring him in on a subpoena and Caleb Boon comes in and says he's going to assert his fifth.
I believe Espinosa did appeal his sentence. There was a direct appeal. It doesn't matter. It was already in the rearview mirror and he had already missed the time deadline for 1507. And Boon says to Judge Fairchild because Judge Cahill didn't try the case. Judge Fairchild did and says to Judge Fairchild, um he might file a 1507 in the future. And Fairchild sustained that. That was part of the direct appeal. The point being this, Franco and Haggardan didn't even know that the case law says that when the 14 days for your notice of appeal runs or the time for review after an appellet decision runs, your fifth amendment right ends. You can short circuit all that. What they should have done is very simply, oh, you want to take the fifth?
No problem, judge. Um, I'm going to the two officers who took his confession, Espinosa's confession, they're testifying in this case. They're the two lead detectives. When they take the stand, I'm going to give them Espinosa's statement, which you have by stipulation. It's exhibit four. It was at page five of the evidentiary hearing transcript. It was stipulated in evidence by the state. No objection. But the bottom line is at trial, you just hit those two cops with, let's go over Espinosa's confession. It's a statement against penal interest. And he's not available now. he took the fifth. So, he's an unavailable witness. It's just classic textbook hearsay. They didn't even know that. So, that would have populated the defense. Um, in my brief at um page 18, I list out all of the statements that Espinosa gave about Gonzalez's drug ingestion and his state of mind.
>> Back up, though. If the officers would have testified under the hearsay exception, wouldn't they have testified about the conspiracy to commit a robbery?
>> They did testify about that, but it's a jury instruct. It's a it's still a jury question whether Espinosa's drug ingestion was sufficient to a level where it robs him of his men's ray.
That's a jury question. So, Judge Cahill, who didn't try the case, said no, he was in his right mind. There's enough evidence. It strikes me that that's a choice that the defense attorney made, right? And and maybe your argument is is that it wasn't an informed choice, but but it's a choice.
Do you want to bring these officers out and and ask them questions that could be very damning or not?
>> Well, what I'm what I'm saying is this.
You need a witness to put in a hearsay statement.
They're already testifying. They're already giving the damning evidence. The point being their defense, >> who's giving the damning evidence?
>> The the two the two officers, >> but they're already testifying for the state against Gonzalez. My point is, >> but they didn't have any real evidence against Gonzalez.
>> No, but they but they were the two main witnesses against him. And what I'm saying is this. When Espinosa becomes an unavailable witness by invoking incorrectly but invoking the fifth and Judge Fairchild grants him that status, he's now an unavailable witness. So the statement that you have, exhibit four, that's now fair game. That's admissible.
You need a witness to do it. The most logical witness are the two cops, right?
Or you could have played the video for the jury, but you're still going to need a witness to say this is the video.
You're still going to need the cop. But the point being, your defense as the defense attorney was, let's go back to the beginning. He's got mental disease or defect. Why? Drug ingestion. Okay.
So, where's the drug ingestion evidence come from? There are two witnesses. One would be Gonzalez who testified at the 1507 hearing. He was never told because they didn't even know that intoxication was a defense. So, he was never told, "We need you to populate that defense with testimony." Right.
Even if you are going to overlook the fact that he was misadvised on whether or not he should testify, you still have Espinosa's statement, Espinosa says he basically was unconscious. His quote was, "He was zoned out. He was awakened by the gunshot." Like Gonzalez is passing in and out of consciousness, driving around like a fool. I grant that, but he's so high on Xanax, marijuana, and the other stuff he was taking that he's not fully conscious.
And Espinosa is the one who gives that statement says he was zoned out. And Espinosa is giving that as part of his confession. So it's fully admissible.
So that is also an error. Not it's it's a double error. It's number one not knowing that Espinosa can't take the fifth. He can't, right? Because the time for his uh appellet rights and his postconviction rights had already expired. Defense council didn't know it.
Unfortunately, Judge Fairchild didn't know it. But it's defense council's error. So >> council, I I want to make sure that we have time to address your cumulative error argument. And so would you talk me through the argument where that or the finding that you think that Judge Cahill should have made?
>> He should have said there was no defense.
You you picked you picked an unavailable defense. You didn't know about the viable defense with the same facts that you were relying on for your unavailable defense. you didn't correctly call the witness who would have provided the testimony for that defense. And then I think this is just as as grave an error.
You let the state put in an unconstitutional jury instruction. The Supreme Court earlier this year in a case called Wright at 321 can this year once again underscored you cannot be convicted of aiding and abetting on a reasonable foreseeability jury instruction. These guys didn't even know. They didn't even read the jury instructions. They didn't even know to object. Those errors compounded together left this young man with absolutely no defense whatsoever. None. He just had two lawyers who just showed up. I'm having a hard time with the lawyer should have called the codefendant when the codefendant would have laid all of the groundwork for a plan to rob aggravated robbery and and their conspiracy to commit robbery and without him being a witness that was there was no testimony of that.
>> The officers testified to that only upon council's question.
I believe that the officers testified about the text messages that they construed to be the evidence of a plan.
>> Yeah, that but that's pretty big.
>> I I agree. But and >> so until the officer until the defense council asked the specific question of the officer, what evidence do you have of Gonzalez, he went in, he opened the door for testimony that was not admissible without that question? Your honor, all due respect, it it sounds like if if I'm hearing correctly, you're imputing a strategy to Franco and uh Hagridan that they didn't have. The idea being it was not a good strategy for them to call Espinosa. They wanted to call Espinosa. They tried. They subpoenaed him. They didn't know how to overcome his invocation of the fifth. It was fully their intent to put Espinosa on that. You see what I'm saying? like they they're not disagreeing with me that they needed Espinosa, they just didn't know how to do it. And what I'm saying is >> once Espinosa takes the fifth and it's acknowledged by the judge, there's nothing you can do about it. But what you can do is say, great, now he's an unavailable witness. The stuff I wanted to get from him about how high and out of his mind that Gonzalez was. Remember, this is a guy who dug a bullet out of his foot with his fingers at the hospital just an hour later.
Espinosa >> want to make sure we're going into your rebuttal time. I just want to make sure that that's that's clear.
>> All I would conclude with is Espinosa would have been forced to acknowledge what he said in that videotape statement that is exhibit 4, the transcript of it that's in the record.
>> Thank you. You still have five minutes for >> Welcome council.
>> Good morning honors.
>> So this is a case where judge Cahill found that trial council Mr. Franco was deficient in certain areas, but everything then turned on whether or not it ultimately would have changed the outcome. And I think that's what is very important for the court to look at and assess in this case.
>> And council, just to be clear, the state isn't isn't uh contesting any of those findings by Judge Cahill that that there we indeed have several errors here.
>> Well, I sure would like to, but I'm not going to. Uh, >> the state did not. I shall >> We did. We did not, your honor.
>> Okay.
>> Ultimately, this wouldn't have changed anything.
Voluntary intoxication is a potential defense, but just because it is a hypothetical defense doesn't mean it's one that the defendant would have been entitled to. Uh we set this out in our briefing, but mere evidence of consumption of drugs or alcohol isn't enough to reach the threshold to even get the instruction. So even if Espinosa had testified, Espinosa in addition to saying a number of things that actually would have inculpated the defendant and and said that he had a lot of culpability, it was his idea to rob.
Saying, "Well, I watched him do some Xanax wouldn't have been enough to get to the level where uh Mr. Gonzalez could say that he doesn't know anything, that he couldn't have formed a culpable mental state." Frankly, Espinosa's statement gives the state the culpable mental state. It gives direct evidence of Gonzalez's couple mental state as opposed to the case the state put on which was circumstantial.
The the text messages from Gonzalez to his girlfriend talking about setting up a robbery, you know, show a level of lucidity and had Gonzalez. You're that a speculation though? I'm I'm hanging with whatever and we're going to go get paper.
Well, so >> that's the only thing that the text said, right?
>> Well, he said, "I'm I'm my friend's grip," which is generally speaking what our detectives know to be the trigger man, the gunman. And then he later says, >> "Grip means gunman."
>> Yeah. Generally speaking, yes.
>> Uh the other part of that then is, you know, he says, uh, you know, we just got dumped at, you know, and I'm paraphrasing, but they dumped at Bato, who is Espinosa, so we dumped back at them. And that again, generally speaking, means they shot at us. We shot at them. It shows some level of understanding of he knows what's happening because he's more or less narrating this as it's happening.
>> That's somebody else that shot at him.
>> They're talking about what I'm guessing the victim in the case, Louis Sherzer.
>> Like you just said, I'm guessing. Do we have that in the record to >> that? That there were there were shots exchanged back and forth when the police found uh Mr. Gonzalez's car. It had bullet holes in it. There was a bullet hole in the back windshield. Um, there was a lot of discussion back and forth during the trial about whether or not Mr. Sherzer carried a gun with him.
>> And wasn't wasn't there video that one of the detectives testified to that showed uh the victim firing his weapon back?
>> Yes.
>> Okay.
>> Yes.
>> And so you're setting forth the fact that um Gonzalez was sending those text messages, Facebook Messenger messages, uh, I'm my partner's grip. we're gonna go get paper.
Mr. Sherzer um dies is shot and then afterwards um I believe it was to his girlfriend saying they got dumped on. Um so essentially the defendant is cognizant before and after the crime, which would tend to lead to the fact that he was cognizant of what he was doing in the involuntary or pardon me, voluntary intoxication defense.
>> That's that's my assertion. Okay, your honor. Um, you know, had had the defendant testified in his own defense, which I think is not always necessary, but in this case probably would have been necessary based on what the other evidence available to him was, that opens the door for his profer statement to come in, which would have also very seriously hurt his his ability to put on his case, his voluntary intoxication because he gave >> I'd like to talk about that profer statement because uh so there there's a there's a profer it's not going to come in and then the defense attorney just kind of stumbles into inviting all of this these statements in.
How is that not horribly prejuditial?
>> Yes, your honor. Well, I think there's a there and this it was the finding that Judge Cahill made, but that there was a pretty limited amount of testimony about what those statements were. The profer itself didn't come into evidence. Um, Detective Vaughn, I believe, kind of briefly touched on it, but neither party discussed that in closing argument. The state didn't talk about that in closing argument. It was not the basis for any of of the state's case functionally.
So, you have a pretty limited amount of testimony from one officer during a three or four day jury trial and then really no mention of it after.
>> But that officer's testimony says he admitted it.
>> Yes, your honor. So, isn't that pretty damning statement in the middle of the trial for the jury to consider when that would not have been brought out, but for the attorney's inept questioning?
>> Well, your honor, you know, everything is a little speculative without having the jury to to tell us what their line of thinking was during all of this. But when you've got the cold record, >> right? My argument is that when you know the the jury doesn't have the pro the full profer before them. So they when Detective Vaughn says, you know, his admissions, they don't know that he made full admissions, they don't know what he said. They don't have any of that.
Mr. Gonzalez made statements, as we just talked about, via Facebook Messenger or text messages where he's talking about, you know, they dumped at us, we dumped at them, so on and so forth.
>> But but I mean that that as as we've talked about, those statements need interpretation. So you then you have to rely on someone else telling you what was meant by those statements. But here the detective's testimony, that evidence would be his admission.
That admission or that evidence would be the fact that they discussed pointing out the victim, identifying, pinpointing a victim, targeting a victim for the robbery, and they attempted to do that when they murdered the victim. I mean that that's laying out an admission of the elements of the crime.
>> Yes, sir.
>> I don't know how we can ignore that.
>> Well, I don't know that I don't know that I'm asking you to ignore it, but I think ultimately at the end of the day, it doesn't >> fundamentally alter the outcome of the >> be prejuditial because it would have never been brought to the jury's attention but for the attorney's question.
>> Well, ultimately, Mr. Gonzalez does make statements that did come into evidence properly. Again, his text messages talking about being the grip, trying to get paper, all of those things came in.
Anyway, so that that little excerpt of Detective Vaughn's testimony is not so voluminous or or directly, you know, speaking to the profer, even though that is what it was, but it doesn't he doesn't go in to say, "Well, we took a profer from him. he said X, Y, and Z in a statement to us that was recorded or any of those things that it functionally just goes back to all the circumstantial evidence that the case that the state presented with the text messages, the Facebook messages, video evidence.
Mr. Greenwald, I want to jump in and I was surprised I I didn't see this in either brief. Um I do not have the transcript in front of me, but I took notes. Uh it appears on redirect with detective vaugh uh there was a break for the day. He came back the next day and began testifying. Um and before he got into to the profer uh that defense council got into before that um he goes a question is asked about what evidence do you have that Mr. Gonzalez took part in this crime? Paraphrasing a little bit but at one point he says he discussed the robbery. He talked about the robbery with his partner. So, a lot of the evidence that came in with that profer.
Um, in my opinion, it looked like that came in beforehand via un unobjected to testimony that came in on redirect. And so, in some respects, that was already an evidence. Would you agree or disagree?
>> I would agree. I would agree. So at at the end of the >> but the question council is whether eliciting essentially a statement of all of the the elements of the crime from a from a witness, the defense council's statement or attempt to to elicit that information. um whether we can say that that beyond a reasonable doubt that that didn't affect the outcome. Can we say that?
>> It's tough to say we can ever say that something would put a finger on the scale one way or another beyond a reasonable >> that's but that's the showing that the state has to make once we have an error.
>> Right.
>> So can can we say that?
>> I think we can. The state presented a very strong case and detective not detective sorry judge Cahill set out the strength of the state's case when he reached his conclusions and >> didn't the uh Supreme Court disagree about the strength of the state's case and the direct appeal >> they ultimately affirmed the state's ca the the conviction on and one of the issues on on appeal was sufficiency of the evidence and >> it was it was also the issue of the aiding and embedding instruction and the use of the I'm with my grip and we're going to go get paper that that's highly basically I'm paraphrasing it's highly speculative.
>> Right. Well, but they ultimately upheld it because there was no timely objection to the aiding and abetting instruction.
Well, so to I guess pivot to that issue, you know, ultimately the state charged the defendant with first-degree premeditated murder. That was not a strong case, but the felony murder was based on the strength of the text messages between them talking about setting up functionally setting up a robbery. The reasonable foresee foreseeability instruction was air to give. The state's not going to argue that at all. But as noted by the Supreme Court, once he was acquitted of premeditated murder, there was no prejudice or harm because he's convicted of felony murder. that he's convicted of a homicide that happened during a forcable felony. And so that makes the reasonable foreseeability instruction moot at that point.
It go and so the strength of the felony murder case, the state's case was extremely strong. It wasn't necessarily strong for a premeditation case, but the strength of the evidence for felony murder was very strong. That's ultimately what he was convicted of.
>> All right. As as I understand the facts, and I could be wrong, but the state's case had Mr. Gonzalez's car in the area of the shooting.
>> Mhm.
>> Yes.
>> They found his car with bullet holes in it. They found the gun at his mother's house.
But none of those without the statement of the officer that was asked by the attorney show any agreement to commit a robbery.
That goes back to the messages, the Facebook messages and the and the text messages >> which are in the words of the Supreme Court questionable.
>> Respectfully, I would disagree with the Supreme Court's assessment that that is questionable. Um, you know, as somebody who does prosecute in an urban, you know, jurisdiction, that's pretty common parliament. We are familiar with what those mean. I think the detectives can testify to that. And I think the jury found that credible because calling somebody, saying that you're a grip is something that in Kansas City, Kansas, we're very familiar with that phrasing. I'm trying to get paper. We're familiar with that phrasing. And with all circumstantial evidence, when you look at the context surrounding something, you can start to fit it all together and you know what that means.
And so those statements in context with what all happened do paint a pretty clear picture of a robbery attempt that ultimately resulted in a homicide.
>> So if I tell tell my wife I'm going to go get some paper at the bank, does that mean I'm going to commit a robbery?
>> Well, in that context, it means most likely that you're just going to the bank to to withdraw money. But if there were other pieces of evidence, if a robbery ultimately happens and there were other pieces of evidence that would support that statement, then yes, >> council, I'll tell you what I'm having a little bit of difficulty with, and you probably have have found it from my questions, is that a direct appeal and a a question as to whether or not there is sufficient evidence is a very differential standard to the existing conviction. because we have to look at everything in the light most favorable to the state. So we have to uh so the Supreme Court would have to take whatever you know the the statements even if they even if the justices didn't have the context that you were explaining and so found these to be speculative they nevertheless were evidence that supported the outcome.
But on a habius corpus case, we have to think about whether we are convinced beyond a reasonable doubt that this did not affect the outcome, which is not a differential standard to the state. If anything, it is the antithesis of a differential standard to the state. So, how do I reconcile those two positions? Yes, your honor. So, I'd like to think of it if we were to take the defendant at his claims that he should have presented his volunteering intoxication defense.
Had he presented it, whether that was him testifying or putting the codefendant on the stand, the state would have been able to present sufficient evidence to counter his voluntary intoxication defense. There's not a guarantee he would have even reached the threshold legally to get the defense. But even if he had presented the defense, it would have opened the door for the state to present such strong evidence against him that it would have made it even more likely that he would have been convicted. The codefendant says it was his plan to commit a robbery. So, while the codefendant might have said, "I saw him do a lot of Xanax and drink alcohol," he in the next breath would have said it was also his plan to try and set up a robbery. Which goes to the ultimate crime he was convicted of, which is felony murder. The same thing goes to that instructional error which is while yes it was heir to give the reasonable foreseeability instruction once the defendant is acquitted of premeditated murder that becomes moot because he's convicted of felony murder and that instruction doesn't apply to the felony murder part of it the or the menrea of it because it's a murder committed during a forcable felony. So ultimately, while there were errors committed, if the defendant had it his way and these errors hadn't been committed, in many ways, based on what's already in the record, the state's case would have been even stronger for a felony murder case, and we would have ultimately gotten to the exact same spot we're in right now.
>> Thank you.
>> Thank you, honors.
>> Mr. Lawrence, you have five minutes. I could just pick up where he left off and I wasn't able to just exactly put my finger on it, but that reasonable foreseeability instruction was for the aiding in a betting charge. That was absolutely in play and it was he's guilty of aiding in a bedding if the shooting was reasonably foreseeable.
Right. So that that instruction is in play. Um addressing sufficiency. Does that come into play when you're talking about a felony murder conviction though when you just have someone not just but when someone dies during the commission of a robbery?
>> Does the aiding and embedding instruction come in or was that instruction just about premeditated murder?
>> That instruction's been declared unconstitutional. So I'm I'm a little confused. I it it had to be beyond a reasonable doubt. But in the context of Gonzalez's jury instructions, that reasonable foreseeability instruction went not to first-degree murder, but it went to the aiding and abetting and the other charges. Um, standing here, I'm not I'm not I mean, to me, the instruction is unconstitutional, so there wouldn't be any application to felony murder as we're standing here today before it was declared unconstitutional. I'm not sure. Um, if I could turn to the sufficiency, the Supreme Court listed Gonzalez's statement to the police as the lynch pin of its sufficiency analysis. So, there's the problem there. Um, if you want to going back for a second to the reasonable foreseeability, um, jury instruction at page 34 of my brief, um, I set forth all the arguments that the state made in its closing about reasonable foreseeability. This was a harmful instruction. They leveraged it.
They used it. They told the jury, "Hey, if it's foreseeable, he's guilty." So, this is that's not a harmless error, that that instruction.
What I what I hear going on when we talk about if Espinosa testified, the state would have done this. This is what lawyers do, right? This is what we do pregame prior to trial. It's just like football. You're watching film. You're guessing and pinpointing the strengths and weaknesses of your opponent's game plan and then you are prognosticating how you would address it. But the fact of the matter remains a jury is to decide the voluntary intoxication defense and then decide whether the other evidence overcomes it. Because what we have here is an inference, right? We all that's raised by the text messages ahead of time. And let's just be honest, it should is a typo. It says time to get this paper. It should have said going to get this paper. That's a drug phrase. I'm going to go get paper.
I'm going to go do a drug deal. Paper's money, doesn't that's not a robbery phrase. But that shows consciousness at that moment. And then his text message afterwards about the shooting shows consciousness at that moment. But it's only an inference that he was also conscious and awake and aware during the incident itself. And what we know from Espinosa's statement, he's zoned out.
The shooting is what wakes him back up and he drives off.
>> Our Supreme Court has said behavior before and after a crime is a great indication.
>> Sure.
>> Right. It's an inference. It's it's circumstantial.
>> But the direct evidence is Espinosa saying he's zoned out. He's not with us.
>> What it comes down to is this. We're talking about whether under Supreme Court rule 183 and under the statute 1507 there's a prepoundonderance of evidence that Ephine Gonzalez was denied effective representation.
They gave no defense. The defense that they intended was prohibited by uh Judge Fairchild and they didn't have a response for it because they didn't crack a book to know that Kansas had three jury instructions on voluntary intoxication. They didn't know how to put Espinosa on the stand. If this is held to be constitutionally sufficient representation, and I don't mean this to be facitious. I'm not I don't want to be hyperbolic, but really 34 years, this is the worst ineffectiveness of it. This is all I do is postconviction.
If this is upheld as constitutionally sufficient representation under the Sixth Amendment, then we have to ask ourselves, do we even need rule 1.1 on competence? They admitted we chose the wrong defense. We didn't know about the right defense. We didn't know that Espinosa didn't have a fifth amendment right. We didn't know about hearsay. We didn't research the foreseeability instruction. And then of course, yeah, we we were the ones that elicited or Franco was the one that elicited um uh Mr. Gonzalez's statement, you know, months later to the police trying to get a deal. I I ask that this um be reversed for new trial with competent counsel. Thank you.
>> Thank you very much. We'll take the matter under advisement. Thank council for your arguments both in writing and today. And we'll get an opinion out to you as soon as we're able.
At this time, we'll take just a minute and then I'll call the second case. So, I'll allow the attorneys to kind of uh we'll we're going to do some some changing of of the guard, but uh you can we'll just remain remain in here.
Thank you. Thank you.
We'll wait just a minute.
Please be seated. Our second case is also out of weak county. It's case number 128738.
Joshua Sammons and individually and a special administrator of the estate of Brandy Sammons appellant versus the University of Kansas hospital authority appali. Would the parties please state their appearances?
Michael Plant on behalf of the Palent Joshua Sammons, your honor.
>> Thank you.
>> Please court Trevan Ray on behalf of the defendant Appal University of Kansas Hospital Authority.
>> Thank you. And uh Mr. Blandon, would you like any time for rebuttal?
>> Three minutes.
>> Three minutes are granted. And with that, you may proceed.
defendant would have this court believe that this case involves complicated issues of policy determinations regarding organ transplants. That's simply not the case. This is a basic medical negligence case in which a hospital failed to maintain its own internal records and it failed to communicate with its own patient. But before getting to that core issue, I'd like to briefly touch upon the disqualification issue in this case.
There's no question that Judge Mahoney's sister served on defendants board and Judge Mahoney should have disqualified himself because of that fact. The Kansas Code of Judicial Conduct Rule 2.11A2 says that a judge shall disqualify himself under those circumstances and the case law has recognized that those circumstances require disqualification.
And Judge Mahoney agreed at the hearing.
he had known that his sister was on defendants's board and he conceded that he had never brought that given the parties or the attorneys any notice of that fact. And so the judge should have disqualified himself, but not just at that moment when it came up at the hearing because the comments to rule 2.11 state that it's a judge's obligation not to hear or decide matters when those circumstances are present, regardless of whether a motion to disqualify is filed. So when a judge has the conflict that we've identified under 2.11, a judge shouldn't just wait to see if anybody raises it and address it on a motion if somebody files a motion. A judge should recuse himself from the beginning of the case under that standard. council. While I appreciate the the um seriousness of what you're discussing, we also have a lot of case law that discusses the fact that just like the rules of professional conduct for attorneys are not um dispositive in say a legal malpractice claim. Neither are the judicial cannons dispositive as to whether it's not structural error. We still have to show that there is some kind of a a prejudice that is it that it's it's affected the outcome. And what can we point to to show that it affected the outcome?
>> I well I would disagree with the premise because I don't think there is a requirement of bias or prejudice under 2.11a2.
Under 2.11a >> I'm not talking about the canons. I'm talking about a recusal case law which says that there has to be a showing of of prejudice. It's not it's not a structural error. So what is the showing of prejudice or bias that you can point to?
>> I I don't think there is an express showing of bias. Again, the basis of our complaint isn't prejudice. Although the rule speaks in terms of circumstances in which impartiality might reasonably be questioned. And I can tell you our clients certainly question the impartiality of Judge Mahoney after learning of the conflict that Judge Mahoney had. But aside from that, I I still disagree with the premise. The Supreme Court has recognized on multiple occasions that there are separate basis to seek the disqualification of a judge.
Casey JC, the statute, which speaks to bias and prejudice and due process.
>> Was the statute followed here? Was was there a petition that was presented to Chief Judge Burns?
>> No, but we weren't pursuing this qualification under the statute and the Supreme Court. Uh it was in the >> but but you're claiming reversible error now.
>> We are claiming reversible error and not that the judge should have disqualified himself. We're claiming that the ca that the opinion should have been vacated because the judge should never have been sitting to issue the order that it did pursuant to the KCJC. And the Supreme Court has recognized that they're alternate bases. The KCJC and the statute are two separate bases. The language of the cases literally says three different basis to seek disqualification.
So if you're seeking disqualification under >> request with the affidavit with the chief judge.
>> No, because again that's part of the statute. That's part of 2311. We weren't proceeding in >> but but if but if you wanted him to be disqualified, why not pursue all of those avenues?
>> Again, it it is another method that was available to us. It wasn't the method we used, but we did use KCJC and the Supreme Court has repeatedly said that is also an alternate basis for seeking disqualification. The the language of the Supreme Court cases expressly recognizes that. So, I don't think we were required to use one method over another. The case law doesn't speak in terms of that. The statute provides the complaining party an option for somebody other than the judge that's being asked to recuse to decide whether he or she should.
>> And I'm not arguing about how the statute works, your honor. Again, we weren't proceeding under the statute. We were proceeding under the KCJC, which has been identified as an alternative basis for disqualification by the state supreme court. I'm I'm happy to answer more questions. I hate to spend too much more time because I'd like to get to our core issues >> more on point in my opinion.
>> Okay, I will move there right now. So again, defendant suggests that this case is about the national transplant system and policy decisions, but this is really just a medical negligence case. And to see that, I think it's important to look at where the negligence occurred.
There's no question Brandy was on the transplant list. Nobody disputes that.
And when somebody's on the transplant list at any given moment, their status is either active or inactive. And the way that happens is the hospital communicates that fact. It's like there's a switch. You switch it on for active, you switch it off for inactive.
And that comes from the hospital. And in this case, Brandy had a brief episode of bleeding where she was put on temporarily inactive status, but the defendant then failed to flip the switch back on, which should have happened fairly quickly. And there's no dispute that Brandy was erroneously maintained in a temporarily inactive status for a significant period of time. The district court literally held in its own judgment that it was erroneously maintained temporarily inactive status. So there's no question that the hospital made a mistake. Would it ever have been proper for her to be in temporarily inactive status or was it just a miscommunication between the physician and the person who um actually typed in that trigger?
>> So, frankly, there's a dispute about whether she should have ever been inactive at all, but if assuming that she was, it was for a day or two and she should have been quickly moved back to active status. And again, the district court recognizes it was erroneous to leave her on inactive status. And defendant recognized that there was a period of nearly two months from September 8th to October 27th when she would have been eligible for receiving organs. And defendants experts have explained that she likely would have gotten one and it likely would have saved her life. But not only did the hospital fail to keep adequate records, the hospital also failed to communicate with its own patient. It was a hospital's practice that when a patient was put on an active status, they would inform the patient of that and they didn't inform Brandy.
>> Who has the power to put somebody on the donor list or take them off?
>> It's an entire process. It it to be frank, your honor, I don't know all the details of the ins and outs, but again, there's no question in this case about whether Brandy should have been on the donor list. She was on the donor list.
There's no this this case isn't about whether she should have been on the list or not. It's simply about whether that inactive switch should have been flipped back on to active and rather than being left in the inactive status. And the hospital also, not only did it fail to inform Brandy she was on inactive status, but the hospital then on two occasions when Brandy contacted the hospital to ask about her status, the hospital erroneously told her that she was fine. She was active. he was still on the list. So we have three separate acts of negligence and the court should have dealt with those from the perspective of the reasonable standard of care. Uh Kansas courts have long recognized that that is the standard for a hospital that a hospital it's in the pick instruction. A hospital's duty is to use a degree of reasonable care required by that patient's known physical condition. That's the long recognized standard in Kansas. Rather than focusing on that standard, instead the court looked at the specific task and it defined the duty in terms of the specific task. And can I get a drink of water real quick, your honor? I apologize.
>> I woke up a little raspy this morning.
And >> these allergies, right? These allergies.
Welcome to July in Kansas.
>> I apologize for that.
>> It's no problem.
So theos the judge should have addressed the duty from that perspective and the duty arises from the hospital patient relationship. It doesn't arise from the specific task that the hospital happens to be engaging in. And that distinction is important and it was addressed recently by the Kansas Supreme Court in the Rearen decision. The court recognized in Rearen that we apply a reasonable standard of care and the reason we do that is because it allows courts to avoid quote infinite factual circumstances that could exist. So in other words, rather than having 300 separate duties that a hospital might violate depending on which specific action you happen to be talking about, we have an overriding duty of reasonable care. And it's a jury's job to decide whether specific actions violate that general duty.
As I read the the district court's decision here, the district court essentially concluded that because there is not a common law duty or there isn't any right to be placed on the list to begin with, then that means that any any thing having to do with that list doesn't trigger a negligence claim.
Is is that an an accurate description of the finding?
>> I I I think that is the essence of the court's finding. I think that's absolutely incorrect both factually and under Kansas.
>> So where is the where is the the action I think that you've identified three things, but could you help me just parse it out a little bit more? Why is it that despite the fact that there is no common law right to be placed on on the the list that we nevertheless can reach the negligence claim in the absence of any kind of triggering right?
>> Well, again, we're not first of all, we're not talking about the right to be placed on the list. She was on the list.
Nobody disputes that. There's no question. The error was the hospital's own recordkeeping error. It failed to update its record to note that she was inactive. its record still said it was active. Do hospitals generally have a duty to appropriately keep their own records? Yes, they do under Kansas law.
But it's not a specific duty about record. It's their general duty of care.
Do hospitals have duty to communicate with their own patients? Yes, they do.
But it's not a duty about a specific task. And when we talk about, you know, defendants raise this idea that well, because transplants are heavily regulated at the federal law, this is just different. Medications are heavily regulated at the federal level and yet that doesn't change Kansas law of negligence. We frequently have cases with hospitals involving medication errors. Defendant similarly makes the argument that well the federal law doesn't create a private cause of action. But again, medication's highly regulated and those medication regulations don't create a private cause of action for somebody to complain about a medication error. that Kansas has long recognized that medication errors are an appropriate basis for a negligence claim. I see my primary time is out.
Unless the court has another question, I'll wait for rebuttal.
>> Thank you.
>> You have three minutes that are reserved for rebuttal.
>> Morning may please the court. Um we have a mild disagreement on the order of presentation here and if it's okay with the court I'll address the right of action first and then the other issues after that just because I think that predominates. One of the things that um that's sort of lost in this is that we would not be here talking about anything but for the national transplant waiting list that is a creation of federal law.
So in 1984 the federal government passes this act that leads to this final rule that is the creation of the list and the background for that act was um attempting to make good stewardship of organs that become available get them to the right places where they can be used and avoid wasting and then also to eliminate an emerging black market where you sell donor organs to the highest bidder. So this standardized the entire process. It created this list and it created the concept of being a transplant program participating in the list which you must be. So the University of Kansas hospital has a transplant program for certain services.
Each hospital declares what they can and can't do on that but they all must participate in the list. So the list itself, it's undisputed here. There's no right of action in the statute that allows somebody to contest their status on the list or whatever, take some action seeking to gain status, keep status, override medical decisions, whatever that is. That is not a statutory cause of action. Granted, the question here is, can you simply do an endound on that by affixing a common law negligence label to exactly the same thing? And so here, >> so I I want to stop just a little bit and are there any common law negligence claims that could arise out of a transplant?
>> Transplant generally.
>> Generally, >> so once you endeavor to undertake the medical care, I think that you you convert over to the usual medical standards if you're >> when does one convert over to the medical >> when when we're doing a transplant surgery. So if if I can back up a step, if it would help, I can talk a little bit about the transplant process.
Um if if you look at so what are all the stages between potential candidate and transplant recipient there are lots of people sent over for evaluation and a committee of of physicians has to decide is this person a valid candidate to be on the list at all first. So that has a myriad of things that by regulation are set out they have to consider. They include things like behavioral issues that might affect compliance because you have to maintain a rigid compliance with any rejection regimens and things like this.
It might include whether or not the person has past issues that may be repeated that would cause you to lose the organ. Now, nobody gets it. These kind >> We can fast forward through this because Miss Sammons was placed on the list.
>> She she was. But what they're asking for here, they can't just say I want a common law cause action for these facts.
They are saying Kansas will be the first state in the country to notwithstanding the the National Organ Transplant Act recognize a new cause of action that allows somebody to litigate status on the list. That's the point of error is that >> but it is not it isn't it's a fact question isn't it that the KU agreed to put her on the list and by air took her off the list.
>> Well, she didn't come off the list.
That's one of the things you're opening this up. But I mean she became from active to inactive, >> right? Which temporarily inactive. This is a thing that's required by regulation.
>> But boy, that temporarily inactive period was unfortunate.
>> She missed five. She was first on the list for five transplants, wasn't she?
>> No.
>> That inactive period.
>> Well, no. We would contest a lot of the facts, but we're >> This is what I'm saying. Yeah. We're we're assuming a lot of things on their behalf. Really, it's a question of law.
Can we also assume that it was erroneous to place her on temporarily inactive stat status for summary judgement purposes?
>> I would say that it's uh right to conclude that their evidence was that internal designation and the actual listing status did not match. She was made temporarily inactive on the national transplant waiting list.
Whether that was an error or the other one is a point of debate, but you can assume there is disagreement between those two and you wouldn't normally have that. Once the hospital uh following this process that you had described which is a seems like a very rigorous process to place a person on the transplant list. Once the hospital has decided that this person should be placed on the transplant list, do they have no duty of care toward the person to make sure that they aren't that the hospital doesn't screw up to to to remove that person temporarily from a potential transplant?
>> Well, so the question though is do they have a common law right of action in tort to claim like they say here?
>> Do they have a duty of care toward their patient? Well, that's his point. At that point, are they a patient or a candidate? What I'm saying is once you undertake the medical procedure itself, it it's a lot more clear that you have the medical duty of care that applies.
But at this point, when you're talking about enforcing status, they have a duty of care. If they did, let's say, I mean, would that then give you a right of action that arises out of the subject matter of the National Organ Transplant Act? because there's not a >> but it's but is this out of the subject matter of the national organ transplant list or is it just hospital as part of this person's treatment place this person on the list whether you know following all the procedures she it's not like she had a cause of action to be placed on the list but hospital has placed her on the list and then through hospital's error has prevented her from actually receiving the benefit of being on that list >> what's the universe of claims I you're not supposed to answer a question of the question but forgive me the >> why don't you answer my question?
>> Well, that's what I'm going to try to do. The the question is, okay, let's say that there's a medical decision that she should be temporarily inactive. Does she have a cause of action in court to litigate? I think that was a result of negligence. I think that decision should have included another evaluation or should have it was an unreasonable judgment. I'm saying now in court, I had the right to stay to be on the list, to stay on the list, and to stay in active status such that then now you're litigating those things. Would you have a cause of action then to say I don't think the surgeon should have rejected an organ as not having sufficient quality to be transplanted because that's the only >> that's not the question that we have.
The question we have is whether under the facts of summary judgment right taking everything in the light most favorable to the non-movement whether given the error by the hospital as to the you know basically fli flick flipping the switch um and putting her on in temporary and active status.
Assuming that that was erroneously done, then is there no recourse?
>> Well, when you talk about recourse, >> is there no recourse in the law? Was there no duty of care that was owed to the patient?
>> Well, there's no enforcable action of negligence that arises out of a status on the list. That's because that would have to be granted by the authority that creates the list itself.
>> Who has the power to put a person on the list?
>> A transplant committee. And they have >> the the this the hospital.
>> Well, um the hospital's transplant committee, but it's made up of physicians. This gets into an irrelevant issue, >> right? But I mean, but it's is in in essence, the hospital has the authority to put a person on the list and the hospital has the authority to maintain that list >> on the orders of its physicians. That's why I say it's >> Well, I understand that. I'm not trying to >> but we're not dispute but I'm just trying to get to who has the who accepts the duty to put a person on the list.
>> That's I think what I'm saying is I don't think you ever have a duty to put somebody on the list. I don't think that that is a medical judgment.
>> But once you put somebody on the list, who has the duty to properly maintain the eligibility on that list?
>> Well, so that's I think what gets to the point, right? is when we talk about properly maintaining eligibility, then they're asking for the opening of a new cause of action that arises out of the list. It would not be limited to does this match this. It would have all of the you would just get to claim a duty of care and that it includes whatever you list that to be. I don't and you can say you have a duty to evaluate me correctly and I don't think that I think that was breached. You have a duty to reach the right conclusion. I think that was breached.
>> That's not their claim, is it? Well, >> claim is that the failure to maintain the list.
>> Well, that's their that's their claim.
That's part of their claim. I I agree with that. But that's not what the question of law will be. The question of law will be, is this state going to be the first in the country after 40 years to recognize a common law right of action that affixes a negligence label to the exact same conduct or the exact same subject matter that is in the transplant act of 1984. And keep in mind, of course, this was raised and the challenge was presented. Okay, find a case where this has actually been allowed to go forward. And there has been none. They've cited four cases in the briefing. Three of them are federal district court cases. One is an unpublished Michigan Court of Appeals case. And none of them is actually on point. And if we wanted to discuss that, I would I would get into that. The the point here is that they have not been able to identify if it's existing common law that allows this. Where are the cases where this has been allowed? It strikes me though that this is this is a factually unique situation because in in many cases there could be an allegation but it would be very difficult to talk about causation whereas here there at least seem to be some facts again at the summary judgement stage but there seem to be some facts that um put causation into play. So, so I mean the fact that there are no cases doesn't surprise me.
>> Well, I think you would have to think along the way that people who want to be on the list. At some point, there would have been something that arose out of this, something that alleged uh or or court said, "Yes, you can claim status."
Remember, this is what the core of the claim is. It's a claim to active status.
A specific status, not just something like >> is it a claim to active status or is it a claim and maybe we're just going round and round on this council, but is it a claim to a particular status or is it a claim that the hospital ered and by that error prevented me from accepting a transplant that otherwise would have been available because I was on the list.
Can I break that into two parts really quickly? Um the the first is the claim of error. I mean says this. It says the hospital owes no duty to maintain a person as having an active status on the national transplant list when such status is warranted. We may quibble with how that phrases the district court's order. But that is the core of it. They are claiming a right to active status enforceable in hindsight. and they've now pointed to to Rearen as suggesting I I don't think it's correct to interpret Reirdan as an attempt to basically broaden Kansas to law to the point where it becomes a big due process violation where you absolutely never know what your obligations are such that you can comply with them on their affirmative acts. The rearen itself said we're not we're not splitting the claims. I mean that was the context for that case. So you can bring causation into a lot of things. That's that's often going to be a debated point. But where the rule of law exists is to say even in those times this is just not a box we're going to open. And here that is absolutely what they're asking you to open is this box that says people can now come in in Kansas and litigate their status on the list and say it should have been active.
This is what gets to the causation issue you raised just a minute ago, your honor. The there are are a myriad of steps between placement on the list and receiving a transplant. And that was much of what was glossed over in some of the briefing underlying and then on appeal. You you I mean I know you don't I don't want to take the rest of my time going through all of them, but there are a bunch of judgment call. You can get an organ offer and not get a transplant.
That happened to Brandy Sammons once when there was an offer but the surgeon said that is a pancreas of insufficient quality to transplant. The only offer be becomes immaterial at that point. None of this is material unless you are claiming an entitlement to eventually undergo the transplant itself. That's the other end of this and there are a myriad of things you have to come to the hospital to get there in time. you have to be in a reasonable condition such that you can withstand the surgery etc etc and those are all judgment >> questions about approximate cause are so tricky right but but the the ultimate question as to whether we have a cause of action at all um kind of presumes that those could be made those showings could be made >> well you would it would open the right to litigate each of those decisions so you could litigate each of those against the surgeon say I don't think it was of insufficient quality And I think that was an negligent evaluation. You'd open all of those things up for examination and you'd put litigation finger on the scale of deciding who does and does not have a chance to get transplant because there is far more demand than there will ever be supply. And >> could you and I I just being wary of our our time.
I am troubled by the relationship between the district judge and the board member. I I I find that very troubling. Are you troubled by that?
>> I would say that I am I troubled by that just in the abstract. I would say no because I didn't see any manifestation of bias. It was not something that was dis discussed and I don't think particular >> I mean it wasn't discussed because he didn't bring it up.
>> I Right. And I say when you say are you troubled by it. Am I I think I'm not trying to >> as a as a an officer of the court.
>> Sure. Well, this gets into a different discussion about we're we're probably the worst people to be heard on this which is why we said look this is a matter for we judge Mahoney doesn't have to rely on us to speak for him. Who would listen to us on this point anyway if we don't make the connection kind of a thing. But ultimately the overarching premise of that rule is when a reasonable person would question impartiality. That's that's the premise, right?
>> Well, let me well, let me jump in on that because his order denying the motion for disqualification said for the reasons stated on the record, the motion is denied. Well, I went back and read the record last night and he didn't give a reason.
And so, would that in and of itself, the fact that, yeah, my sister's on the board, um, but I stand by my previous decision and that's that's pretty much it. You can appeal me. I mean, that's pretty much it. Is that in and of itself, the fact that he didn't really address it at all, is that evidence of bias?
>> Um, I don't think I could. No, I don't think it's on its own evidence of bias.
I think that the idea of bias would be as it manifested in the actual order that was being challenged. And and remember that they're claiming it was void. I mean, that to me is the more essential question is, is this order totally void? Because the idea is he should have disqualified the first I I mean that's one of those things where you can't weigh in on that if you're me because I can't tell you what the judge knew. I can't tell you what he concluded about when a reasonable person would I mean for example let's say he hypothetically concludes Yeah. but that rule doesn't mean uncompensated membership on a 19 member nonprofit governmental entity board or whatever that you know that's up to the judge to decide not for us to declare it. So is that manifestation of bias? I would say I don't I don't think on its own it would be. But then is that then representative of bias in the final order? I say absolutely not because that's just a pure question of law. He in fact treated all the facts and as in the light most favorable to the plaintiff. There's no evidence he discounted some facts because he or or made statements that suggested he wanted a certain outcome over the other. I mean all of the cases in in the Kansas case law have as judge warner identified spoken of okay what's the ultimate effect on the outcome because this affects the litigant right if this order is void sorry keep doing that um then we start over right that's that's the idea so there's not even an an allegation that if there let's say was some sort of internal bias that it produced something that alters the the proceedings because it's a pure question of law so I've gone way over my time sorry >> but isn't it a the opportunity to avoid the appearance of an impropriety.
>> You mean the the disqualification? So, >> I mean, the the judge has a self- internal clock that should say, "Hey, I I should maybe I should step out of this. There's other judges that can do it. If not, somebody else in the county can't do it, then the Supreme Court can assign somebody from out of district."
>> That absolutely is an option for them.
That's why I say I mean I'm I'm struggling here just because I'm >> well I I know >> him on an ethical basis.
>> I'm just saying I'm not trying to put the ethical side of it. I'm just saying the the appearance um >> well would a reasonable person question impartiality in this scenario? That's I think ultimately what that rule requires him to decide. Now, it does have a sub.
I'm not disputing this, has a sub that says we would presume that if these things, but it goes really far and it says third degree and their spouses, partners. They're on a board. It doesn't specify what kind of board. You have to have a an economic interest. I mean, what are the situations that allow you to conclude a reasonable person would say, "This thing makes me question whether he's impartial." And it does leave it up to the judge to subjectively determine. Would it avoid it if you did that? Sure, I guess. But it'd also open it up to weaponization, I guess, at some point if you're gonna after the fact claim, well, we should just invalidate everything that happened. That's to me that's the difference between like there is this separate question. I don't support to speak for Judge Money. I think he should have the right to answer that question himself. But the effect is ultimately the question here is does this void everything that happened? I think that the law says no. Even if you include well it would have been a better idea to avoid it by not uh by recusing disqualify.
>> Thank you for your answer.
>> Thank you honor.
>> Thank you. Thank you very much. Councel, you've reserved three minutes for rebuttto.
>> Thank you very much.
>> Defense council said repeatedly that we're seeking to create a new common law cause of action and that's simply not true. There's already a common law cause of action. It's called negligence and has been recognized by Kansas courts for a long time. And not only that, we have an instruction, a pick instruction based on Supreme Court cases which tells us exactly what the hospital's duty of care is in a negligence action against a hospital. There's nothing new here. Even defense council concedes at some point the hospital has to be responsible for its own actions. Defense council wants to draw that line when the moment the surgery starts. respectfully. I think the line is way before that. I I see no reason why this case should be different than any other where a hospital is responsible for its own actions that relate to the care of a patient. And that can be recordeping and that can be communication with the patient. And the district court acknowledged in its own order we have errors in both of those.
There's errors in recordkeeping and there were errors in communication. Um, so I don't I don't think we can just pick a wine and say, "Well, it's once the surgery starts." The hospital's failure in this case is is so clearcut.
And again, there was a lot of discussion about the list. Defense council spent a long time talking about the list and the policy considerations. Bry's already on the list. Nobody's questioning that Bry's on the list. And not only that, this isn't even a case where we're really arguing about the hospital's decisionmaking process in terms of being inactive because even the court recognized she was erroneously maintained in a temporarily inactive status. And the important word there is temporary. That was the whole idea. She should have been tempor if at all. She would have been temporarily put on in an active status and then quickly switched back on to active status. And that was the hospital's error here. And then not only that, the hospital compounds that error by never telling her she's been put on in an active status. And in fact, when she calls to check at least twice, telling her the opposite. No, you're active. Everything's fine. You know, you you have the you you are on the list.
You're available to get organs. So, before you conclude, I'll tell you something that I have been struggling with, and that is there is no common law right to a particular status on the list, right? or and there is no private right of action to have a particular status on the list.
The case law is pretty clear on that.
So what distinguishes this case where there was an error or a series of errors from a case when someone is is arguing uh the hospital decided to place me on temporarily on temporary inactive status but I should never have been placed on temporary and active status which seems much closer to the I want to be on the list and but I don't have a common law right of action to being on the list.
So, so what distinguishes this case from just a disagreement as to what your status >> I think it's always going to be fact specific. I mean, if if the reason that and again, those aren't our facts. The dispute here is >> we have to think about we have to think when we're writing an opinion, we have to think about this case. We have to think about the way that our words are going to be interpreted later. And so, what distinguishes those two scenarios?
So I because I think it is it's the it's it's a error that occurs solely within the hospital. That's why I talked about it's important to look at where the negligence occurs. This was a hospital recordkeeping error here. The hospital's failure to keep its own records. And that's not something new. There are many cases that involve hospitals failing to keep accurate records in one respect or another. And this case should be treated no different than any other medical negligence case in that respect. The same with communication. I mean, again, we don't define duty in terms of what specific task we're talking about. We define duty in terms of the overall duty of reasonable care. A and I don't think transplant cases are treated differently in that respect. Again, same with medication, as I noted, highly federally regulated area of the law. There's no independent federally created cause of action for medical for a medication error. But there are many cases where Kansas courts have recognized that when a hospital or doctor makes a mistake about medication, that's actionable.
Doesn't make any difference that there's a federal system for determining which drugs should be legal and which ones shouldn't and how we triage drugs. None of that makes >> I think that answers my question. And I did interrupt you right as you were closing. So if you'd like to take a few seconds and close.
>> Yeah. And and just in closing, I appreciate that your honor. Again, this order should have never been issued because Judge Mahoney should have been disqualified from the beginning of the case and the order shouldn't have been issued. But even if you do look at the order, I think the judge's order is entirely inconsistent with Kansas law regarding what the duty of care is for a hospital. I think that's been true for a long time, but I think it's especially true given the Rearen decision. And I would note the Supreme Court has doubled down on that analysis two times since the Rearen decision. Renadoos and I believe it was 22 and then again just last year in the case of Straoud v Ozark National 320 CAN 180. So this wasn't a case where the Supreme Court said something inexact and it's not clear what they really meant. The Supreme Court has emphasized it meant exactly what it said and in the Supreme Court's own rule own words duty rules are not meant to be factsp specific. That's where the trial court era here your honor.
>> Thank you very much. Thank you.
>> I want to thank both council for your arguments today and for your written briefs. Um, a very interesting case.
We'll take the matter under adisement.
We'll issue an opinion just as soon as we're able.
>> Thank you.
>> Thank you.
>> At this point, we'll call the third case on this morning's docket and allow everyone a little bit of time to turn around and and get into their places.
The third case also from Wandot County, case number 128644, Amy Whitney on behalf of herself and other similarly situated appellant versus the University of Kansas Hospital Authority. Um, Appali, the parties please state their appearances.
>> Jake Miller and Barry Gryom on behalf of the Amy Whitney and others similar situation.
>> Good morning. Lauren Tucker McCubbin on behalf of the defendant NLE's University of Kansas Healthcare System and its employee sponsor benefit.
>> Thank you. And uh Mr. Miller, would you like to reserve any time for rebuttal?
>> Five minutes, please.
>> Five minutes are granted. You may proceed.
>> May it please the court, Jake Miller, on behalf of uh Amy Whitney, appellent in this case. Um this is a simple breach of contract case. Uh the Supreme Court has already held in um this kind of contract provision does uh is a is a litigated case uh under the town decision. The town decision um in this case went back and said that self-funded plans could not um subregate against others. Right? So the appellies in this case have stated that there's no retroactivity issue here um or that retroactivity should not apply. Well, we find that the only um argument here today or really the the only question to the court is is whether retroactivity applies or not. Okay, that retro help me though in in the process of this case your client had already agreed to pay the subregation.
Um, yes, but that's the same as what happened in towns. Towns also paid the segregation, but >> and and the your case was concluded before towns was handed down by the Supreme Court.
>> We didn't have a previous case. We >> Well, your your cause of action was concluded. You your client agreed to pay the subregation expenses back to the hospital, right?
under a contract of adhesion. But yes, which is the same.
>> I'm not I'm not here to argue about it.
I'm just trying to get the facts. So, your client agreed to pay back the sum of money under segregation.
>> Yes.
>> It was a negotiated settlement, right?
It was it was less than what was initially >> not for Miss Whitney. For her husband, it was, but not for Miss Whitney. Um not for Amy Whitney. And the reason I answer it that way is because in town the Supreme Court noted regarding their segregation that um with it is a breach of contract claim within the uh policy if we're going to segregate monies under a contract provision that we find unlawful. Um that is specifically what the Supreme Court said in town and allowed them to retroactively actively apply to the previous 5 years uh for anyone who fell within the statute of limitations. the the general rule here on retroactivity and application is whether or not um how how a a new case is implemented.
This wasn't an overruled case. Um the appellies like to state that the that the Supreme Court overruled Sloan.
That's not that's not it. They did overrule Sloan, but they uh start with saying that the plain language of the statute and the regulation say that it it is meant to protect employees, not employers. And they never understood why anyone would ever deem it as an employer. And Sloan was a court of appeals case, not something that went to the Supreme Court. The Supreme Court noted that nothing was uh set should have been set as precedent in this case until the Supreme Court actually heard that appeal in towns when they overruled it. So it was not >> so so Sloan had no effect >> on >> be careful council.
>> Well no no no I'm not saying it had no effect >> because it was it was the law in place for 30 years.
>> It was but the Supreme Court noted that it this was the this was the first time they were interpreting the statute. This was the first time they were ruling on it. Sloan was was governing at the time, but they're saying that it wasn't merely an overruling of a case. It was the plain language of a statute that was being applied. So, it was not a new law that was being issued. It was a new interpretation uh that was being governed there.
>> Council, I'm going to go back that you said that then the town decision could be applied. I think you said retroactively to 5 years preceding that decision. And but that just means that anyone who hadn't filed a case up to that point who had a live case under the statute of limitations could file an action and would have the benefit of town as it the decision that was then the governing case law. That's no different from any other decision. Is that >> well and that's what the Supreme Court speaks to in Hall. Um our case was within that time frame. our case was within the statute of limit.
>> But but but but the difference at least in in my view the difference seems to be that the case you know could have been brought but the case was settled and final or the the dispute was settled and final before town.
So so it you know that case could have been litigated but it wasn't. it was settled and final. Does that mean that that any case that was settled in final within that period gets the benefit of a decision that's handed down potentially years later?
>> I would I would say yes. And I'm going to answer your question twofold if I may. First, uh the facts here are no different than town. Town town also settled his case. Town also negotiated a settlement that went if that were the case. Um if if we weren't saying that that if we were saying that was a settled case, then they wouldn't have been able to apply. Then they then the the Supreme Court would have kicked them down for saying you don't have a case.
You settled a case. You negotiated a claim. You paid back a segregation. That was all done in towns. It's actually noted in the opinion that they reimbured the plan because under these plans, I can't pay out my client who lost one lost their job because of this and the other was um off for some period of time. I can't give them the insurance monies they've received until I've repaid the plan. Right? So, I I I don't have an option to sit here and say, "Let's litigate this and let's wait a couple years and see what happens."
We're forced for our clients behalf to pay back those monies before we're able to give that money to our clients.
Right. So the the second part of that is um and sorry will you repeat the second part of your question about the >> my my question was does do we under your argument does that mean that any case that has been final during the 5 years before town was decided that any of those cases can be reopened and relitigated?
I would say so because under Steulty v.
Jennings the court has laid out which is the which is really the governing rule on retroactivity has really laid out that it applies to uh cases pending on appeal and also future cases. Now >> right >> future cases is not defined as an injury that occurs after the opinion is decided. Future cases is seen as an act as a case that could still be actively litigated. a case that could be sit here uh could still be filed. The Whitney, Miss Whitney is within her 5-year statute of limitations. Um that's why >> do do our rules of preclusive effect not have any effect in that regard once a case has gone final? Um I I I would say that if if it would then um and in fact under the doctrines it talks about an actual judgment that's been filed and verdict that has been filed. Those are the two that cannot be appealed on a retroactive position. Um if there's a verdict and a judgment out there on it, neither of those exist in this case. um a a simple us mailing a check-in to pay a lean off is not to me uh something that could be there. And and and to that point, >> let me let me let's take this a little bit differently. Let's take town out of it. I want to talk about um a few years ago, you know, there was a there was a cap on non-economic damages that was for $250,000.
That cap has been moved and and now held unconstitutional in some respects.
if cases were settled before that cap changed say for $250,000 because that's that's what they thought that the cap would be. Does that mean that all of those cases upon the change in the law that all of those cases can be relitigated under your analysis?
>> I would say it depends on that settlement. Was it an active court case that then had a some sort of a stipulated dismissal which would be considered a verdict or was it something that was a a settlement document that was signed by the parties? Neither of those apply in this case. There was no settlement document. There was anything.
Um >> well, there had to be something for you to pay them money.
>> They sent us a lean uh and said mail us a check. Um those were >> you negotiated the amount, right?
>> We attempted to. It didn't. To that I want to speak on something. Um there after uh the work on this case, um KU actually filed a lawsuit in Levvenworth County against our clients to recoup monies for what they were saying was money owed under one of the previous leans um in Levvenworth County. And so I find that very interesting because we were able to uh we counter claimed it, we fought it. It was a debt collections.
KU says, "Well, one hand wasn't talking to the other." My point on that is is if the analysis of the court is that a contract was binding and a contract was settling, why did KU ever file that lawsuit? KU doesn't file that lawsuit in Levvenworth County if they believe they had a final binding contract, a final binding settlement. It wouldn't have existed. So, um, that actually happened later after the case had already started. Is >> that part of the record, council?
>> It's not part of the record because it happened after. I do have the case number that I can bring up on rebuttal if you may.
>> Is is that an ongoing case?
>> No, we we when we pushed back um the the debt collection attorney backed off um and we we finalized it that way. It >> it strikes me that that's it's perhaps an interesting anecdote, but it's not something that we can take into account.
It's not part of the record on appeal.
And I understand that and and I'm not trying to do it for that mere case, but I I find it interesting that um you know, KU wants to argue that there was this contract and and and we had this final negotiated settlement, but then they're able to go back and sue, but we're being told we can't from their perspective. That's that's really the perspective I'm making there.
>> Council, I see that we're at the end of your opening argument time. Are there any other questions from the panel right now? All right. Thank you very much. You still have your rebuttal time.
>> Good morning, your honors. May it please the court. Um, as the panel's questions during the um, appellants arguments made clear, the relief that the plaintiff is seeking in this instance is the broadest retroactive application of the town decision that could possibly obtain. And that broad application is not one that has ever, to my knowledge, been applied by a Supreme Court or a court of appeals in the state of Kansas.
They're not asking for retrospective application or retroactive application to the parties to the town case. They're not asking for retroactive application of the decision to parties who had cases pending at the time that town was decided. Instead, they're asking for retrospective application to anyone who is adversely affected by the um allegedly adversely affected by uh the subregation that was obtained by the the plan against their tor their third party tort recovery. None of the cases plaintiffs have provided this court have reached that conclusion. Every case they have provided with respect to retrospective application has limited such application to the parties to the litigation in the overruling case and parties who had pending lawsuits at the time.
The standard for determining whether or not even assuming this court were willing to to branch out and adopt the first of its kind um general retroactive application. The standard is not the rule for prospective only um cases. that is is described by the plaintiffs in connection with the unrow decision.
Instead, it is the factors that are laid out in the sharp case and the vaugh case. And under those factors, it is clear that what the the relief the plaintiff is requesting is inappropriate.
Specifically, in that in in courts considering whether or not to apply cases retrospectively, evaluate a number of factors including reliance on the prior law. Here there is no dispute that there was 30 years of parties including the plaintiff and defendant relying on the the Sloan decision as the binding legal authority that permitted the plan to subregate against third party court recovery.
Courts also look at the adverse effect of a retroactive application. Um this court is obligated as the plaintiff has stated numerous times in its brief to accept as true the well-plated facts in their petition. Plaintiffs while seeking to represent a class and pursue the claims on a classwide basis have pleaded that there are an unknown number of people who might be affected by a retrospective application as they request. This means that there could be hundreds if not thousands of lawsuits that arise if this court retrospectively applies the town decision to the universe of people who may have been affected by subregation over the period of time that was permitted pursuant to Sloan.
>> Tucker McC.
>> Yes. Can I ask you? I mean, at the most base level, the language of the law did not change.
And so, your position is that this was a new law or that that town created new law. And then once we get to that, then we get to um you know, whether whether it should go prospectively or not. Um, but the fact of the matter is the the actual language of the law never changed and the opposing council stated this is just simply a different interpretation of the law and it's the first interpretation by the Kansas Supreme Court. So, how do you overcome that?
>> Well, we first dispute plaintiff's contention that this is not new law obviously. Um however it's not a necess you don't we don't have to make that finding to avoid the type of retrospective application that the plaintiff is seeking. That standard the new law standard only applies when the argument is prospective only. So here for example this court could decide that the town court's opinion applied prospectively to new cases filed and arising after the town decision and the party litigants to the town case themselves and anybody who had a case pending at the time that that finding does not require um or does not necessitate you to conclude that there was new law resulting from the town decision. that standard is only required if we're seeking prospective only application.
The other remaining factors that are described in sharp um frankly are argue in favor of not applying the broad retrospective application that plaintiffs are seeking and we discussed that at length in our brief. Um but nonetheless it is our position this is new law. For 30 years, the parties were operating as though this was, you know, crystally clear permitted because of the Sloan decision. Also, it was an integral part of the contract between the plaintiff and the defendants. In the record, you can see in the plan documents, it describes how the right of subregation is a vitally important component of an employer sponsored health plan. What it does is it permits the plan to oper offer benefits to the largest majority of participants because it protects the cost of operating the plans from increasing. What plaintiff is asking is to create a special class of individual members of the plan um who happen to have been injured and happen to have needed medical services by virtue of third party tor tors conduct and plan is advocating that those folks should get preferential treatment and be able to recover twice once under the plan and once from their third party tort recovery.
>> Council it sounds like you're wanting to relitigate town.
I don't know that we need to, your honor, because I don't think, as we've argued, that it that it applies retroactively. Um, but, you know, would my clients disagree with the outcome?
Yes, we think it's in it inconsistently um decided the case with the legislaturator's intent, which the legislature clarified by enacting the House bill afterwards. Um and while we don't need to relitigate town today, we can take into account the adverse impact on the plan participants who are not in this special subset of folks because that those are the people that will be harmed if their retrospective application is permitted.
They will be the ones that will be subject to having less money available in the plan to cover all of their health insurance benefits by virtue of potentially having to return monies that were obtained through segregation. But we don't typically decide whether something is prospective or retroactive based on um kind of policy decisions as to who it's going to be affected or who's going to be affected by that decision. Instead, we just decide, you know, based on these factors, is this is this decision one that should be applied broadly to all cases or is this a decision that is just applied basically going forward to the current to the current litigants and to other litigants who are in the process of arguing their case or going forward.
Right.
>> Well, I don't disagree with your characterization um entirely. I would just point out to the court that the factors that are cited in the sharp case include um the nature and purpose of the overruling decision, the party's justifiable reliance on the law as it stood before, the vested rights of the individuals who are involved um in pursuing segregation um and the adverse effect on uh the parties and the and the administration of justice in the event that the case is retroactively applied.
So I think it does permit this court to consider the adverse effect on the parties who who are harmed by the retrospective application of the town decision.
In short, our position is the district court got it right, but you with your unlimited review are entitled to um apply the factors in Sloan and reach the same conclusion or alternatively find that no that the opinion should apply prospectively only. Um we believe that this court should affirm the district court's uh grant of our motion to dismiss and we appreciate the court's time.
>> There are no further questions. Other questions from the panel? So, all right.
Thank you. Council, I believe you have five minutes that you've reserved for rebuttal.
>> Thank you. And I'll briefly touch on some of the um some of the statements made by by opposing council here. Um when we look at the perspective only application question and whether that is deemed there when the Supreme Court has used perspective only application they've listed it in the decision.
They've explicitly said this is a perspective only application of the law.
This is only going to affect other >> and they did not do that in town. So for it to really only apply perspectively why wouldn't they have said it here? Um and I think that's the crux of a case here. Um the district court aired when they ruled on this because they believe that silence meant prospective only but there's nothing in years of case law that says uh perspective only application is the general rule is what we default to. Um so I note that and and actually within hall uh Costco casco is is cited um which changed the the was a different interpretation of a workers compensation law. Um and in that case uh when they they it was the first time on appeal for the Supreme Court they interpreted a statute for the first time ever. They even noted within the appeal and as as it's noted in hall, it did not establish a new wall, new law and was uh not limited to perspective application, which is what was applied in hall to then go back and and predate using um essentially stating injuries that occurred within that statutory time frame. If it was still a case that could have been litigated, it it could have been and and should have been and would apply to the new Supreme Court ruling.
Um I I would also note that in instead Schultty um there's a couple factors that we see as they come down and and we see in Appelly's brief um how they they argue against it and saying that the court dismissed the two arguments instead Schulty but before the court ever got to that point um they noted that uh the application should still go to uh cases pending on appeal and also future cases. Um now I I will I will agree with the court that there's not a very clear or dictionary definition of what a future case would be. Um I think we are running into issues of straining interpretation of of what would mean within the statute of limitations to limit people who actually have a case that they can still be brought. Now, I'm not saying that the court should allow um filings from 20 years ago. Um and in fact, in I think in >> Are you arguing then that every single case that involved a segregation lean over the last 5 years can be reopened?
>> I think that the town's court spoke to that. They said there >> once those cases have gone final. So all those cases that have gone final between 200 when was town so yeah so so from 2019 to 2024 all of those cases that were settled all of those cases that were litigated on the merits and went final all of those cases can be reopened. No, because under um under the rules of of how the Supreme Court applies those through retroactivity, uh anything that has a final judgment, anything that has a a verdict attached to it um is done.
They say that there's nothing that says that a settlement would not be done in that case. Um and and I think it's um even a stipulated dismissal or something of a case that settled within court uh I believe would be deemed as having a verdict. So that couldn't be relitigated. But um the the one the segregations that happened within those 5 years, yes, I believe that that applies with as a future case because you have it. Now, I would argue that it's from today's date back to 5 years.
Those cases could have gone with towns, but if it was a middle of 2019 years, they'd be out of the statute of limitations. Now, I I note that because in the motion to dismiss, there was um some questions raised by Appelli, but that under our interpretation, we'd be saying we could go back 30 years to relitigate every case. And that's not what we're saying. We're saying cases that can still be litigated that are within the statute of limitations would require us to be able to utilize them.
And I state that because if the court didn't want us to handle it that way, then they would have applied perspective only application as they have done in Carol v. KD and many of the other cases um that the appell site they specifically list perspective application. They did not do so here. Um and and I would to the further point I want to bring up the legislation over just a couple seconds uh that was pushed by the defendants here.
If the legislature intended for it to not be retroactive, they would have made that statute retroactive. The legislature can always make a statute retroactive. They did not. They made it pursuant to July 1 of 2025. If they wanted that to be retroactive and say, "This question isn't for the court.
Here's our intent." They could have gone back and said, "Tounds was wrong. We're going to make this so that it's from January 1 of 2024." They didn't. you as as we're fully aware the legislature can always make a statute retroactive >> within reason there are limitations on that >> within reason but even if they had said January 1 to 25 something they didn't put any retroactivity in their statute whatsoever so I note that because we're talking about legislator's intent I don't think the legislature intended for any of that to happen until after July 1 of 2025 so thank you >> posting council talked about potential economic harm to current plan participants should that factor into a decision that we make?
>> I I don't think so because when we talk about unjust and hardship, first off, any of those decisions could have been made by allowing us to make it through a pleading stage, right? This was kicked out uh on a motion to dismiss and not further down the road on a summary judgement or something because how many plan participants have been affected by separation? How many plan participants are in the same situation as my clients that could have been recovering uh money? they could be in in a more be placed in a worse position than even that plan. Um and and quite frankly I think that's the hardship and injustice that's being applied.
>> Does that answer the question?
>> I think so.
>> There's any questions from the panel.
>> Would you like to close or are you finished?
>> My I've taken enough of your time. So thank you.
>> All right. Thank you very much. Thank you councel. We'll take the matter under advisement. Uh, I want to thank you for for your excellent arguments and for your uh excellent briefs. We'll get a decision out as soon as we're able. And at this point, the court stands in recess until 1:00 this afternoon. Thank you.
guy.
>> It did.
>> He had to recuse.
>> Check. One, two. Check.
I was nervous cuz it was 9:30 1:30 confirmed our kids and Right.
Is that >> What does the red light mean? It's on.
>> It's on. It's not getting recorded yet though.
It does off.
No, it's just it's a hot mic, but it's got a red light on.
>> Okay.
M said he was bad. I was hearing myself three times.
>> Some kind of regret. Sit down.
truck.
Yeah.
Allar ye hear the court of appeals of the state of Kansas.
The honorable Sarah E.
>> Welcome everybody. Please be seated.
Want to welcome everyone to the July 2026 oral arguments before the Kansas Court of Appeals. My name is Sarah Warner. I'm the chief judge of our court and I'm joined today by a distinguished panel. To my right and your left is Judge David Bruns.
Judge Bruns was appointed to our court in 2011 after serving on the Shauny County bench for many years, of course. And to my left, your right, is Judge Kim Schroeder. Judge Schroeder was appointed to the court of appeals in 2013 after serving almost the exact same amount of time as Judge Bruns only in Stevens County uh in Hugenan.
We will be hearing one case this afternoon in special session and after that we're going to uh recess and do some changing of personnel and come back for our normal 1:30 docket. That means I get to leave.
>> Uh, in preparation for today, we have thoroughly reviewed the record. We reviewed the briefs. Um, we have also reviewed a legal memorandum that's been prepared by a research attorney. So, we are very familiar with all of the facts that have given rise to this case. And so we encourage council, you've got 15 minutes, just jump right in so that we can get to the meat of this discussion.
And with that, I'll turn to the case before us from Shaunie County. Case number 129054, Kansas Highway Patrol, Appal versus Justin Dobbler, Appellant. Would the parties please state their appearances?
Alan Johnson and I'm here for the appellent, Mr. Dolbler.
and please court David R. Cooper, Crystal Mo, and KHP General Council Luther Ga for the highway patrol.
>> All right, Mr. Johnson, would you like to reserve any time for rebuttal?
>> Yes, I'd like for reserve five minutes.
>> Five minutes are granted. And with that, you may begin.
>> Mr. Court knows from reading the briefs, this is a an appeal or a review from a district court decision from Shauny County reversing a decision by the civil service board which had decided to reinstate Mr. Dober to his employment with the highway patrol after he had served a one-year suspension with no pay. Now, the main issue I want to focus on today is the fact that in reaching that decision, the district court took judicial notice of 16 facts that were not contained in the agency record. And it's my contention that the court district court aired in uh con considering those 16 facts and that this court under its scope of review which is the same as a district court should not consider those 16 facts. And I want to briefly >> let me talk a little bit about the standard of review. As you and Mr. Cooper both know, we're really bound by the standard of review. And I think you just said the appropriate standard of review, but I just want to make it clear. We're really reviewing the civil service board's final order and not necessarily the district court's order because our review is is the same as if it was appealed directly to us. Is that accurate?
>> Yes, I agree with that. and and towards that end, the 16 facts that the district court relied on are not in the agency record. And therefore, my position is the court should not consider any of those facts because they all related to the state versus Klein case uh and to a wrongful death case, both of which arose long after the civil service uh board hearing. They didn't rely upon that. It wasn't even before them. Many of the facts didn't exist in that point. and therefore those facts should not be considered. I agree with you, judge, that you should look at the record of the civil service board. You're reviewing their opinion. They had a very long lengthy opinion with many findings of fact. And the real question is, are those findings of fact that the civil service board made uh supported by substantial competent evidence? And is their opinion reasonable? And my position is yes. council, just just back to that because this is as you pointed out in your introduction, this is an interesting case because it's an appeal of an appeal of an appeal of a decision.
So, are we ultimately reviewing the Kansas Highway Patrols decision or are we reviewing the Civil Service Board's review of the KHP's decision? What What are we reviewing?
>> You are reviewing the Civil Service Board's decision. The civil service board is a little bit different than many agencies in that it uh once an appeal is made to the civil service board, they become what's called the appointing authority. They're the ones who decide um what discipline should be uh meed out to an employee and they have >> their review is limited.
>> Uh they have very broad power to make decisions on they can substitute their uh decision for uh an agency. The Supreme Court in Denning say that that review is actually a reasonleness determination. It's it's not it's not an unlimited determination. They just have they can only review and and reverse and change the agencies the the originating agency's determination if that determination was unreasonable.
>> Correct. And that's what the civil service board found. They found it was unreasonable uh based upon their view of uh what the discipline should have been. They raised some issues about the decision-making process by the highway patrol. They thought that um some of the decision making was suspect and they they thought that overall that the penalty of dismissal was too severe and that a more appropriate remedy which they're able to do was to suspend him without pay for one year.
Do you agree that Denning, even though I know it wouldn't be necessarily binding on this case, that it's persuasive to us just based on the language uh in the decision that that relates this? That was a county sheriff's case if I remember right.
>> But I think the standard would be the same. At least that would be your position.
>> Yes. Yeah. I think the standard is what was the decision by the civil service board reasonable and was it supported by substantial competent evidence but >> and I I bring that up because as I I I'm sure you can tell this the standard of review is everything in this case right and so in looking at who is the decision maker to what extent where and uh you know often when we are talking about a reasonleness assessment We are saying, you know, we're not substituting our judgment for what should have happened. We're just saying, was that decision one that was not unreasonable? Right? And so, is this different? Is this assessment that the civil service board doing or that the civil the CSB did, is that a different assessment than our normal reasonleness review?
>> No. not from looking at what the civil service board did. I think it's the the same and normal uh view. Now the civil service board though in looking in overseeing deciding what the agency did, they have the right under the statute to modify or change whatever that decision is. As I said essentially they are the uh appointing authority. Then the question for you and for the district court is okay well did they have a reasonable decision? Is it supported by the substantial competent evidence? Is it reasonable or was it arbitrary and capriccious? And I submit that it was reasonable in that they carefully went through all of the evidence. Uh it's a 19page opinion. I think single spaced.
They analyzed a variety of things. It was not an easy case, but they were very careful in going through that. And I think this is a diff this is a close case. The civil service board split three to two and um and they disagreed with what the highway patrol did. So again, I think that neither the district court nor you should sub substitute your judgment for what the civil service board decided because under the statutes, the legislature said we want the civil service board to be making those decisions where the employees are classified uh employees and have rights to employment. And so that's uh that is different than their review is different than you. I agree with you. your review is was it reasonable supported by evidence or was it arbitrary and capriccious and I don't think that you can say that it was not supported by substantial competent evidence because they went through in great detail what the testimony was they had three days of hearing in which they heard a number of witnesses they assessed those witnesses they decided uh that some punishment should be meed out to Mr. Dolbler, but that dismissal was an unreasonable u discipline for them. And that's really what you have to decide. Was that did the civil service board's decision to modify what the highway patrol did, was that a reasonable decision to modify that?
>> I want to make sure I understand. It seems like both sides agree that there was at least some You're not challenging that there was at least some violation.
And I I'm sure your client uh may personally challenge it, but here in this appeal, you're not challenging.
You're basically asking us to reinstate the civil service board's order, >> right? Uh so both sides at least then would agree that there was some type of policy violation, at least for the purposes of our appeal. And it really comes down then to whether or not the civil service board could replace its judgment for that of the highway patrol when it comes to the remedy.
>> Correct.
>> And I know there's language in the statute that says that they can modify.
What's that mean? I think ad u this court interpreted that that gives them very broad powers to uh modify a a decision employment decision to what they think is reasonable and appropriate under the circumstance. If we're reviewing it like they did we modify no you have a more strict yours is just asking is it reasonable supported uh by substantial component evidence.
>> So did you find any cases out there and Mr. Cooper I'll probably ask you the same thing. Did you find any cases that would help us understand what modified means? You know, to me modify means kind of let's change a little bit. Uh but this seems to be almost of hey, we recognize your judgment. We don't like that. We're going to just do something entirely different. Have you found any cases that help us understand? Well, >> just use plain language.
>> One case I cited was a decision by this court in which you said the power was very broad. didn't really delineate more than what it was but uh broad powers would indicate I content that you can modify and it's not simply just affirming or reversing it is modifying which is the language uh that is used in the statute and that means >> what needs to be found in order to modify >> um an unreasonable decision by the agency >> and is is an unreasonable decision a decision with which you disagree or does it does it have to meet some higher standard?
>> Well, in this case, I think the civil service board because they are the appointing authority. Once the appeal is made to the civil service board, the appointing authority is not the agency, it's them. And they have the right essentially to make a decision on what the appropriate discipline is.
>> And I think I mean you can see where our difficulty is here. If under Denning that review is a reasonleness determination, what what does that because that seems like a narrow view, right? Like a reasonleness determination. Was Kansas Highway Patrol's decision reasonable or unreasonable? And the the CSB agrees or at least accepts the facts that were found with regard to the violations. They just disagree with the ultimate outcome. Is the ultimate is is that a reasonleness determination or is that just substituting the CSB's judgment for that of the Kansas Highway Patrol?
>> Well, to some extent they can't. Again, I go back to the term modify. I think they can in some ways substitute their judgment because they are the appointing authority and and so the question becomes under all the circumstances is uh do they find that the highway patrol was not reasonable? And I think and I think they did. It was not um u like I said it was a very well-reasoned uh decision and justified and so uh you would have to find that that was an unreasonable uh or it was not supported by substantial confident evidence or was arbitrary and precious >> or it was taken in or it was it was a decision that was reached that was beyond the scope of that review.
>> Correct. You could find that. Yes. Then the remedy would if you said well civil service board you went too far would be remanded back to the civil service board with whatever instructions you think should be given to them because in the first instance they are entitled to make a decision based upon what ultimately you decide they should or should not.
Council, I think that we have uh >> we've helped you exhaust your time, >> right? Uh but you have reserved five minutes for rebuttal and we will look forward to hearing from you unless there are other questions from the panel. All right. Okay. Thank you.
>> Council, this is a fascinating case.
>> I don't disagree with you.
There are fingers that extend well beyond the bounds of this decision.
To address your first question, yes, this is a review of a review of a review a decision made by the highway patrol.
And we start with that there was the burden of the appellant Justin Dolbler before the civil service board to to bear the burden of showing his termination was unreasonable.
Now I also agree that the civil service board made the finding. It's in the black and white. They said termination was unreasonable but they don't tether that to any facts. And on page 31 of the KHP's brief, we use the dictionary terms of unreasonable. It's like, all right, so how did the CSB conclude that the highway patrol's decision to terminate Justin Dolbler did not reflect good judgment, was a rational, capricious, or an unreasonable decision. council. Reading between the lines, it it looks as though the CSB was troubled by the fact that there was this policy, but there was a conflicting potential policy from this operation Frontier Justice. And and so it looked it looked as though they thought it was less black and white than the KHP perhaps found.
>> Uh and I think they they found shades of gray where there aren't any. And that and that's okay. I in terms of the messiness again don't don't disagree with that.
This is messy from the beginning. Justin Dolbler I mean when you get way down in there started working for the Shauny County Sheriff when Herman Jones then the was the Shauny County Sheriff. He had problems with pursuits then and while under the shades of a grievance, a grieving discipline related to a pursuit, he took employment with the highway patrol long before Herman Jones became the the the colonel.
He gets he has a problem with pursuits in the highway patrol. He gets told to eventually gets told stop getting into chases in Topeka. That's the issue that that the civil board found conflicting in terms of he had been told quit getting into chases in Topeka. But he was then assigned to the frontier justice marshall's uh task force. Um which suggested maybe that order does not apply to him, but the command the the command in that is you are still subject to your agency policies. That gets us back to the black and white and let's and not the gray which is the agency policy which is what the civil service board agreed that Mr. Dolbler violated ops16.
He violated the pursuit policy and the one finding that the CSB did not sustain was the finding that he had violated the direct order.
But he did violate OPS7. he did kill somebody.
Those are facts and we would we'll we'll need to address the judicial judicial notice of of some of those facts. But the CSB found his >> Well, do we do we uh if our review is of this final order, what difference does it make with the I love district court judges. I know Judge Schroeder does as well, but uh >> I also love district court.
>> Good. Good.
>> But what difference does it make? We don't give any weight till that decision. Don't we go back to the to CSB's order?
>> Short answer is yes. And it doesn't matter.
>> That that's my thought. So here's what I I think I think and everybody agrees there's a violation >> at least one. Now maybe again maybe Mr. or officer Dolbler would disagree personally, but as far as this appeal, we have to agency policy opf6 was violated. So, we have to start with that premise and and it looks like the only thing that's really in question is whether or not the KHP's decision to terminate was reasonable or not.
>> Agreed. And against that background, against that decision, and that's why I talk about the um the judicial notice of all of those things, the judicial notice really isn't a judicial notice of any new facts whatsoever, but rather it's shining a really bright light on what the impact and the conclusion you must draw from these facts really is, which is the facts were already in front of the civil service board and they agreed with them and They found Justin Dolber violated Ops 16. He killed somebody in the process of doing it. When when presented his with his proposed termination, his response to that was, "I didn't do anything wrong."
And then he doubled down on that when he took the oath and testified in front of the civil service board and said, "Not only I didn't do anything wrong, but if I had it to do over again, I'd do the same thing."
So knowing what already happened and presented an opportunity to do a Maya, he says, "If I had to kill an innocent person again, I'd do it and I'd like you to give me a patrol car so I can do it again." That was the decision faced by the highway patrol and presented with his response to what do you what do you think we ought to do about the fact you violated these rules? His answer was I'm going to go do it again. Well, when you're presented with a decision with somebody who says, "I'd like to I'd like you to give me the tools to go commit constitutional violations."
The only decision that the command staff could make is then you don't need to work for the highway patrol anymore.
>> What about Mr. Johnson's argument and it is based on the statute that says that one of the one of the remedies that this uh civil service board has is to modify.
>> I agree with that and that's what >> what's that and you heard my questions to to Mr. Johnson but what does modify mean in this context? Well, of the menu of options that were available to the highway patrol, it was do nothing, reprimmend, suspend for up to 30 days, or terminate.
And so their menu of options to modify the the the discipline was to well, if termination's not appropriate, then the then the most that can happen is a 30-day suspension without pay. And they didn't find that was appropriate either.
And it is not a boundless go make up your own remedy authorization.
The all of this has to be within the framework of the civil service act itself. And when the civil service act says the appointing authority has these options and no more those are the options available to civil service board as well.
>> So them choosing to exercise a one-year suspension does that make their decision arbitrary? It does.
And I am asking for a remand to send it back and say leave the termination in place because a decision that anything other than termination is imminently unreasonable. That's what I'm asking.
That's what I ask for in front of the district court. That's what I'm asking for from this court as well. Why?
Because Judge Bruns, getting back to your question, if they could fashion anything they want for this case, one of the appropriate things would be, well, we're going to discipline you and make sure that you can never drive a car again and do this to someone else.
That's problematic in that that's not one of the menu of options. He's in he's in the classified civil service at that time. He was a he was a trooper. So there's no non-trooper position to reassign him to. So reassigning him to a position where he can't kill somebody was not would be what we're trying to accomplish. Well, we can accomplish that by telling him you come on shift, you do 5,000 push-ups, and if you can still lift your arms after that, then maybe you can go patrol the highways or something. In other words, do it so it's impossible for him to kill somebody.
That's not a menu. That's not a reasonable option either. So, the options that were available for the for the civil service board to modify the punishment is to remove it from a termination down to a 30-day suspension.
And they clearly said that that wasn't enough.
>> They found something in between. It does seem like that in addition to what Judge Warner indicated u that that the board was concerned with uh what they call an unusual way in which the review was handled internally. And it was a little unusual uh in that some of the supervisors went back and and modified the reports. And they also seemed to put some weight on the fact that he he did not lose his law enforcement certification and that the Shauny County District Attorney had not filed charges against him. Are those things enough to support their decision?
>> The fact >> determination was unreasonable.
Again, short answer, no.
>> And why? I figured you'd say no. If you said yes, we're done.
>> So, so the the longer part of that, um the fact that another agency does not decide to press charges, um the fact of the matter is the KETC or the SEOST never actually initiated any investigation. So, their decision not to take action was not based upon a review of the facts.
What? COST.
>> Pardon?
>> CEO. What is that?
>> Kansas Commission on Peace Officer Standards and Training. They're the ones who >> uh grant and descertify law enforcement officers.
>> I thought I had it right, but I just want to make sure.
>> Um, >> too many acronyms.
>> Uh, right. So, yeah. So, him saying that COST didn't pull my certification. Okay.
They didn't open an investigation. They didn't. That's a discretionary function to see post. That doesn't mean it's a reasoned. Well, they certainly didn't bless what he did. Um the decision of the uh prosecutor not to charge him with a crime. Again, prosecutorial discretion. We don't control that. What we control is whether we're going to give Mr. Dolbler another car to go kill somebody else.
Um and at the time those decisions were being made. Um that was before Judge Pickering um made the decision and exclude and made the actual finding that it was a fourth amendment violation applied the exclusionary rule all went up through they went up through this court review denied by the c the supreme court.
>> Do we even need to get into that? I mean it was subsequent.
It seems like your argument >> is that it was that the decision of the civil service board should be reversed regardless of all these additional things that happened after the >> right. All I'm saying is that that Judge Pickering's decision was a flashlight.
>> It's a fourth amendment violation. We we deal with Fourth Amendment violations a lot and we don't terminate every officer that commits a Fourth Amendment violation. Nor do we even exclude the evidence. Not even every violation is a is the result of killing an innocent.
>> But but that was already in the record.
That was already in the record below. We already knew what maneuver he did, where it was at, uh res, you know, the trailer park, all of that, passenger in the car dies. We knew all that. We really don't need all this other stuff. Nor do we need to look at it as since it was the district court and we review it as if the appeal was brought to us directly.
I'm I'm still agreeing with you on that and saying >> well I'm just wondering why why we even need to consider I'm sure Judge Malone did a nice job but why consider that opinion >> didn't the car chase stop over a broken start over a broken windshield >> cracked windshield that was it cracked >> we never had more cause other than the fact that they were they ran from it when we started trying to pull them over so again in terms of that's that gets into the heart of OPS-16, which is when you start a pursuit, you are required by policy to constantly evaluate one, the decision to start the pursuit and two to continue the pursuit and and weigh the benefit to the public versus the risk to the public by continuing that pursuit. And here truth >> council council I we keep talking about the facts and we acknowledge we we acknowledge there was a violation. So here's what I keep coming back to is is ultimately this standard of review question how are we what is our standard for determining whether the CSB properly exercised its authority when when that review was a reasonleness standard.
What is what is our standard to determine whether that decision was in fact exercised within its appropriate authority?
>> Hard questions by associates. Answer is almost always what does the rule say?
The rule here is did the CSB erroneously or interpret or apply the law? Was their decision lacking in substantial evidence and was it unre was the CSB's decision unreasonable? And one um Colonel Jones decision to terminate Dolbler was reasonable. It was not unreasonable. Their conclusion otherwise and coming back to Judge Bruns's question and the deal about all the facts is the idea that reinstating Justin Dolbler is unreasonable because it ignores the constitutional the enormous dimensions of his admitted behavior which you say are just the facts. Well, those facts are so significant and so important that any decision other than termination is by definition unreasonable, arbitrary compressions. That's why I'm asking you to remand it and that with directions the civil service board to affirm the dismissal.
Thank >> I I do want to follow up just make sure I understand.
>> Um if if they were going to modify, it's your position that there was a menu of options that they could do and they just could not create out of whole cloth their own remedy is basically.
>> Okay. And and what were those options?
Termination and 30-day suspension.
>> 30-day suspension.
>> Any other options?
>> Reprimand and do and do nothing.
>> Okay.
>> Any other questions from the panel?
>> All right. Thank you. Council >> got all mine.
>> Mr. Johnson, I believe you've got some rebuttal time up here with us.
>> Judge, I just want to follow up again on the scope of review, which I agree is a difficult question to decide, but the statute um which is 752929DB uh not only uses the term modify, it also says that the board may order any other action it deems appropriate. And uh as the as the decision I cited in my brief in the Del Sio case, this court said that's a very broad uh uh grant of power. And so that's what they did in this case is they decided to modify it and order what they deemed to be appropriate. So then the question becomes okay is that >> case why include a menu of options in the statute?
>> A menu of options for what?
>> For potential outcomes for the CSB's decision. Well, I I think it's those were not limiting ones, but maybe more examples because the the power is is broad. They can modify or order any other uh uh action they deem appropriate. That's that's pretty broad.
>> Usually when we hear language like that, we think that includes like catchall potentially like uh you know, equitable relief, it fines, costs, etc. Does that mean it it appears that your argument is it basically nullifies all of those menu of options? They can do whatever they want.
>> Well, I would say that my position is they have broad discretion under that decision. So really, did they abuse that discretion? Was their decision so far the mark that no reasonable person would take that? And that would be the standard I think you have to look at which is a difficult standard to overturn what the civil service board has done is that they acted unreasonably meaning that they abuse their discretion that they took a position that no reasonable person would take. And >> is that different from the reasonleness assessment that the civil service board does? Is is our assessment as to whether the CSB's decision was reasonable a different assessment from the CSB's decision as to whether the patrol's decision was reasonable?
>> I would say yes. I they well they have broader authority to u provide a remedy.
This court can only affirm and reverse.
They can modify what's been done. they can order something else that was not done which uh under the judicial review act you can't do. So they do have my position is they do have broader authority than you do when they review the civil service board.
>> So they have a broader menu of options but what about the reasonleness determination?
>> I it has to be reasonable. I'm not disputing that that what that their decision, the civil service decision that the agency acted unreasonable has to be a reasonable uh position. Meaning, is it supported by substantial competent evidence and is and would it be within the realm of reasonleness that reasonable people could disagree as as the board itself did? They disagreed on what it ought to be. And that's my position. Reasonable people can disagree on what this is, but their decision was not so far wide of the mark that no reasonable person would have accepted it.
>> So what what evidence is there in the record from your perspective to support the finding that quote termination was unreasonable close quote?
>> Well, the Civil Service Board didn't look at the Fourth Amendment, any of those issues, because it wasn't before them. most of those things.
>> Well, I'm saying what what evidence is in the record before them to support their finding that termination was unreasonable?
>> Well, they looked at the policy of the uh the internal policy of the highway patrol and they said considering all the policy all the factors listed in that policy based upon the evidence we heard, we think that that was unreasonable. And they went through, as I outlined in my brief, they went through four different categories in analyzing why they thought the um highway patrol had acted unreasonably and why they thought their own decision to modify or uh have a different decision was a more reasonable uh position.
And I see use my time. Thank you very much.
>> Thank you.
>> This was as I have indicated a very interesting case. The court takes the matter under adisement. And I want to thank council for your excellent briefs and for your uh discussion here today.
We'll issue an opinion just as soon as we're able. And at this point, we're going to take a brief recess so that we can uh do some choreography and personnel changes up here and we'll say goodbye to Judge Bruns for the time being and we'll be back. I was just a relief pitcher >> to to hear the the remaining cases this afternoon in about five minutes.
>> Waiter.
>> We shall see.
I So wonderful.
Yeah, this girl years.
We're not All right.
Sorry.
>> All right.
>> Hear ye here. Hear ye. The court of appeals of the state.
The honorable Sarah E. Warner presides.
Welcome everybody. Please be seated.
Want to welcome you all to the July 2026 oral arguments before the Kansas Court of Appeals. And thank you for your patience just now as we did some kind of changing of seats.
My name is Sarah Warner. I am the chief judge of our court and I am joined today by two distinguished jurists. To my right and your left is Judge Kim Schroeder. Judge Schroeder was appointed to our court in 2013 and previously since 1999 he served on the district court bench in Stevens County in Hugaden. And to my left, your right, we are very pleased today to be joined by Judge Jason Guyire from the Shauny County District Court in the third district.
Uh, Judge Guyire has served on that court since 2017.
We will hear two cases this afternoon.
And in preparation for those cases, we have thoroughly reviewed the record, the party's arguments in their written briefs. Uh we've also reviewed a legal memorandum that's been prepared by a research attorney. So we are very familiar with the facts of all of those cases. So we encourage the attorneys in those cases to just jump right in because we of course only have 15 minutes of argument per side. So with that, we'll turn to the first case before us and that case is from Wand County, case number 129703 in the matter of the marriage of Rachel Hail Appali and Scott Hail Appellant.
Would the parties please take their positions >> and will the parties state their appearances? May please court your honor Mark Roarball on behalf of Scott Hail appalent. I'm with the law office of Dan Stewart.
>> Thank you.
>> Good afternoon your honor. May please the court petitioner appelli uh Rachel Cooper formerly Rachel Hail appears in person and by and through council Patrick Johnson of Kansas Legal Services.
>> Thank you. And Mr. Warba, would you like to reserve any time for rebuttal?
>> Five minutes are granted. And with that you may come forward and begin court.
Thank you for uh meeting this afternoon uh to hear this case. Um much like they were arguing in in the case uh before us, I think the standard of review is one of the important elements and there's uh disagreement on the brief of what that standard of review would be and so I'll spend some of my time with that. But just as a large overview, um you know, I had a Mr. Mr. Hill and I had a tough couple of months last summer with Judge Albby where uh we found a court that was u that was you know hostile towards not only our arguments but seemingly to the litigant personally and made many assumptions about facts that were never in front of her. Made many um dismissive um comments u about uh Mr. Hail um and said things like, you know, this uh uh that's all fine and dandy. Um I'm sure that's what he thinks. Um um congratulating um Mrs. Hail and telling her she was sorry, you know, assuming that everything that um she alleged had happened wasn't fact true when no none of those facts were ever before that court. All there were were statements of council. Mr. was never even present at his own divorce trial. Um, so I come in after the fact and I've got a simple argument.
My argument is due process, procedural due process. Um, council argues that, you know, two points and I agree that it's a notice and an opportunity to be heard in a meaningful way. The notice is not the issue. It's the opportunity to be heard in a meaningful way that um, I believe my client was deprived. Um he had a power of attorney that made arrangements, attempted to make arrangements. She testified in court that she called the court a week in advance um talked to staff um so that Mr. Hail could be there in person um and that she believed that he would be there when she arrived at the date of the trial and Mr. Hail wasn't there. She was surprised that he wasn't there.
Attempted to address the court, the court wouldn't hear it. Wouldn't allow her talk. You're not an attorney.
>> Let me let me stop there. Where is that in the record? because I reviewed that hearing and I did not see anywhere uh where she attempted to interject or speak upon Mr. Hail's behalf. Um, well, I guess I guess I don't have a page site in front of me and I it it'd take too long to find to to be meaningful to you, but it's my understanding from my recollection that um that the power of attorney, Miss Bel, who's here today, was there um and >> I know she testified to that, but it at a later hearing, but I didn't see where she was there >> at the trial date.
>> Correct. I'm not sure if that part was was on the record, judge. I don't know if that happened as part of the court proceedings or if she stood up either before after record was made. And I personally was not there. So, the record might be silent as to on the November trial date as to exactly what Miss Bel um said to the court that day, but her testimony uh later when she was called and sworn in was that she attempted to address the court and and was not allowed to. council, whose responsibility is it in a civil case once you've received notice that a hearing is going to occur? And I understand the circumstances here and why Mr. Hail was not present, but but isn't it still his responsibility to notify the court or to request a continuence? Is it the court's responsibility?
>> No, judge. Here's what I would say to you. and and we the uh uh Supreme Court in Matthews says you know every case is different and we need to take a look at the at the factors in each case and apply um the the test in this particular case and in this particular case u Mr. Hail testified to the judge that he did not want to continue that he wanted to go forward and that he had um made requests from the jail to go um a day and a day but not until that day >> not until that that day or day in advance. I agree. Um, not with a lot of advance. And he testified that he had been brought to all his previous uh, criminal trials and he didn't know why the civil would be different, but he had also had his power of attorney call a week in advance and request it and and she >> But but a power of attorney is not an attorney.
>> No. But you don't need an attorney to call the judge uh, and request that someone be there before their trial to let them know that they want to be there. I don't think that takes an attorney at law uh to do that. I think you could have your girlfriend, your wife, your next door neighbor, anybody uh inform the court that the person in custody would like to be there at their trial and the court uh should have been made or in my understanding was made aware that he was in custody and wanted to participate. Um and she just simply wouldn't uh continue it. uh she could have continued it for 30 minutes and called over to the jail and asked uh if they could bring them down because they're literally in the same connected buildings.
>> That's what that was my question is where's the jail in relationship to the courthouse?
>> They're literally connected. They're they're they're probably technically two different buildings, but they are connected buildings. And he was he was housed within yards of where the courtroom was. So this idea that it would have been difficult or expensive um or burdensome um in order to get the person there does not apply in this case unlike some others where they were in federal custody in Florida. We didn't have that. We were in the same functionally the same building where the trial was.
>> I'm going to hit on two things you just said. First of all, you said your client assumed he was going to be brought over because he'd always been brought over in his criminal cases.
>> That's what he testified to, >> right? Um, assuming that's true, um, number one, this wasn't a criminal case. He made an assumption. He made an assumption that was incorrect. And this wasn't like a pleading that, um, judges are are too liberally construe. When he decided to represent himself, the court could give him, um, neither an advantage or disadvantage by proceeding prosay. The law's pretty clear on that. he decided to represent himself and wouldn't in some respects uh the court be giving him an advantage by ensuring uh that he either had a continuence or was brought over. I mean I isn't that his responsibility?
>> And I would say to you, your honor, if that were the only thing is that he asked to be brought over the morning of if that were the only thing he did, their argument would be much stronger.
But the fact that he had someone on the outside with freedom ask on his behalf.
>> And that's where that was going to be my second question. I hear a lot about this power of attorney and I know his power of attorney testified at the second hearing, but any sort of power of attorney document I do not see in the record. Um, she she says that she called the week previous, but her testimony was I don't remember who I talked to.
>> Talked to a woman whose name I did not get.
>> Right. It's it's very ambiguous. Um she said she tried to speak at the actual hearing, but there's nothing in the record that that says that other than her testimony, it's all very um at best it's ambiguous.
Um and so when you say if that's all they had, if that's all the other side had, um they may be on to something. But there was this other individual that was, for lack of a better term, advocating on Mr. Hale's behalf, but quite honestly, I don't see a lot in the record that indicates that.
>> Well, her her sworn testimony under oath in open court says that she did it. And I guess if uh that's that's about the best evidence I've got to give you, a sworn testimony, judge. And it does not have to be Let me ask this question back to you, Judge. Do the courts have an obligation to protect our rights? And yes, does the court have to go out of their way and and spend a lot of time and money to protect someone's rights?
Um, it depends on what's at stake, right? In this case, the judge knew the man was in the building in custody um knew that he wasn't there um and and was dismissive and did not care and wanted to roll forward with his divorce without any attempt to give him the opportunity to be heard. So, >> council, does does this uh does the timing play into this at all?
>> Which timing?
>> The the timing I I understand you went back several months later on Mr. Hail's behalf and asked to reopen the case. And and my question, you know, if if this were done within 30 days, if if the request to reopen, it would be done within 30 days, a different standard applies. But after that point, it becomes more difficult and and it it looked like Judge Alvi was thinking, well, you know, you're reopening now basically as we have an ulterior motive for this determination to attempt to reopen this judgment at this point. Instead of just, oh no, I wasn't able to to I thought that this I was going to be able to be there. they went on ahead and went forward. Uh, what can I do? Con contacting the court as soon as possible after the the decree was entered.
>> Judge, I can't uh speak to anything before I was there. I got involved with it um in the late late spring when we first hearing in June. Filed my motion maybe in maybe a week or or three before that. I don't know exactly, but over but it was over 6 months after the decree had been >> introd uh you know 6260 talks about a reasonable time some have a year limitation so it's within time for that and we are talking about um a constitutional right which may be set aside at any time and I say that the the decree itself is void um because of a failure of of due process um and you know I I guess someone could speculate about alternative motives, but that certainly wasn't any part of our argument. It certainly wasn't any part of our evidence. We said the man didn't get in. Uh we filed this motion. Uh now we between the filing of the motion, it wasn't 6 months before it was heard. It was in in the vicinity of 6 months. Um and the property was all still there. Um it was all still capable of being judged. uh I mean you could because the man just wanted to get in and and have his day in court and that was still available to him. So there wasn't any strategic uh value unless like council argues that the idea is to uh get over the 30-day appealing of the judgment. But he's not appealing the findings in the divorce so much as he's appealing that the decree of divorce itself exists and the whole thing should be set aside because of the due process filings. Well, does the fact that your client filed an answer change the standard for the court proceeding without him being present?
>> I think it does in some extent uh because the court uh this wasn't a a complete default where the person had never shown up. The person did file a prosay answer and did say that they um had problems with the proposed property settlement. It was, you know, it wasn't it was not a professionally done answer, but I think it qualifies as an answer.
and the court was on notice that this person wished to participate. Um, and the person was out of custody when the answer was filed and then was in custody by the time of of the trial. Um, and so I do >> you know how long he remained in custody after the trial?
>> He's still in custody today, judge. He's still in pre-trial detention today. Um, there's not not a trial on his underlying underlying case. So, he's still in the Wok County Jail today.
>> So, he's never been released.
>> Correct.
Yeah. Yeah, it's pre-trial detention.
No, no, no conviction has been had.
>> Are there any other questions from the panel at this point?
>> What's the underlying charge?
>> You know, and judge, I I honestly don't know. It's it's domestic uh violence of some sort um with um with Mrs. Hail as the alleged victim.
>> That's the only thing I saw. I didn't know. All right.
>> But I've never looked because it did it didn't matter to me.
All right. And I see my time's up. I will uh address some of this u um standard review that I promised in my my rebuttal.
>> We'll look forward to it, council.
>> Welcome.
>> The through line of of this particular appeal, I think the court has has already keyed in on, and that's namely where the responsibility for Mr. Hail's failure to appear at his divorce trial lies. Um it's the appelli petitioner's position that uh Mr. Hail had constitutionally meaningful due process notice and an opportunity to be heard and he merely did not avail himself or invoke the process um that the court laid before him. Before I get into >> council, how could he invoke that process if he's been held in in custody?
>> Well, he already had invoked that process by filing an answer. Um he was notified of the of the case writ large when he was served with the petition. He filed an answer um where he offered a a nominal response and objection um to his ex-wife's um proposed distribution of assets which I think came from his perhaps conversations with her counsel at the time because there's there's no reference to that and um what her position was in the pleadings. Um, and by the time he was in custody, he testified at the evidentiary hearing last July that he received notice of the trial date while he was in custody. Um, litigants who are in >> What bothers me about this case is that is that everyone knew what was going on.
Everyone knew that Mr. Hail had was representing himself, had filed an answer, disputed the outcome.
Everyone knew that he was in the We do county jail and the trial went forward.
>> Yes. And the judge, Judge Alvie could have certainly in her discretion looked at those facts and said, "This litigant is clearly in custody. I'm going to continue the trial or I'm going to call the jail." She could have done that, but her refusal or her decision to not do so is not a violation of his due process.
He still has >> Why not?
>> Because he has an obligation to um fight for his own interests. If the court were to >> Wait a second. He he asked to go, didn't he?
>> No. The record does not indicate that he that there are any communications between Mr. Hail and the district court.
The record >> I'm not asking about. The record is that he asked the jail to take him over there.
>> I think the record is unclear as to what his communication with the jail staff was.
>> So, was it an abuse of Was it an abuse of discretion for Judge Ay not to have him brought over?
>> It was not. Um, and the record only reveals, I think, that Mr. Hail inquired about the logistics of him being brought over to court on that day. The record, I think, is unclear as to whether the dimminimous efforts he took that morning to check up on the status of this case was him requesting to appear um from jail staff or him just inquiring um you know, I I have a hearing today.
When am I being brought over?
>> Let's look at the the facts kind of in the light most favorable to Mr. Hail.
I'm not saying that that's our standard here, but I am concerned about what an opinion that we would write might look like. And in particular, if if what happened was Mr. Hail was in jail, Mr. Hill had a person who had the power of attorney asking on his behalf, calling the court um without success, seeking to have him brought over or or whatever it was that that she was asking for him to do. The either the day before or the morning of Mr. Hail goes to the um the jail employees and and asks to be uh transported over by transported over I mean just walked over and um is denied that request and the court knows that he's in jail and decides to go forward with the hearing. Would our decision essentially be sanctioning the ability of a court anytime someone is in custody to enter default judgments against them?
>> No, it would not. I think it would be consistent with how this court has viewed that situation before. This court has in the past um affirmed a district court for even denying the request of a litigant to be to be brought from jail to be heard on a motion. And that was that was in Brown v. Maloney back in 1997 24 can app 2D424.
It also would be consistent with this court's um obligation to dispense justice evenly.
>> Was that the >> that case in Maloney was that for a motion or for a divorce?
>> It was for a motion. The the the litigant in that case was in custody. He had filed a motion um for an abatement of child support based on the fact that he was in custody. He also had filed a motion to appear. Um this court um remanded the case because the district court judge sumearily denied his request um to appear. Um but the court but this court made clear that the district court wasn't under an obligation to necessarily grant that motion. And the distinction here is in this case there is no evidence of a request made to the district court by Mr. Hail to appear at his divorce trial. What this court would be doing if it remanded this case based on these facts would be essentially saying that the district court had an obligation to advocate for Mr. Hale to look at the fact that he's incarcerated to look at the fact that perhaps he may have a cognizable um property interest >> uh potentially 50% of the property that he might have an interest in.
>> Well, he has an prosay litigants are held to all the same standards as um practicing attorneys. He had the obligation if he thought that if he wanted to meaningfully uh fight for that interest to ensure that he was present and he took at best dimminimous efforts to do so.
>> Having a hard time with him being able to attend when he's held in custody.
What efforts could he have done? He's got to get the sheriff to take him out.
>> Yes. And >> the court could have easily just asked the sheriff to bring him over for a hearing. The court could have, but it was not error for the court to refuse to do so. And judge algo why that was an abuse of discretion. You didn't answer.
So why wasn't that an abuse of discretion? because the court is not obligated to compel parties to attend hearings in a civil proceeding, which is what the district court would be doing um if if this court were to rule that it had an obligation um to carry him over from the jail in absence of any request by him to be produced for that hearing. And the district court in denying Mr. Hail's motion >> council.
>> Yes.
>> Upon learning, so you know, maybe Judge Elvie at the time didn't know, right?
That very she might not have known. Um, but she knew at the 6260 hearing that he had made that request. Uh, upon learning that information, do you think that it was an abuse of discretion not to at least allow him to have the opportunity to be heard in court?
>> It may have been, but she provided him you I'm I'm sorry. I want to make sure I understand the question upon learning that would have been is the question would it have been abusive discretion for her to >> not to reopen and allow for the trial to go forward on the merits? No, I think it plausibly could have been an abusive discretion for her to at that point summarily deny his request, but Judge Alvie conducted an evidentiary hearing over the objection of Ms. Cooper to ensure um that justice was adequately served in this instance and to hear what arguments and what testimony Mr. Hail could provide the court as to what efforts he took to appear on that day.
Initially, this we were all here on a 6260 motion alleging not a due process violation. It was not alleged that the decree of divorce was was void or or a nullity. It was alleged that the failure of the court to produce Mr. Hail for the divorce trial amounted to excusable neglect. And a litigant alleging excusable neglect has an obligation to show what that excusable neglect was.
And so I think Judge Alvi very appropriately conducted an evidentiary hearing to ascertain what efforts Mr. Hail may have taken and perhaps what his testimony in court would have been.
>> What efforts would have been enough?
>> Well, the district court in in denying Mr. Hail's motion um explained that it would have been as simple as sending a letter through the jail service to the court to be produced. Other than that, I don't know what specific efforts he could have undertaken other than making any attempt to contact the district court. There's again no evidence of any communication between Mr. Hail and the district court regarding that appearance.
>> The evidence at the hearing that says there was efforts made at timely at that time.
Well, I don't think they were timely.
And I and I and I still I still question whether Mr. Hail's testimony about his conversation with jail staff amounted to a request or just an inquiry as to when he was being >> with remanding it back for a hearing to determine the equitable division of the assets of the marriage.
>> I would say there's there's a couple of things. Number one, um first of all, at the initial hearing, despite the fact that Mr. Hail did not participate. The court still conducted an analysis of the marital estate. There was profers by Ms. Hooper's council at the time, Miss Iikenna, specifically about what the assets of the parties were, what the debts of the parties were. These parties had around $60,000 in debt. That was aortioned. It was not all aortioned to Mr. Hail. Many of the debts were bifurcated between them. Um, so >> but the house was entirely aortioned to Mrs. H.
>> That's correct. And there has never been an argument.
>> Were were there any assets there? There were liabilities that were assessed to Mr. Hail. Were there any assets that were uh granted to Mr. Hail?
>> I don't I other than >> I didn't find any >> I didn't find any in the decree specifically. Um >> and that's where they would be. Correct.
>> Certainly. Um, but the the bottom line here is it was it has never been alleged by Mr. Hail that that division of property that's memorialized in the decree of divorce from November 1st of 2024 is anything but a fair, just, and equitable division of the marital estate. Basically, what this court would be doing in remanding would be merely a seeding to Mr. Hail's request for the sole purpose of giving him an opportunity to provide whatever evidence years after the fact he feels he was deprived of the right to present at the initial hearing. But there is no evidence as to what any of that there's no nothing in the record to suggest >> because there was never a hearing. So there was never the ability to have a profer >> from him at the hearing. Yes. But he never in his in his motion, he never alleged any facts that he felt the court needed to hear and didn't hear that he could testify about that weren't addressed at the hearing. During his sworn testimony at the evidentiary hearing, he never he he similarly did not provide the court with any information as to what he would have testified about on that day.
>> I don't recall off the >> equity in the house.
>> I'm not sure.
So we don't know whether there was a fair just and equal division of the assets of the marriage do we?
>> Based on I mean I can make an argument that there was based on the facts of this case based on >> yes but the court had the information it had when it sat when it heard the profers of counsel there's there's really no evidence as to what Mr. Hale would have brought to that equation if he if he was a if he had successfully appeared that day.
The only issue in this in this case as as appell petitioner sees it is a request by Mr. Hail to have his day in court. That is not sufficient in this case to remand. This again came before the court on a 6260 motion. He has not established that he undertook meaningful efforts to appear in court and there is no basis by which the district court could conclude that it was appropriate to grant him relief from judgment. The district court made findings to that effect that he had not carried his burden to establish under the case law that his failure to appear was the result of excusable neglect. Um there was no effort to demonstrate that he had an he had a meritorious defense to the suit which again that piece of it is is important because we don't know what evidence he would have brought or what defense against the ultimate distribution of assets he would have brought to bear in that hearing and >> other than it wouldn't have been a zeroed some game.
>> Correct. Um, and that's that's an argument he he freely could have could have made regarding the final factor that Mr. Hail, the district court found, uh, failed to establish. Um, and this this dovetales with some of council's arguments um, regarding the the purported hostility of the district court judge. This was a case where there were other equities that the court considered, namely the fact that Ms. tale had or excuse me, Miss Cooper had specifically pled that there had been domestic violence in the relationship.
It was in the record that she was a protected person under a protection from abuse order which which also does give her control of that property and excluded Mr. Hail uh from that property.
Um and I submit that that is an equity that the court clearly from its decision considered. Um, and with respect to the presence >> on that and I I I know that that you're trying to sum up, but on that that that is a so Mrs. Hail had equitable control of that property because of those those findings and presumptions. But that doesn't mean that she has entire ownership and and and control of that property, does it? at the prior to the divorce decree. No, she did not. But what the divorce decree gave her her, which I think is eminently a reasonable outcome in a divorce case where there are significant allegations of domestic violence, is it gave her um safety interest in that home to to reopen this case is not merely going to place M.
Cooper in a position where she has to relitigate matters. that wouldn't be any sort of any sort of prejudice to prevent the court from ruling that way, but it would deprive her of that safety interest, of the safety that she through litigation had to obtain for herself um after she was she was victims of Mr. Hail's um abuse. And so I submit that based on that, based on the other factors the court considered at the trial, um the decree represents a fair, just and equitable distribution of assets that Mr. and Mr. Hail did not carry his burden to establish he was entitled on any level to relief from that judgment. And therefore, it is requested that this court affirms Judge Alvie's denial of that motion.
>> Thank you.
>> Thank you. Further questions from the panel? Thank you, councel.
Mr. Orba, I believe you have five minutes for a rebuttal.
>> Five minutes. Here we go. Um, one of the things because it's it's top of mind that council just discussed was um my my client um inherited the money that was used to buy the house and that was brought up in the hearings and that was something Judge Alvi was aware of at least at the hearings that there is a time source and man argument that he was not allowed to to make and that's part of that did he have any sort of defenses to bring to the table. So, do you know the value of the house?
>> I don't know it either. Uh, I'm I I'm thinking >> I thought about 150,000 was a purchase price and at the and but judge I'm a poor source of information because I didn't do the trial and I'm I'm giving you just uh just my but they they had they had like 60 or $90,000 that they put down that he inherited and that's his major concern in the whole divorce from my best of my memory. Is that in the record, council?
>> I don't know those values. I don't know if it is. Um, so >> I don't know that. I don't >> This is a 2024 divorce.
>> Yes.
>> And he's been in custody since how long?
>> Since October of 24 on a Okay.
>> Yep.
Oh, one of the one of the things that in my very limited time is I couldn't get my client to court either.
The power of attorney couldn't get him to court. He couldn't get him to court.
I couldn't get him to court. I had to have another hearing set. Um, and there's quite a bit of tension in the courtroom about getting my client to court for them for the 6260 U argument standard of review. Um, I believe that it's denovo because we're making a constitutional argument. Um, I did plead 6261 and six or excuse excuse neglect under the idea that he was in custody. He u, as uh, my judge on my right pointed out, he didn't do a very good job. He made some bad assumptions on that he would be taken to court and didn't ask uh in advance, but he did have his outside agent uh do everything that was in her power to try to get uh get Mr. Hail to court. Um and I do not abandon the argument under 6260B6, which is the last one down there, which talks about it's it's more the catch all any other reason um that might that might excuse it. Um, and that's been found to to be a broad and a liberal definition. And uh, uh, what's my case here? Uh, Wit versus Elsley says that justice be done and are all the facts.
And that includes due process. And this was very much a due process argument.
And 6260 and due process are not mutually exclusive. Do my I mean I can argue uh due process inside a 6260 motion. uh and and that's what I did. Um and so um I believe that um we've made our our uh constitutional argument. We cited our constitutional cases. Um we asked that the um case um be remanded um and and reversed and that the decree be set aside and that he be given an opportunity uh for for a trial. Whether he goes prosay or not doesn't matter to me. He just needs his opportunity to be in court. And he did everything um reasonable if not perfect for a person in his circumstances. locked up in a jail um and not receiving an inkling of assistance from the court who knew the circumstances, who knew he was there, who knew he was not happy with the proposed um the proposed uh outcome. Um and could he have done more after the fact? I think so. I think we can everybody could do more, but he did far more than the nothing before the fact that uh Mrs. Hail states. So, subject to any more questions, I appreciate it.
>> Any other questions from the panel?
>> All right. Thank you very much, council.
Thank you for your argument today. Um, we'll take the matter under advisement and issue an opinion as soon as we're able. And at this point, we will call the last case on this morning's docket.
Give everybody a a couple of minutes to to change spots and then we'll call that case.
Right. The final case on this morning's docket is number 127 723.
State of Kansas, Appali versus Andress Mendoza Rodriguez, Appellant from Johnson County.
Will the parties please state their appearances?
>> May I please the court Grace Tran of the Appallet Defender Office on behalf of Chris Mendoza Rodriguez?
>> Good afternoon, your honor. May I please? The court state of Kansas appears by Jacob Gonteski.
>> Mr. Gesky, are have you entered your appearance in this matter?
>> Believe I did, your honor.
That's that's fine. I'll you'll check and I'll check and we'll we'll just make sure that we get it >> to I had a note on the docket sheet on my bulletin board, but I I had everything.
>> I remember.
>> All right. All right. Excellent. So, um thank you very much for that then. Um Miss Tran, would you like to reserve any time for rebuttal?
>> Yes, your honor. Three minutes.
>> Three minutes are granted and you may come forward.
This case originates from a car stop where a substance was found in Andress's car, but due to several evidentiary issues, it's our position that his conviction should be reversed. First, I'll turn to the issue of the lab test results. Um, the district court should have excluded those lab testing results because there wasn't a reasonable certainty that the substance found in Andress's car wasn't materially altered.
So, after the substance was found in Andress's car during the car stop, the officer went to field test it. And while that was happening, um, according to his testimony, it basically exploded over the hood of his car as he tried to open the small plastic bag that it was in. Uh he testified that there was a small amount of the original substance remaining in the little plastic bag and then you know there was substance on the hood of his car which is also where he he he frequently and and usually tests substances on the hood of his car. So he used his gloved hand to scrape the substance off of the hood of the car into an evidence bag as well as put the the small bag with the small amount of original remaining substance in the evidence bag. And so that was what was ultimately tested and what we have the lab report from. And so the district court analyzed this as a chain of custody issue um and and found that it should be able to be admitted.
But for these chain of custody issues, the evidence should only be admitted if there's a reasonable certainty that the the thing that you know is thought to be admitted wasn't materially altered. And here we don't have that. We cannot be reasonably certain that the substance found in Andress's car wasn't materially altered because what was ultimately tested was what was scraped off of the hood of this car, which is where this officer by his own testimony frequently field tests other substances. So, >> do we know if the small bag was tested?
>> The small bag was put in the evidence bag along with all of the other substance and I think my understanding is that point it was like ripped open.
So everything is in there together.
There's not a you know the the small bag with the original substance wasn't separate from what was on the hood of the car. It was sort of all together.
>> And didn't the officer testify the hood of his car was clean?
>> He testified that, you know, to his visual sight it was clean, but he also testified that he didn't, you know, like specifically examine it for cleanliness before going to field test, you know, the substance. And and again that it was it was where as a part of his you know as a matter of course that's where he field tests things. And so I I don't think that we can say here that we can be reasonably certain that the substance that was ultimately tested was not materially altered. Of course we we don't have to be absolutely certain. We just need to be reasonably certain.
Sure. And and so it would seem that if if we were to reverse the district court on this, we would have to be it like we'd have to think, well, maybe there there was other crystallin substance on his car at the time. That seems like a strange kind of presumption to make.
I don't think it's that strange to say, your honor, that if we have a, you know, a sort of an uncontrolled, not sterile environment where this officer is frequently field testing substances, there could be a substantial risk of contamination where you have substance that's all over the hood of this car that, you know, we're not checking it beforehand to make sure that it's clean, to make sure that there's no contamination happening. And so I don't I don't think that we can be reasonably certain under those circumstances that the substance wasn't materially altered.
And >> what what is our review of that look like?
>> Your honor, I it's a little tricky, I think, given how it was raised below um as a suppression issue. I I think that chain of custody issues are are reviewed for abuse of discretion. So, I think it would be sort of an error of law to say that um when the judge found that there was there wasn't a reason there was a reasonable certainty that it hadn't been materially altered.
>> And I and I think >> the quality of the evidence go to his weight for the jury to decide.
>> I think that's typically in chain of custody issues. Although from my reading of the cases I think that it's sort of a threshold issue whether you know the party offering the evidence can show that there's this reasonable certainty and then you know once that threshold is met any potential issue you know like we said we don't have to be absolutely certain of you know what's going on here but once we've met that reasonable certainty threshold then it goes to wait and credibility for the jury after it's been admitted.
But I think too, you know, given the facts that um the drug dog didn't alert in this case, um when he went around the car before the substance was ultimately found, um given the fact that several weeks before the same officer had tested a substance found in Mr. Mendoza Rodriguez Rodriguez's car that tested negative for a substance, I I think that all of those things sort of can lead us to not be reasonably certain that there wasn't a material alteration in this case. And so that the lab report should not have been been able to be emitted.
And that sort of dubtales with the the Brady issue having to do with um the the lack of disclosure of this previous car stuff that took place 3 weeks earlier. Um and so it's our position that the state um suppressed favorable evidence um and violated Brady in doing so. Um there was evidence that the defense found pretty close to trial that Andress had been stopped um about three weeks before um by the same officer who stopped him in this case um who found a substance in his car again, field tested it, and it was negative. Um and so, you know, to violate Brady, we have to have favorable evidence, evidence that was suppressed, and evidence that was material. And I think that all three of those prongs are met here. Um >> explain to me the materiality, if you will. So when we're looking at materiality, we're looking at a reasonable probability the result of the proceeding would have been different. Um and I think so when when we're having this, you know, nominal suppression hearing that deals with the car stop as well as the lab report, um with the lab report portion, the the district court is being called upon to determine the reliability of this evidence. And I think as well as um bad faith determinations of you know how did this happen that this evidence sort of ended up in the state that it did. I think knowing that the same officer had stopped my client 3 weeks earlier found a substance that he thought was illegal field tested it and it was negative.
that the uh that there's a reasonable um probability that the result of the hearing would have been different given that information because >> so the the defense attorney could have used that um that evidence uh well one to to go toward good faith or bad faith in that situation given the previous encounter that the officer had had with my client as well as to impeach. So, are you saying the state has an obligation to provide a defendant with every time he or she's been stopped?
No, your honor, but I think that given this case and given the specific facts of the case, um that the sort of reliability and the evidence handling was in question. I think that that makes this prior stop relevant and and the defense did ask for, you know, exculpatory evidence to be turned over and it wasn't. And so I think under these specific facts, I'm having a difficult time figuring out how that evidence is exculpatory because here's what here's what I keep coming down to is that so he was stopped and by the same officer. The officer um tested this substance that the officer thought was um what we have here came out that it wasn't and no charges were filed.
So how is that exculpatory as to this stop?
>> Right. So in this stop the officer's you know ability and evidence handling skills were what was in question at the suppression hearing in regards to this lab report and you know whether or not we can rely on this evidence. And so I think the officer's, you know, previous, you know, being incorrect about the evidence that he had found in that case or in that what didn't become a case. Um that goes toward the reliability and his ability to make determinations about the evidence and his evidence handling practices in this case.
as well as um the fact that um you know that the defense attorney argued or or asked the district court to evaluate if there had been bad faith in the case. Um and I think having the history between the parties in question that that was necessary for the district court to be able to fully evaluate the presence of bad faith during that interaction and in the evidence handling.
So, but at the end of the day, the defendant had this information before trial. Was there a request to the district court to re-evaluate the suppression finding given the new evidence?
>> I I don't believe that there was an explicit request to sort of have a doover on the suppression hearing with this new evidence. I mean, I think it was pretty close to trial. Um, and I had in mind it was within a week. I I think that that is correct based on my recollection. Um, and I think that sort of goes to the the reasonable time prior to trial that was referenced um in the state's brief and sort of this discussion of do we have do we have to turn over this evidence, you know, at this point pre-trial. And I think I think it's a a reasonable time prior to trial to turn over evidence that's relevant to a dispositive motion like a the suppression motion or you know if we characterize it as a limiting motion or something along those lines. Maybe not positive at that point but certainly relevant to the trial um that it that it was reasonable for the state to have turned those things over.
>> And that report of that previous stop that's not in the record on appeal is it?
>> No, I don't think so.
>> Okay. So it's difficult for us to evaluate the contents of that report to see if it potentially would have impacted the district court.
>> I I think that the sort of what we have profered in in the motion that the defense filed as well as the discussion on the record in the case is sufficient for this court to to be able to review whether or not that um that report you know is is material is favorable. Um, just given we have a good amount of information >> and quite honestly, wouldn't your client have known that he got pulled over three weeks earlier? Didn't he have this information already?
>> I I think that it's fair to say that he he would have known that he had gotten pulled over, but I don't think it's fair charges had not been filed against him.
>> Sure. I don't think it's fair to say though that a lay person would know the legal import of that and and the way that that could be used in a suppression hearing used as impeachment material.
And so and you know maybe there was an assumption that his defense attorney would have already known that um that he had gotten pulled over by the same officer weeks before. Um so I I don't think just because my client you know he was there he would have known that that um relieves the state of their duty to disclose that information.
Um, and unless there are further questions, I would submit the remaining issue on the brief. Um, and thank you.
>> Other questions from the panel. All right. Thank you, council. We have three minutes for rebuttal. So, we'll look forward to seeing you again.
>> Good afternoon. May I please the court?
I'm Jacob Gonteski. I represent the plaintiff, the Abalene, the state of Kansas here. I will do my best to be as faithful to the clock as opposing council was. That was impressive.
Judges, this case comes before you with no reversible error. Uh, Officer Steel conducted a routine traffic stop uh just outside the courthouse here that night that that brought about the charges against this defendant. And throughout that traffic stop, at all pertinent times, Officer Steele adhered to all of the legal requirements to pursue the investigation that led him down the path, ultimately finding a baggie of meth inside the defendant's possessions.
At every step of the way, Officer Steele had the requisite reasonable suspicion or probable cause to pursue the investigation that he did. It began with a traffic infraction. And when he stepped to the side of the defendant's car and looked inside, he he confirmed the the infraction offense and within seconds of putting eyes on the defendant, he spotted the bottle of fireball whiskey in the center console.
Right at that moment, he had probable cause to believe that a misdemeanor offense had been committed by the defendant. And at that point, he had probable cause that would support a search of the vehicle for evidence of the crime of transporting an open container. And so that's the path that he went down. While he was at the side of the car, that's when he radioed for backup because as he testified in the suppression hearing, policy requires that he has backup with him when he's going to conduct the search of a vehicle. So, within a minute or two of his opening interaction with the defendant, he radios for backup. Uh, and he learns that the canine unit is the closest backup to him. Uh, the K9 unit has the K9 that can obviously do an open air sniff. Uh, but the K9 comes with an officer who can serve as the backup that officer Steel needs to conduct the actual physical search of the vehicle.
And at every step of the way, officers, >> what what exactly was the point of conducting the physical search of the vehicle if the if the crime was transporting an open container and I as the officer see the open container? the what he was going to need to do is he was going to need to retrieve the open container out of the vehicle because he had the passenger and the defendant step out of the vehicle when he first he he observed it when he was at the side of the car and then he radioed for backup and then he retreated to his car to run the the name for wants and warrants. The driver did not have a driver's license with him. although he did recall it in the opening sequence between officer Steel and the defendant that they both realized that they had interacted with each other a few weeks prior. Um so that in the body cam you see as much but he retreated back to his patrol car to run for once and warrants and when he did that and and radioed for backup he began drafting up the infraction for the transport in the open container. Backup arrived he stepped out of his vehicle when he went up there to conduct that search for the bottle. The bottle was no longer where he had first seen it in the center console. It had been secreted away somewhere. And so now it was incumbent upon Officer Steel to locate the bottle where it was in the vehicle.
So they opened up the doors and began a search of the vehicle uh for that bottle. They had probable cause to do so every step of the way. Uh and so the the the K9 sniff did not unreasonably extend the stop. It didn't extend the stop because the K9 sniff didn't even occur until after Officer Steele already had probable cause to allow him to search the vehicle for evidence of the the crime of drive uh transporting an open container.
>> Was it even necessary to do a K9 sniff and he he already had probable cause to search the car?
>> It was not necessary.
No, but Officer Steel was still acting within his legal authority to do so given that he had probable cause to search the vehicle. We've often had officers testify in other cases once they establish probable cause such as the this odor of marijuana or something of that sort. They'll often call in the canine to conduct the sniff because that will their search of the vehicle will be much quicker. it'll be much more efficient with the use of a K9 because the K9 in those cases will often zero right in on where the where the evidence can be found. So that will prevent the need of the officer from tearing apart the entire car uh looking for where the smell had come from.
>> But of course here it was looking for alcohol and the K9 would not sniff for alcohol.
>> Correct. The K9 would not sniff for alcohol. The officer was looking for alcohol. when he was looking for alcohol. Then he noted that he observed what he believed to be a small amount of marijuana beneath a bag on the pasture.
I believe it was on the pasture floorboard. Uh a canine could detect that. Um wouldn't always necessarily detect it, but could >> and did not hear >> and did not hear. The canine did not alert here. Um the officers continued conducting their search of the vehicle and recovered the evidence that they did and then placed the defendant under arrest at that time.
So uh at all requisite at all relevant times the officer was acting under the the authority that he was that he was allowed under the law. Additionally the lab test results were properly admitted.
Uh the motion to suppress hearing is where the district court heard evidence from officer steel about how the field test was conducted. Uh and it's shown on his body. It was all preserved on his body cam as well. He testified that he often conducts field tests on the hood of his car. It's the easiest place for him to do it. He doesn't like to do it in his patrol car. That's not safe in case there's fentanyl. He doesn't want to be an enclosed space. Uh the hood of his car provides a relatively flat surface, a desk of his office. And so when he stepped over to his patrol car to do that, he did it in front of his body cam the entire time. And he testified to the fact that the the the white crystallin substance that he had seized from the car was wrapped in a very small plastic. It appeared to be the remnant of a plastic bag that had been sealed. and and he he discussed it may have been melted or burned together.
So, it was it was held very tightly in that plastic. And when he stepped to his patrol car to conduct the field test of that substance, he had the field testing kit there that he testified only needs a very very small amount of the substance to to conduct the field test. And he went to open the the bag, the plastic baggie, and when he did so, it tore open and the substance spread all over the the hood of his car. Uh, and so he then undertook an effort to scoop it back up.
He had a gloved hand. His backing officer had a a new Ziploc bag, a new clean, empty Ziploc bag, and with his gloved hand and and a portion of the field kit, he he endeavored to scoop it up and place it in the the evidence bag.
>> There wasn't any testimony about like if he often uses the hood of his his patrol car for this purpose, like how does he sterilize his patrol car? There wasn't any evidence along those lines, right?
>> There was not. There was evidence. He testified that the hood of the car was clean. It appeared clean to him. But I' i'd also note that what was happening here is the hood of the car was not being used as as a microscope slide or as as some mortar and pestl in a pharmacy. That's not how he would normally use it. And so in a normal circumstance when he's field testing a substance, he might gather the evidence from his from from the car that he stopped or wherever it was and it may be placed on the hood of his car, but he's not normally scattering the drugs on the hood of his car. So even though he conducts other field testing at the hood of his car, it wouldn't be an ordinary circumstance that that field testing would introduce that substance to the surface of the hood. Um, it did in this case and and Officer Steel was obviously frustrated. That's evidenced by the by the body cam footage and by his own testimony. It was it was frustrating for him. It was entirely unintentional. It was it it only detracted from his investigation. And to that end, that's precisely why this error, not error, but this this sequence of events goes to the weight of the evidence that would be determined by the factfinder. And so the officer testified about how this all played out both in the suppression hearing and at trial.
And defense was able to make hay of that in impeaching him at trial about how this could have introduced contaminants and how this was not an ideal situation and so on. The the defense was still able to elucidate all those facts in the trial and use that against the state to attempt to sway the jury uh in the amount of credibility that they would place on the lab report. So, um the lab test results were still properly admitted in the trial and the defendant was able to impeach those and and draw credibility um determinations about them. So finally, the the Brady violation the state maintains there was absolutely no Brady violation that was committed here. Uh first off, the the the idea that this previous stop would be favorable to the defendant in a sense is belied by the redacted video that was played at trial, which removed the discussion between Officer Steel and the defendant about having realized they had been acquainted a few weeks earlier in a different stop. That was all kept from the jury for obvious reasons. That previous stop was not in any way favorable to the defendant. The fact that the officer had an interaction with this defendant on a previous stop, found a substance and field tested that substance and got a negative result, was not exculpatory to the defendant. It shows furthermore, it doesn't conclusively establish that the def that officer steel made any mistake in that previous stop. Those field tests, as this court is well aware from a plethora of cases, those field tests are not conclusive results. They're not lab confirmed. They're not used as evidence against a defendant in a trial for very good reason that we we use the lab results for those where they conduct them in a in a accredited environment.
But the fact that officer Steele obtained a negative result in that earlier stop does not conclusively establish that that substance that he was testing was not methamphetamine in the earlier stop. Everything about that earlier stop was inculpatory to the defendant other than the field test result. The fact that that earlier stop happened was the defendant was obviously well aware that it had happened. Officer Steel was aware. The body cam footage that was released to the defendant in this case made it clear that the two had had an earlier interaction. Uh while the reports of that earlier interaction were not included in the discovery with this case, that was of no effect to this defendant because he would have been able to make no use of those reports in this case.
It was neither favorable nor was that information that was not provided to the defendant nor did it uh bring about any prejudice to him. It would >> council the argument was that this that demonstrates potentially some bad faith on the officer's part. Could you address that?
>> I'll I'll address it to the extent that I see that the claim was raised. I I struggle to to delineate how that evinces any bad faith by officer steel. And to the extent that the record here on review by this court draws any um conclusions about that, the district court explicitly found officers that there was no bad faith on behalf of the on the part of the state here. um that's in the record on the suppression hearing, >> but that was before this that was in the absence of this previous report. That previous report was before the court.
>> But I I struggle to ascertain where the bad faith came in in that the report was not beneficial to the defendant other than that he was released and no charges were filed in that earlier event. Um, but the moment it all came up in court, it came up, I believe, in the motion to suppress hearing. At no point did the state prevent the defendant from having a discussion about that with the officer.
I I believe at some point the state finally objected to questions along those lines and objected on relevancy.
Um, but not in an effort to hide or withhold this information from the defendant. bad faith would require some intentional conduct by the state to withhold this information from the defendant that was obviously plainly exculpatory or favorable to the defendant. But there was no such effort undertaken here. It's not normal course for the state to when it files a case against a defendant to dig through all of its archives and records of all of the agencies in the metro to see if they have ever stopped this defendant and if so provide those reports and video and evidence and then tack it on into >> this is a little bit different because it it is close in time and it involves the exact same two people. So it's not like true having to dig everything out.
It's, you know, when you're interviewing your witnesses, you say, "Well, I just stopped this guy 3 weeks ago."
>> True.
And so, we could draw a parallel for a smaller county west of Johnson County then, where I would imagine it's much more common where a law enforcement officer has an interaction with the same defendant. Uh, I would I don't know that it's common course there for the prosecuting attorney to gather all the reports from all the previous interactions and put them together in in one packet. Um, if if that was significant, then I I'd be curious where the court would draw the line on what the state needs to provide, if it was if it was a stop within the last month, if it was a stop with the same agency but not other agencies in the metro, if it was a stop with the same officer but not other officers and so on. There's not a reasonable way to delineate as much. And there's also no need for this court to do as much because nothing about that was exculpatory. nothing about it was favorable to the defendant and no prejudice befell him as a result of the state not disclosing as much. So uh recognizing that Clark is encouraging me to wrap up, I would ask this court to affirm the district court's ruling on the motion to suppress and affirm the defendants's conviction and sentence in this case. Happy to stand for any additional questions the court may have.
>> Any other questions from the panel? All right. Well, thank you very much. I want to com commend uh both attorneys on your use of time in this matter, but Miss Tran, you have three minutes for rebuttal.
>> May please the court. I'll address the extension of the stop issue. Um there was a question about what would be the purpose of searching the car at the initial point of seeing the open container. Um because the open container was right there. Um and >> but then it wasn't. But then it wasn't, which is true. And I think um that difference is important because in the interim, so the bottle was there and then the bottle wasn't there. And in the interim, there was a call for the K-9 to come. And while it's true that there was testimony that the K9 officer was close, there was also testimony that officer Steel would have called a K-9 to the scene regardless. And so I think it seems pretty clear that he wanted a canine there and he wanted a sniff to be done. And there is case law that talks about when a stop has been extended, if the, you know, the officers discover some evidence afterward that would make it legal for them, you know, to s to search, that's not going to be saved by the inevitable discovery doctrine because that stuff was discovered after the stop was already extended. And I think that's what happened here. When first we have the bottle that's in plain view that we see it, we have an officer go back to the car, run the check, start writing the ticket, call the canine to the scene, stop writing the ticket, disengage from the traffic mission, go to have the, you know, the car be searched or to be sniffed by the the canine and then see that the bottle has been moved and then, you know, maybe we have probable costs to search for that bottle, but the car stop has already been extended and we already have um, you know, an illegal seizure. And so I think that in that situation, the case law says that inevitable discovery does not save the evidence that is found afterward because we already had um an improper seizure at that point.
>> But he had probable cause to search the car when he saw the bottle. Didn't matter whether it was moved. And we would we would disagree and question that he had pro >> you wouldn't you know why would that >> why would that be go ahead >> because I think the he's we have probably caused a search for the evidence of that crime which is the bottle that's in plain view and sitting right there. I don't know why when we have a bottle that's plainly in one place, why we would search for that bottle in other places in that car to find evidence of that crime that was that was seen.
>> But wouldn't he have the right to search the car to see if there were other bottles?
I don't I don't think that that would be the case given that just the evidence of the infraction or the the crime that was committed is plainly viewed in that circumstance. It's right there. We don't need to search for it.
And unless there are further questions, um we would ask that Mr. Mendoza Rodriguez's convictions be reversed.
Thank you. Thank you very much. Further questions from the panel?
>> All right. I want to thank uh both council uh for their arguments today and thank you for your written briefs.
We'll take the matter under advisement, issue a decision uh as soon as we're able. Thank you very much. At this point, the court is adjourned.
How are you? I'm fine. I'm just fine.
Man, I didn't even recognize you back there.
>> Nice criminal stuff.
>> Sure.
>> Yeah, that's great.
>> Here.
>> Yeah. Well, I mean, >> yeah, traveling today, I guess.
>> Yeah.
>> Travel dockets.
you got here >> field trip.
>> It's great.
>> Oh yeah, it's a nice building.
>> I was here couple months ago and >> you guys here, right? Is that all you guys do?
>> I do. Yeah. Right.
I actually really like this. No bottle right there.
gives to the officer half.
Here you go.
>> I was like, "Sure, sure. I should feel it."
>> Yeah. Well, yeah, that's wild. But okay, so you're So this is your >> one below you.
>> Yeah. Or no if it was me right now.
>> Were you in school last year?
>> Oh no. Two above.
>> Yeah. Okay.
>> Which is why I always >> So you've been like a year out.
>> Yeah.
>> Okay. So you're about to start your last year.
busy year. But other than that, >> you're going to do this all year.
>> Oh, did you?
>> Nice.
>> After I don't know how >> Oh, really?
>> Oh, okay. Cool.
>> Well, how's life? Good.
>> Yep. Um, we uh >> call another friend and I are still enjoying Westwood.
>> You know, I saw Steve the other day. We had lunch.
>> Well, we Yeah, I got I went to the office.
>> Not coming over.
>> He's going to like the poll.
>> Yeah.
>> Isn't that crazy?
>> Yeah.
>> I I gotta touch it that was a couple months ago places. But I didn't know she was I didn't realize she was going. I guess I did know >> here. I'm gonna I gotta I gotta there, but >> Yep. Well, I'll let you go.
>> Yeah, they should. They should.
>> Good to see you.
>> Don't get locked in. See you, Sam.
Thank you very much.
>> Samuel, I've got your >> the timer.
Come back after.
>> Okay.
Related Videos
54:37
Law
Session 5: Law, Genomic Medicine & Health Equity Conference/Webcast -- Dr. Consuelo Wilkins
UMNconsortium
234 views•2019-01-02
24:55
Law
Consider This: ICJ Climate Ruling — Holding Nations to Account
astroawani
307 views•2025-08-11
14:10
Law
The Third Gender I Legal Recognition of Intersex Community
KBCChannel1News
259 views•2023-07-09
3:52
Law
What Are Proceedings In Court? - CountyOffice.org
CountyOfficeLaw
129 views•2025-03-06
46:58
Law
Understanding the EU Electronic Evidence Package | Interview with Cristos Velasco | EP 7
DejanKosutic
816 views•2025-04-22
10:13
Law
8 Violations in ONE Day? Judge West Gives Ultimate Wake-Up Call
LawAndLogicTV
263 views•2026-04-26
2:22
Law
United States v. Navajo Nation Case Brief Summary | Law Case Explained
QuimbeeDotCom
589 views•2023-09-21
27:07
Law
Young Professionals: CPR Part 36 Offers with Harry Dyson
kingschambers4859
902 views•2024-04-30
Trending
13:38
Law
WOW! Judge TURNS THE TABLES on Trump in His OWN $10B LAWSUIT!!!
MeidasTouch
197K views•2026-07-23
13:25
Business
Playstation NO DISC/NO BUY Fight Is Over...
DavidJaffeGames
4K views•2026-07-23
22:40
Business
Steam and Xbox Just Dropped The Hammer On PlayStation
OhNoItsAlexx
9K views•2026-07-23
16:52
Anthropology
Americans Confused in Australia for 17 Minutes Straight
IWrocker
17K views•2026-07-23