Tuesday, January 28, 2020

Court of Appeals Nominating Commission created

Here is a link to the Governor's press release announcing Executive Order 20-01 creating a Court of Appeals Nominating Commission. Once upon a time, the Supreme Court Nominating Commission, created by the Kansas Constitution, served a screening role for both Kansas Supreme Court and Kansas Court of Appeals vacancies. But because the Court of Appeals is entirely a statutory creation, the Legislature can and did modify the selection process for judges of that court. Now the statute provides for the Governor to appoint someone (no nominating commission) with confirmation by the Kansas Senate. The last few vacancies were filled by this method.

Governor Kelly is choosing to use a nominating commission, who she will name. Other than that, the process would appear to look very similar to the Supreme Court nominating process. But, in contrast to the Supreme Court nomination process, Court of Appeals appointments will still have to be confirmed by the Kansas Senate.

Saturday, January 18, 2020

Public defender appointed as district judge

Here is the Governor's press release announcing that she has appointed Stacey Donovan, Chief Public Defender from the Third Judicial District Public Defender Office in Topeka to fill a vacancy on the Seventh Judicial District Court created by the retirement of Chief Judge Peggy Carr Kittel:

“Stacey is a talented and accomplished public servant with a reputation of integrity and hard work,” Kelly said. “Her experience helping Kansans deal with legal problems and working to improve our criminal justice system makes her a valuable addition to the Douglas County bench.”

Congratulations and best wishes Judge Donovan! 

KSC short iist

Here is a press release announcing that the Supreme Court Nominating Commission has nominated the following persons to fill a vacancy on the Kansas Supreme Court created by the retirement of Chief Justice Nuss: Judge Thomas Malone of the Kansas Court of Appeals, Steven Obermeier, who works for the Kansas Attorney General's Office, and Kenyen "KJ" Wall, a partner in the Forbes Law Group, LLC, of Overland Park.. The Governor has 60 days to name a person from this list. 

[Update: here is a blog post reporting that the Governor selected Kenyen "KJ" Wall from this list.]

Competency at revocation proceedings

Hope Faflick Reynolds and Michelle A. Davis won in State v. Rodrigo Gonzalez, No. 120,179 (Kan. App. December 27, 2019), obtaining a remand in a Sedgwick County probation revocation proceeding. The primary issue was whether the Due Process Clause requires competency at a revocation hearing. Mr. Gonzalez had a competency evaluation prior to pleading guilty and receiving probation. When the state sought revocation, circumstances arose that implicated Mr. Gonzalez' competency at the probation revocation stage. The district court held that it did not believe that it could evaluate competency after a conviction. The COA had to decide whether the Due Process Clause applied at that stage:

Against that backdrop, the question remains whether the State may revoke the probation of a convicted felon who is not mentally competent at the time of the revocation hearing. Neither the United States Supreme Court nor the Kansas Supreme Court has addressed the issue. Competency for due process purposes entails "the capacity to understand the nature and object of the proceedings," to consult with a lawyer, and to assist in presenting a defense. Drope v. Missouri, 420 U.S. 162 (1975). Although the definition of competency has been enunciated in criminal cases, it is not exclusive to those proceedings. Given the liberty interest at stake in a revocation hearing, the near ineluctable answer to the question we have posed must be in the negative. 

Assuming a probationer has no constitutional due process right to a lawyer in a given hearing, he or she would bear the burden of representing himself or herself. By definition, an incompetent probationer could not do so. To state the obvious, someone who doesn't understand what's going on can't very well participate in any meaningful way. The statutory right to a lawyer is largely beside the point in assessing the constitutional due process protections that must be extended to probationers facing revocation. Constitutional rights set a floor that a state may exceed but cannot sink below. Moreover, as we discuss momentarily, legal representation is not really an adequate due process substitute for competency in this context. 

Because the district court had refused to consider Mr. Gonzalez' competency at all, the COA remanded for a retrospective competency evaluation. The COA pondered what the remedy might be if Mr. Gonzalez was not competent for revocation proceedings:

So, do the district courts have the authority to order Gonzalez or someone similarly situated restored to mental competence in advance of a probation revocation hearing even if restoration required his involuntary commitment to a mental health facility for some period? We suppose they do. Gonzalez has a significant liberty interest at stake—upon revocation, he has to serve 52 months in prison. The restrictions on his liberty in prison are manifestly greater than those he would experience on probation. As we have found, the Due Process Clause requires him to be competent when the State seeks to revoke his probation. There are, then, two logical dispositions: The district court can either order reasonable steps to restore a probationer's mental competence or preclude the State from moving forward with the revocation, in effect creating a defense of incapacity.

Finally, the COA recognized that it could be a paradoxical situation when a person might be held form months for competency evaluation before getting a short intermediate sanction:

We have reservations about how a probationer's due process right to be competent at a revocation hearing intersects with those lesser sanctions, particularly a two- or three-day jail stay. There is a certain incongruence in suggesting incompetent probationers can be or should be involuntarily committed for months of treatment to render them competent for a hearing to determine whether they should spend a few days (or even 60 days) in jail as punishment for violating a condition of their probation. We posed that incongruity to the lawyers during oral argument and did not have our concerns allayed. This constitutional conundrum, however, invites no immediately obvious solution—that's what makes it a conundrum, after all—so we held no real expectation that the jurisprudential fog might lift during oral argument. 

This case leaves open other questions that occasionally might come up regarding whether competency could ever be relevant at other post-conviction proceedings, like direct appeal or habeas. 

[Update: the state did not file a PR and the mandate issue on February 3, 2020.]

Saturday, January 11, 2020

Greater-than-typical harm not a proper aggravating factor

James M. Latta won in State v. Gibson, No. 120,657 (Kan. App. December 20, 2019), vacating an upward dispositional departure in a Geary County identity theft and perjury prosecution. Mr. Gibson fell into a presumptive probation category, but the district court imposed prison based on its finding that the Mr. Gibson's use of his brother's identification information resulted in his brother's arrest in another state, which it found to be greater than typical harm. The COA agreed that this factor was not an appropriate aggravating factor:

Our case fits the rule laid out in [State v. Favela,  259 Kan. 215, 911 P.2d 792 (1996)],and [State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005)]. There's a statutory mitigating factor when "[t]he degree of harm or loss . . . was significantly less than typical." K.S.A. 2018 Supp. 21-6815(c)(1)(E). But there's no counterpart in the statutory aggravating factors for greater harm than normal. As our Supreme Court said in Martin, "Valid unlisted factors . . . do not have counterparts included in a statutory list." The district court's chosen factor—that the harm was greater than normal—has a counterpart in the statutory list. So the converse of the statutorily listed item, relied on here by the district court, is not a valid departure factor since it is not found in the statute.

Because the departure factor used was not appropriate, the COA reversed and remanded for resentencing.