Website that says it isn't reliable probably isn't reliable

Randall Hodgkinson won in State v. Yazell, No. 116,761 (Kan. June 19, 2020), reversing the COA's dismissal of his appeal as moot. During Mr. Yazell's appeal from probation revocation, the state filed a pleading suggesting that Mr. Yazell has served his entire sentence rendering the appeal moot. In support of its assertion, the state attached a printout from the Kansas Department of Corrections website indicating that Mr. Yazell had completed his sentence and also indicated that it had talked to a KDOC employee over the phone. Based on this documentation, the Court of Appeals dismissed Mr. Yazell's appeal. On review, Mr. Yazell argued that this documentation was insufficient to establish a party's burden to show a case is moot before it is dismissed on appeal. The KSC started by noting that appellate fact-finding is the exception, not the rule: 

Generally, Kansas appellate courts do not make factual findings. This task is reserved for district courts, where evidence is offered and tested. If an appellate court reviews the district court's factual findings, it generally does so only to ensure that substantial competent evidence supported those findings; it does not reweigh or reassess the evidence.

But there are times when an appellate court is called upon to make a finding of its own. One of those times occurs in this appeal—where a party alleges that a change in circumstance since the district court proceedings has rendered an action moot. Before the appellate court may consider mootness, it must confirm the change in circumstance. 

Appellate fact-finding is simple when both parties agree that a change has taken place, or the change is so ubiquitous the court may take judicial notice of its happening. K.S.A. 60-409(a) (allowing courts to take judicial notice of facts of "generalized knowledge"). When the parties do not agree that a change has occurred, appellate factfinding becomes more difficult. The appellate forum is not conducive to the taking or testing of evidence. For this reason, appellate courts must carefully scrutinize the reliability of evidence before making the rare finding of fact.

Reviewing the COA order, the KSC noted that it did not reflect the COA's reasoning or basis for its decision. In particular, the KSC observed that the Department of Corrections website itself disclaimed any accuracy:

"The information contained on this website is subject to disclosure pursuant to the Kansas Open Records Act (K.S.A. 45-221). While the information is believed to be accurate, the State of Kansas, the Kansas Department of Corrections, their employees or officers, make no warranties, express or implied, including warranties of merchantability and fitness for a particular purpose. Further the Kansas Department of Corrections assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights."

In light of such a disclaimer, the KSC held that reliance upon such information for disposition of an appeal was inappropriate. As a result, it reversed the dismissal and remanded to the COA for further proceedings.