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Appellate update 2019

This appellate update provides information on the timelines and procedures for appellate cases in Kansas, including the minimum time required for each step. It also includes summaries of recent appellate decisions and tips for effective appellate practice.

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Appellate update 2019

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  1. Appellate update 2019 Presented by Hon. Karen Arnold-Burger, Chief Judge Hon. Michael Buser Hon. Melissa Taylor Standridge Kansas Court of Appeals Johnson County Bar Association April 3, 2019

  2. 121 days: minimum assuming no continuances The clerk of the district court gets 14 days to do the record after docketing. (Rule 3.02) Appellant has 21 days to order the transcript after notice of appeal filed(Rule 3.03). Reporter has 40 days to complete the transcript (Rule 3.03) Then 30 days sequentially each for briefing. (Rule 6.01) Accordingly, the minimum time the appeal could take from docketing to ready is 121, assuming maximum time taken for each step and no reply briefs, cross appeals, etc.

  3. 120 Days 90 Days *Current goal is to set hearings within 90-120 days after case is ready.

  4. The Kansas Court of Appeals shall strive to file written opinions in all cases within 60 days of the hearing date.

  5. Average Days From Docket to Disposition 271 Days, absolute minimum if all goals met and no continuances

  6. CUTEST GRANDCHILD OF AN APPELLATE JUDGE2018

  7. delaying the execution of a QDRO In re Marriage of Strom, 2019 WL 166571, ___ Kan. App. 2d ___, ___ P;.3d _____ (Jan. 11, 2019), pet. for review filed (Civil, 6)

  8. delaying the execution of a QDRO • In re Marriage of Larimore, 52 Kan. App. 2d 31, 362 P.3d 843 (2015) pet for review denied February 7, 2017. • This opinion is not summarized on the case summary.

  9. APPELLATE JURISDICTION-PROBATION REVOCATION SENTENCE State v. Weekes, 308 Kan. 1245, 427 P.3d 861 (Oct. 5, 2018). CRIMINAL, 11

  10. More time to docket appeal 21 60 Supreme Court Rule 2.04

  11. New supreme court rule 8.03 • Cross-Petition for Review: • To seek review of specific holdings decided adversely to the cross-petitioner • COA assumed an issue without deciding • COA does not decide issue properly presented • DC decisions that should be considered if new trial ordered (if raised in COA) • Conditional Cross-Petition for Review • To preserve specific claims or issues for review only if the court grants the petition for review. • COA assumed an issue without deciding it • COA does not decide issue properly presented • DC decisions that should be considered if new trial ordered (if raised in COA)

  12. Quantum Meruit • JA-DEL v. Winkler and Baltz, No. 118,441, unpublished (Jan. 11, 2019)(pet for review filed Feb. 11, 2019) • This opinion is not summarized on the case summary.

  13. DIVORCE ACTION ENDS UPON DEATH • In re Marriage of Towle and LeGare, No. 119,021, unpublished (March 15, 2019) • This opinion is not summarized on the case summary.

  14. Owner = driver? • State v. Glover, 308 Kan. 590, 422 P.3d 64 (Jul. 27, 2018). • CRIMINAL, 21

  15. COMMUNITY CARETAKING STOP State v. Messner, 55 Kan. App. 2d 630, 419 P.3d 642 (May 18, 2018). CRIMINAL, 21

  16. Warrantless searches State v. Evans, 308 Kan. 1422, 430 P.3d 1 (Nov. 21, 2018). CRIMINAL, 23

  17. PLAIN VIEW-CELL PHONE TEXT MESSAGES State v. Salazar, 56 Kan. App. 2d 410, 431 P.3d 312 (Oct. 12, 2018). CRIMINAL, 19

  18. HOW DO WE COUNT PRIOR OUT OF STATE CONVICTIONS? Under the KSGA, when calculating a defendant’s criminal history score, an out-of-state conviction is comparable to a person offense under the Kansas criminal code if the elements of the out-of-state crime are identical to, or narrower than, the elements of the Kansas crime to which it is being compared. Otherwise, the out-of-state conviction is classified as a nonperson offense. State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (Mar. 9, 2018). CRIMINAL, 25

  19. Petitions for Review

  20. APPELLATE TIP OF THE DAY-don’t abandon your arguments • Object when evidence starts to come in and keep objecting • If you raise it in your brief, explain and provide supporting authority • Tells us why this fits into an exception to the rule that we can’t consider something for the first time on appeal • Question of law on undisputed facts that is dispositive • Consideration necessary to serve ends of justice or prevent denial of fundamental right • District court right but for wrong reason

  21. APPELLATE TIP OF THE DAY-THE EFFECT OF A PETITION FOR REVIEWKan. Sup. Ct. R. 8.03 • COA opinion not binding on parties or district court during time in which a petition for review could be filed and during time petition for review that is granted is pending. • If petition granted, no mandate issued until disposition on review • If petition denied, COA decision is final as of the date of the denial. • A denial of a petition for review expresses no opinion of the Supreme Court on the merits of the case.

  22. Appellate tip of the Day-Always comment on the amazing cuteness of the judge’s children and grandchildren

  23. APPELLATE TIP OF THE DAY-FOOTNOTES • Footnotes should be avoided, but, if footnotes are absolutely necessary, every footnote must commence on the same page as the text to which it relates. • Same text size, but may be single spaced. SC Rule 6.07(a)

  24. Landowner liability Manley v. Hallbauer, 308 Kan. 723, 423 P.3d 480 (Aug. 10, 2018). CIVIL 15

  25. restitution State v. Meeks, 307 Kan. 813, 415 P.3d 400 (Apr. 13, 2018). CRIMINAL, 24

  26. Federal preemption of division of military disability benefits Roslyn Marie Babin v. NickeyNicklesBabin, 2019 WL 406515, __ Kan. App.__, __ P.3d __ (Feb. 1, 2019). CIVIL, 5

  27. Who is member of family of debtor in garnishment case? In re Marriage of Gerleman, 56 Kan. App. 2d 357 (Sept. 14, 2018). CIVIL, 8

  28. request to amend petition tolls statute of limitations Tamah Scott v. Ewing,et al, __ Kan. App. 2d __, 2019 WL 847675 (Feb. 22, 2019) Civil, 2

  29. Waiver of sovereign immunity by litigation conduct State ex rel. derek Schmidt, attorney general v. Ronald nye, et al., ___Kan.App.2s ___, 2019 WL 1412458 (March 29, 2019) This opinion is not summarized on the case summary.

  30. Can’t appeal revocation of juvenile sentence and resulting imposition of adult sentence Matter of jsp, ___kan.app.2d____, 2019 wl 1213192 (march 15, 2019) This opinion is not summarized on the case summary.

  31. APPELLATE TIP OF THE DAY • Unless context requires, refer as defendant/plaintiff, not appellant/appellee. SC Rule 6.08. Or even better use name! • We don’t use Id. - short cite instead: Smith, 238 Kan. at 57. • We cite to record like this: (R. II, 5; IV, 17-20, 38.)

  32. News! News! News!Exhaustion of state remedies in criminal cases rule 8.03B • Any appeals filed after July 1, 2018, a party is not required to petition SC for review from an adverse COA decision to exhaust all available state remedies respecting a claim of error. If COA denies relief, the party is deemed to exhausted all available state remedies. • SAVINGS CLAUSE: If party’s federal habeas action is denied for failure to exhaust based on a decision that this rule is ineffective, the party has 30 days to file a motion to recall the mandate and a petition for review.

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