James H. Gildea

Transcription

<Anita Tebbe> Please rise. The Kansas Court of Appeals is in session. <Judge Malone> Thank you, all. Please, be seated. <no audio> Good afternoon, everybody. We are back for our afternoon session, here. This is the April docket of the Kansas Court of Appeals, sitting here at Johnson County Community College. We're so very grateful and happy to be here. We try to come here once a year, in April, for hearings, and it's a good experience for both of us. So, we're happy to be here. I am Judge Tom Malone. To my right is Judge Stephen Hill. To my left is Judge Michael Buser. We are the panel for today's cases. I'll call the cases in the order of the published docket. For the attorneys, when I call your name, please come forward. We do have a makeshift counsel table for you. Please let us know your appearance, esspecially if your name is not on the brief, so that we get that accurate for our records. As most of you probably know, we have read your briefs, in advance of today's hearings, so we are familiar with the facts of your case, and what the legal issues are. You might keep that in mind, as you make your arguments, during the limited amount of time that you have. As the presiding judge, I'll be the timekeeper. Each party is given fifteen minutes for your argument, unless it's designated differently on the docket. We may have one of those cases, this afternoon. But, anyway, if there's more than one attorney per side, you need to let us know in advance how you wish to divide your time. Also, the appealant attorney should let us know, if you wish to reserve any of your time for rebuttal. After the hearings today, your case will be deemed submitted for decision, and we'll take the case under advisement, and get a written opinion out to you and your clients, just as soon as we possibly can. So with that background, I'll go ahead, and call the first case, this afternoon. It is a case from Johnson County. It's 110-454. It's entitled "The State of Kansas vs. Emmanuel Ellie, if I'm pronouncing that correctly. One thing I'd like to do today, for the benefit of the students here in the audience, and also those watching us - this is being video streamed - I'd like to give a very brief summary, a written summary, of the facts of each case, and what the issues are. So, if you'll indulge me, I'll do that, here. In this case we're about to hear, the facts are as follows, summarized: On October 31, 2011, W.H. had an argument with Emmanuel Ellie, the defendant in this case, whom W.H. believed she was exclusively dating, after she thought she saw him with another woman. Although Ellie denied the accusation, W.H. told him their relationship was over. That evening, W.H. had sexual contact with Ellie's friend, Rodney Blue, and fell asleep in Blue's apartment. Later that night, Ellie came to Blue's apartment and physically attacked W.H. . As a result of these events, a jury convicted Ellie of rape, aggravated kidnapping and aggravated battery. A couple of the primary issues are: Issue number one - Was there evidence that Ellie confined W.H. by force or threat, sufficient to support the kidnapping conviction? Another Issue: Does the kidnapping statute create alternative means of committing the crime? A third issue is : Did the district court err, by holding W.H. was unavailable as a witness, and that the state had made adequate efforts to locate her, which led to the court allowing the State to present her testimony, through her preliminary hearing transcript? So, that's just a very brief summary of what the issues in this case are. So, if counsel are ready, we can go ahead, and proceed. For the appealant we have.. <Kerls> Christina B. Kerls, of the Public Defender office, for Mr. Ellie. <Malone> And for the appealee? <Malone> And for the appealee? <Malone> Ms. Kerls, whenever you're ready. <no audio> <Kerls> I'd like to reserve three minutes for rebuttal, please. <Malone> OK. <Kerls> I'd like to focus my argument on the first issue in the brief, and some of the others on the brief, unless this court has questions. The first issue in the brief is sufficiency, relating to the aggravated kidnapping charge. Just as a preliminary matter, I want to clarify, because the State framed this as a jury instruction issue, as opposed to a sufficiency issue. Our argument is that it is a sufficiency issue, even under the alternative means, according to the Supreme Courts decision in Wright, a failure to present evidence, on each of the alternative means, requires reversal for sufficiency. So, we framed it as a sufficiency issue, because the Kansas Supreme Court has also framed this as a sufficiency issue. We actually raised sufficiency under two theories: both a straight-up insufficient evidence, and under an alternative means theory. In its closing arguments the State proferred three different underlying acts, which could support the conviction of aggravated kidnapping: That the aggravated kidnapping occurred when Mr. Ellie allegedly dragged W.H. from the bedroom to the living room; Second, when he sut and locked the apartment door; or third, when he dragged the complaining witness outside . Those are the three different theories. The jury was given a unanimity instruction, and told that they had to be unanimous on which one of those theories they used, in order to convict Mr. Ellie. Just for the purposes of this argument, I'd like to start with the alternative means, because we believe that will actually cover two of those theories, and then I'll addrress the one thatisn't covered by the alternative means argument. The State has conceded that taking and confining are alternate means. However, they argue that the mens rea element, needed to inflict bodily harm, or to terrorize, doesn't create a separate alternative means. They base their opinion on the Kansas Supreme Court decision - Heberlein? I don't know if I'm pronouncing that right. But, essentially, that opinion dealt with a separate subsection of the kidnapping statute, to facilitate flight, or commission of the crime. We would argue that the decision in Heberlein isn't directly applicable to this case, because that particular subsection at issue in that case had the same intent element. That intent element was to facilitate. The options within that subsection were to facilitate flight, or to facilitate commission of a crime. That isn't the case, here. There is no common intent element within that subsection, to hold with the intent to terrorize, or hold with the intent to inflict bodily harm. There's not that same mens rea common facilitate, as there was at issue in Heberlein. So we would argue that there is a separate alternative means issue, other than simply the taking, or confining, which would create four different alternative means, on which the jury was instructed. In order for Mr. Ellie to be convicted, the State had to present evidence of each one of those means. Specifically, we contend that the State did not present evidence of each one of the means, because it did not prove, that at any time, Mr. Ellie confined W.H., and that he did any of the acts, which the State alleged could constitute aggravated kidnapping with the intent to terrorize. <Hill> What about locking the door to the apartment? <Kerls> I would argue that's not sufficient. I mean, yes, there is evidence that he locked the door to the apartment, but the intent has to be to confine Miss Ellie. There was no evidence. First of all, Miss Ellie, herself, testifed through a preliminary hearing. She didn't, in any way, indicate in her testimony that she ever tried to get away. It was Rodney Blue's apartment, and Rodney Blue explained that the lock on his door was an inside deadbolt, and all you had to do was twist it to unlock it. He also testified that when he and Mr. Clark were standing right outside that door, at no time did he see anybody attempt to jiggle the handle, in any way, in an attempt to get out of the apartment. Additionally, he testified that he heard yelling from both W.H. and Mr. Ellie, but didn't testifiy that he ever heard W.H. asking to be let go, asking to be let out. We'd argue - <Hill> But that act of locking that door certainly confines W.H. to that apartment. <Kerls> I would argue that it doesn't, unless she, in some way, tried to get out. The evidence - <Malone> Let me ask the question this way: Can a person be kidnapped, without their knowing it? <Kerls Let me think about it. I would say "no", under the definition of "confine", in that they have to be restricted in some way. Their freedom to leave has to be in some way restricted, and if she never - <Malone> Isn't the intent requirement solely on the defendant? <Kerlz> I do believe the intent requirement is on the defendant, which goes back to what I was about to say, that in this case, there were two other people present: Mr. Blue and Mr. Clark . They were outside of the apartment. Mr. Ellie lock - <Hill> So, they -weren't- present. They were outside? <Kerlz> They were in the general area. My point being is that because the locking of the door could just as easily have been done keep them out, as W.H. -in-. I would argue that there needs to be something more than simply the locking of the door to show that the intent of Mr. Ellie in locking the door was actually to confine W.H. Without any sort of other evidence - <Hill> Does she know that was a deadbolt, and that she could have unlocked it, from the inside? Does the record show anything, like that? <Kerlz> The record doesn't show that, but she also didn't - <Hill> This time, she'd already been struck, right? Am I correct, or do I have my facts wrong? <Kerlz> I don't remember exactly when the first strike occured, whether or not it was before he locked the door or after he locked the door. I honestly do not remember. I would argue that it doesn't matter in terms of whether or not the State presented sufficient evidence to establish that he confined her, with the intent to hold her, for one of the two alternative mens rea elements. The simple act of locking the door could just as easily have been, in fact more likely have been to keep the other two out, as Rodney Blue testified. All she would have had to do was to reach up, turn the lock and open the door. But, there's no evidence that was even attempted. There was no evidence that she told Mr. Ellie that she wanted to leave. There was no evidence that Mr. Ellie confined her, other than the locking of the door. And given, it just as likely that the intent behind that was to keep the other two out, as to keep her in, we would argue that there needed to be something else, in order for the evidence to be sufficient that Mr. Ellie actually confined her. <Buser> If we get past the issue of whether of not she was confined, and assume for the moment that she was confined in the apartment, when the assailant turned the deadbolt lock, and you have two guys outside the house that can't get in. Wouldn't that fall under, too, that the kidnapping is the confining of a person to facilitate flight, or the commission of any crime? Wasn't the purpose for turning the deadbolt lock, to make sure that the boys outside can't rescue her, and that he can facilitate and continue beating her up? <Kerlz> That wasn't the way it was charged.It was charged under "to terrorize, or ..." <Buser> So, isn't that your argument? Your argument is they got it wrong, because they charged that to inflict bodily injury, or terrorize the victim? <Kerlz> If they had charged it a different way, do you believe they'd have a better argument? But, in this case, there was no evidence that he - if we assume that the act of locking the door is confining her - the only evidence is that he did that to inflict bodily harm, not to terrorize. There's no evidence that there were any threats. As Mr. Blue testified, he heard yelling back and forth, but he didn't testify that any threats were made, during that exchange of yelling, back and forth . So, even if the act of locking the door is considered "confinement", we would still argue that it's not for the reasons stated. There still wasn't the evidence that he did that act, with the intent to hold and terrorize her, as opposed to just hold her to inflict bodily harm. We agree that under all of the theories proffered by the State, that there was evidence that he did those acts, with the intent to inflict bodily harm. We agree. Our issue is that there was no evidence, under any of those proffered theories, that he did those acts with the intent to terrorize, even when Mr. Ellie dragged her outside. While W.H. testified that she had a subjective fear that she was going to be thrown over the balcony, there was no evidence he ever communicated any such threat, or that he communicated any threat whatsoever. The only evidence was, after he took her outside, he inflicted further bodily harm. So we would argue, that under any theory proffered by the State, there was no evidence of intent to terrorize, because we have nothing other than infliction of bodily harm. <Malone> Your argument is predicated on the fact that that's a separate alternative means? <Kerlz> Absolutely. It is absolutely predicated on the fact that intent to terrorize is an alternative to inflict bodily harm. <Buser> We don't have any Kansas cases on that, do we? <Kerlz> We don't, The only thing I've found so far is the taking and confining, and to facilitate. <Buser> The other subsection? <Kerlz> Yes. I have not seen anything yet, on this, but, once again I argue that it's distinguishable, based upon the reasons that I've already stated, that to facilitate is a common mens rea to both of those options, within the means. Now, as to the straight-up sufficiency argument, we've already addressed two of the State's theories, that he confined, and then he dragged her out of the apartment. Those were two of the underlying acts, upon which the State based its argument that the jury could convict of aggravated battery. The third one was that when the defendant, Mr. Ellie, dragged W.H. from the bedroom to the living room, that itself could constitute taking, for the aggravated kidnapping conviction. The problem with that is that there wasn't evidence to support any assertion that Mr. Ellie took W.H from the bedroom, to the living room. The only even hint of it is Brandon Clark's testimony. However, when he was pressed further, he admitted that he never saw either Mr. Ellie or W.H. in the bedroom, and when he was at the door, both of them were already in the living room. W.H's testimony indicated the only time she was ever in that bedroom, is when she walked through it, to go to the bathroom. So, there was no evidence presented at trial that Mr. Ellie took W. H. from the bedroom, to the living room. So, there wouldn't be sufficient evidence. <Buser> What about the carrying of her, from the apartment to go outside, down the steps, wherever he was going to go with her, at that point? <Kerlz> That would, we would agree that that is a forceful taking, What we would argue is that there was no evidence that he did that with the intent to terrorize. It goes back to: Yes, there may have been evidence that he did that with the intent to further bodily harm, because there was evidence that he did inflict further bodily harm; But without something else indicating that he intended to terrorize her, despite her subjective fear, we would argue that the State did not present evidence that Mr. Ellie took W.H. at that time, to hold her, with the intent to terrorize. So, under any of the three theories, on which the State told the jury that it could base its conviction upon, there was insufficient evidence. Unless the court has further questions, I would submit the other issues on the brief. <Buser> I've got another question. On the issue the victim testified at the preliminary hearing, correct? <Kerlz> Yes. <Buser> And, was there any difficulty in getting the victim to the preliminary hearing, for her testimony? <Kerlz> My understanding - let me just clarify some facts, here. The preliminary hearing in this case was separated into three hearings. <Buser> Why was that? <Kerlz> I believe, at the first hearing, they either ran out of time, or a specific witness wasn't there - I don't remember which one it was - so, they continued it. W.H. was ordered to appear, at that second preliminary hearing date, which I believe was February 15th. She didn't appear. <Buser> She was ordered by the court to appear. She did not appear? <Kerlz> She did not appear. They went ahead, and took the testimony of the witnesses who were there, But then continued the preliminary hearing, put out a material witness bond on the complaining witness, continued it for a third day, and she did actually appear at -that- hearing, and finished her testimony. <Buser> So, she was under bond? She had to be under bond, which is very unusual. <Kerlz> Yes. <Buser> In order to compel her testimony, against her ex-boyfriend, I presume? <Kerlz> Yes. <Buser> So then, we have this period of time, and we're ready for trial. My question is, I don't see, anywhere in your brief, were you don't make the point that the State had her under subpoena, under an order of a material witness bond, and they apparently didn't continue that, or they didn't have a subpoena, or hold her in jail, or anything, and all of a sudden, she can't appear for trial. <Kerlz> I do believe I did make the comparison to the Plunkett case, where the Supreme Court found that because it was a situation where the defense wanted to admit witness' testimony from the first trial, and the second trial . The Supreme Court said that because they didn't maintain contact with the witness between the two trials, that wasn't sufficient to show due diligence. I made the comparison with this case, and in this case, there's even more, because Rodney Blue, who was also at the scene the night all of this happened, was charged with crimes related to it. W.H was subpoenaed to testify at the trial against him, and while that trial didn't go forward, she didn't show up, at that trial. That trial was in July. The State didn't even attempt to subpeona W.H. for Mr. Ellie's trial, until January 2, when the trial in this case was to start on January 28. So, it was less than a month, before they even subpoenaed her and there's no evidence that they attempted to find her, before the date of the subpeona, or that they kept in contact with her. <Buser> The importance of this, from your point of view, is that because she didn't show up, the defendant had the evidence from her preliminary hearing brought in, and that was used by the State, because the State had to show that she was unavailable? <Kerlz> Yes. <Buser> And, we have the issue of his rights of cross-examination and things of that nature? <Kerlz> Yes. <Buser> So, it was pretty important. She was a critical witness? <Kerlz> She was definitely a critical witness, particularly because she was the only the only witness who testified that Mr. Ellie ever put his fingers inside of her, which is what supported the rape charge. The only evidence of the rape came from W.H.'s testimony, because both of the other witnesses, the persons who where there, Mr. Clark and Mr. Blue, both testified that they never saw that. So, at least, for the purposes of the rape charge, it is highly unlikely that a jury would have convicted of rape, had her testimony not been admitted. We would argue that the State, because they should have known that they would have a difficult time procuring her presence, because of her failure to appear at a preliminary hearing, her failure to appear at a co-defendant's trial, subpoening her less than a month prior to trial, despite actions they took, after issuing that subpoena to attempt to find her, waiting so long to subpoena her, not staying in contact throughout that time, knowing she was going to be so difficult, shows a lack of due diligence, and her preliminary hearing testimony should not have been allowed to be read to the jury, in lieu of her live testimony. Thank you. <No audio> May it please the court. The State appears, by Stephen Obermeier. I'll address the same, the first issue in the first order, then answer questions on the second issue, as well. With regard to the first issue, we disagree on what the remedy is, so I'd just like to talk about that, briefly, in that I see this as an issue involving a jury instruction, assuming they're right, jury instruction error, as it was in State vs. Timley, when there was an issue. I don't think there's any Kansas Supreme Court case, that says, "If you have sufficient evidence of one alternative means, but not another, the remedy is acquittal". I don't think that there's a case that says that. I would cite the court, or direct the court to Judge Morritz' concurring opinion in State vs Brown, where she talk about harmless error of trial. If it's a trial error for alternative means, and I think Chief Judge Malone in State vs. Shaw, you had a concurring opinion on that point. So that's why I think we have this basic disagreement over what the remedy is. It's the State's hope that you don't get to the remedy, because State vs. Heberlein is pretty clear that the alternative means are your different subsections of the aggravated kidnapping statute. Subsection three is "to inflict bodily injury, or to terrorize". You don't need both of those. That's an option, within a means. So, that's why we don't need to present evidence of terrorizing. However, on the motion for judgment of acquittal, District Judge Sarah Welch found that there was evidence of terrorizing. If the court might recall, the defendant was going to drag W.H. out of the apartment. He had ripped her clothes off her, thrown her clothes over the balcony, and he's dragging her outside. Next: her bloody handprint is on the wallboard, next to the door, because she does not want to go outside, because she thought she was going to be thrown over the balcony. Whether that's her subjective intent, or whether that was a communicated threat, when the defendant threw her clothes over the balcony, I think that would be a question of fact. Though, Judge Welch thought that was sufficient evidence of terrorizing a communicated threat. A communicated threat does not need to be verbal. There's a case - I think it involves putting a burning cross on somebody's yard in Kansas. I can't think of the name. It says you don't need to have a statement. You can have a communicated threat, that doesn't need to be verbal. <Hill> Have you ever heard the sound of a pump shotgun, when it's jacked in? <Obermeier> That would be another example of a communicated threat. <Hill> I think I once whote an opinion, that said that. It seems like a threat, to me. <Obermeier> Yes. <Hill> If you ever hear that, when the gun's pointed at you. Plink. But, the question that I have here, is there's much more than this. When you get kicked twice, when you get hit, when you get your clothes taken off, you're called names, when you're dragged outside - isn't all that "terrorizing"? <Obermeier> It's certainly a communicated intent to threaten and harm, so, yes. I think that would be terrorizing, all of the things that he did to her, in addition to the infliction of bodily harm. Our initial argument was under State vs. Heberlein and Brown, that you don't need to have both, inflicting bodily injury and terrorizing the victim, but there is sufficient evidence to support that. As far as the three claims made in the brief of appealant, the dragging from the bedroom, Ellie's best friend, his name was Clark, looked in the window, got up the stairs to the apartment, and saw Ellie pulling W.H. from the bedroom of the apartment, to the living room. That's Volume 32 page 123. He was pulling ber backwards, with both arms under her underarms. Blue, the person who owns the apartment, when he left the apartment, he testified W.H. had got up, to go to the bathroom. which was in his bedroom. Blue goes outside, and Ellie's there, and immediately goes upstairs. So, that would be circumstantial evidence that there was pulling from the bedroom. The second claim, as far as closing the door of the apartment, Ellie came to the front door of Blue's apartment, he drags W.H. into the front room, and hits her. The door's open. He goes, and shuts the door. I don't know how cold it was that night, but it wasn't his apartment, and he didn't do it to keep the draft out. He did it to keep Clark and Blue out, so that he could wail on the victim, which he proceeded to do. <Hill> Is that when he locked it? <Obermeier> Yes, he went over, shut the door, and he locked it. So, it would take somebody with the key. The testimony varies on this one. There were two different versions. One was Blue unlocked the door, because it's his apartment; another version was that Ellie, later, after five or, unlocked the door to the apartment. <Buser> It just seems to me that, with regard to your charging, you did not charge that the taking and confining was done, with the intent to facilitate the commission of a crime. To me, the locking of the door was to facilitate the crime of beating the woman, as well as the taking her outside, down the steps, where he beat her again, on the ground, once they got scared by neighbors. That would be, also, to the taking, I think, maybe heading to a car, to facilitate some more beating of her, away from the apartment, but you didn't charge any of that. You're going "if we agree this is an alternative means situation, all of these actions would have be taken to terrorize the person, which doesn't seem to me as strong an intent as the commission of any crime, as far as the evidence in this case. <Obermeier> As far as the charging decision, Judge Buser, I don't recall. I don't think there's anything in the record, as to how we charged it, the way we did. If you charge to facilitate - <Buser> As far as the instruction, you didn't. <Obermeier> Right, but the complaint only alleged that it was to inflict bodily injury or terrorize the victim. I guess we would have had to amend the complaint, or something, to get that jury instruction. But, even under subsection three, if the taking or confinement was to inflict bodily injury, which is probably less than committing a crime, some other crime... <Buser> I'm with you, on that. It's the terrorizing the victim. <Obermeier> I'm sorry? <Buser> The terrorizing the victim. I understand how the taking, and/or confining, was done to inflict bodily injury, which if you charged in under subsection two, would have been to facilitate the commission of a crime, which is beating her up, and having sexual relations. it just seems to me that "terrorizing" is a little vague, given all the other possiblities you had to charge, with regard to commission of the crime. <Obermeier> I would say, if the court thinks, that within this subsection of the kidnapping statute, that you have to have inflicting bodily injury and terrorizing the crime, which this would be the first case that would say it's an alternate means within a subsection that I'm aware of. There still is sufficient evidence of the terrorizing of W.H., who was sound asleep, or passed out, or something, when she's awakened by punches from Ellie, then all the things that happen to her for five to seven minutes, that she's getting... <Buser> Could you address that second issue? <Obermeier> Yes. With regard to the court's questions, there was a material witness bond on W.H., I believe it was a PR bond, and I believe she appeared at the first preliminary hearing setting. it got bifurcated. <Buser> It was a PR Bond? <Obermeier> I think it was a PR Bond. <Buser> Personal recognizance? <Obermeier> Yes. <Buser> So, she doesn't show up for the next court appearance, she doesn't have to pay any money, because it didn't require a bondsman? <Obermeier> She would have to pay it personally, as opposed a bondsman, I guess. But, she would be responsible for that. But, as far as efforts to look for her ... <Buser> But, did that continue, past the preliminary hearing? <Obermeier> She did not show up at the second preliminary hearing setting, but she showed up at the third prelimary hearing setting, and testified. I don't think it continued past that. <Buser> And, that's my question, because as we all know, at the conclusion of that preliminary hearing, the defendant is going to be bound over for trial, probably? <Obermeier> Right. <Buser> Then there'll be another court hearing, and another court hearing. Why in the world, when she was failing to appear earlier, and you know we've got an ex- boyfriend, ex-girlfriend situation, and we all know how those turn out, later on, in the criminal justice system: Everybody falls back in love with each other. Why not continue that material witness bond, and order her to appear at the arraignment, and down for the next hearing, until you get to the trial? <Obermeier> If our trial judge were Judge Michael Buser, maybe that would have happened. The issue is whether or not Judge Sarah Welch abused her discretion, and nobody would agree with her in finding due diligence. I guess it was terminated because she had a young child, and are you gonna keep her in custody from the prelim date in March of 2012, until the trial date of February 2013, to make sure she appears ? <Buser> You wouldn't have to necessarily keep her in custody, but you would continue her bond, and require here to appear, So, when the arraignment shows up, which is 2, 3, 4 months before trial, and she doesn't appear, that gives you a heads-up to start looking for her, for four months, rather than waiting for 30 days before trial before you say, "Hey, I wonder if she's gonna show up? Let's start looking for her". <Obermeirer> Right. I guess my heads-up would give me a comfort level, once she's on probation. for whatever misdemeanor crime she was granted probation, on, that summer. So, she's reporting to a probation officer, she has involvement with SRS, she's got a young child. There are ways to contact her. <Buser> So, she was on probation, during this time period? <Obermeier> Yes. And, it wasn't until November that there was a bench warrant issued for here arrest, on a probation violation issue. Then, in late November or early December of 2012, detective Rick Parsons testified he started looking for her. So, this wasn't just three or four weeks out. He's looking for her in late November or early December 2012, and that's - <Buser> The trial is when? <Obermeier> It's in February. Late January, I think it's in Late January, 2013, that he's looking for her. That's in volume 35, pages 3 to 4. They were executing a search warrant at a place where she had lived, and she wasn't there. They checked with SRS. She's not there. They checked all of their criminal databases, the regional justice information database, they checked with SRS. They checked with the Sheriff's Office, who has an active warrant out for her, and is trying to look for her. There's also Accurint, where they're trying to locate her, that way. I think to a reasonable person would agree with Judge Welch, in finding that the State made efforts at due diligence. It may not be perfect diligence, I guess, but, I don't know what else you could do, to find somebody who's on probation, when you start looking for them two months in advance. The defendant was offered a chance to continue the case, so the State could continue looking for W.H. in late January, for that trial setting. And, he did not want to do that. <Buser> Why would the defendant want to continue the case, when he knows that the critical witness that's going to incriminate him is on the lam? <Obermeier> Right. So, his attorney could argue "Where's the victim? Why isn't she here? She doesn't care. So, find him not guilty." It's probably to his benefit that she's not present, for that. And, there was a discussion before closing argument, at the instruction conference, as to what defense counsel can argue about W.H.'s absence, in that case. So, for those reasons, a reasonable person would agree with Judge Welsh in determining the victim was unavailable, and there was due diligence. I think that was all I had to say. I would point out the jury trial did start on January 28th, 2013, so it was late January. It was a four day trial, or so. Unless the court has any questions, I would ask you to affirm his convictions. Thank you. <No audio> <Kerlz> There are just two points that I want to address, and clarify. First of all, with the dragging W.H. out, throwing her clothes over the balcony. We don't disagree W.H. was likely terrified by that, likely herself, terrorized. but unless the State presented evidence that the defendant did that with the intent to terrorize her, they didn't present sufficient evidence. Even if he did drag her out, with the intent to throw her over the balcony, that's still dragging her out, taking her with the intent to inflict bodily harm, not with the intent to terrorize. Secondly, in regards to the second issue, I would argue that the fact that she had a probation violation warrant in late November, and the State still didn't decide to issue a subpoena when it should have known that she was going to be even harder to locate, because she wasn't reporting to her probation officer. They still didn't issue a subpoena and put all of their weight behind looking for her, adds to - <Hill> You think they'd be able to find her and give her a subpeona, when they couldn't find her and arrest her, when she failed to report? <Kerlz> Maybe not, but the issue goes to due diligence, and whether or not they acted with due diligence in attempting to get her there. We would argue that they didn't act with due diligence, because they knew that, first of all, they knew she was going to be difficult from the preliminary hearing. They knew she was going to be difficuly in July, when she didn't show up to Rodney Blue's trial. I am not totally sure when she was put on probation, so I really don't know, if ... I can't really make the argument that her being on probation rebuts the argument that her being on probation gave the State some sort of confidence that she would be there. But, she didn't show up at Rodney Blue's trial. She apparently violated her probation sometime in November. <Buser> And at that point, the State would would know that she would know that if she is arrested or stopped, her problem isn't going to be testifying against her ex-boyfriend. Her problem is going to be she's going to go to jail, or have the possibility that her probation is going to be revoked. So, there's an even greater chance, a greater reason for her to stay away, so she doesn't get arrested, either from the probation violation or to testify at trial. <Kerlz> Right. So once they found out it was even more imperative that they tried to get another material witness bond, so she's not only facing a potential jail term or prison sentence, depending on her underlying crime, but also, at least, the first material witness bond was $10,000, a pretty hefty financial incentive to make herself known, as well to make her as well to make her whereabouts known. But, they still waited until January 2nd to even issue the subpoena . Another point that I think bears mentioning is the hearing on this date to declare her unavailable was January 18. At that time, the district court didn't relievethe State of its obligation to continue to locate her, but on the first day of trial, the State rested on its arguments from the hearing 10 days before. It didn't indicate that it continued looking for her. We would argue - but, the district court still found that it had exercized due diligence We would agrue that the State's lack of keeping in contact with her from the preliminary hearing, and then failing to even attempt to subpeona her until January 2nd, and not providing any evidence of further actions it took from January 18th to January 28th., to continue to locate her, indicates that no reasonable judge would decide that the State had actually exercised due diligence in securing this critical witness for trial. We would ask that Mr. Ellie's convctions be reversed. <Malone> Thank you, counsel, for your grace, and your arguments. <no audio> We'll move on, to the second case on the docket. Taking a break from criminal matters, the next case is going to be a civil case. I believe it is designated for a twenty-minute argument, per side. This is a case from Johnson County. It's 111-521. It's entitled "Heartland Apartment Association vs. the City of Mission, Kansas". Again, for the benefit of the audience , I'll give a brief summary of the facts of this case, and the issues. The City of Mission adopted a transportation utility fee ordinance, often called a "T.U.F." ordinance, to raise funds for street maintenance. The TUF is paid by all owners of developed property within the city, unless exempted. The amount assessed is based on the direct and indirect use or benefit each developed property owner derives from the use of the city's public thoroughfares, generated by the developed property. Heartland Apartment Association, and other property owners filed a lawsuit, seeking to declare the ordinance in violation of state statutory and constitutional law, to enjoin enforcement of the ordinance, and to recover the amounts that have been paid. On cross-motions for summary judgment, the district court found that the TUF was a tax. However, the district court found that it was not an excise tax, prohibited under KSA 12-494. So, the district court upheld the TUF. Heartland raises several issues on this appeal, and the city cross-appeals, challenging the district court's ruling that the TUF is a tax. So there's many issues in this case. The primary issues are: "Is the TUF a tax, or is it a fee?"; The second issue is, "If it is a tax, is it an excise tax, in violation of KSA 12-494?" So, with that background, I'll ask for appearance of counsel. You can come forward. Who do we have here, for the appealant? <Shaney> Your Honor, Mary Jo Shaney, here on the behalf of the appealants, in this case, the plaintiffs below. I am joined by my colleagues, Jim Bowers, and Daniel Goldberg. <Malone> All right. And for the appealee? <Murray> The appealee and cross-appealant appears by Thomas B. Murray, and Mark A. Samsel. I will present the argument. <Malone> Shaney, whenever you're ready. Do you wish to reserve any rebuttal time? <Shaney> Your Honor, I do wish to reserve seven minutes of the twenty minutes, as rebuttal time. <Malone> OK. <no audio> <Shaney> May it please the court. We're here today, because the City of Mission, Kansas passed what it calls a fee, the "Transportation Utility Fee", which is, in reality, an illegal excise tax. The trial court properly concluded that the so called "fee" was a tax, but the trial court erred, when it determined that it was a legal tax. The broad questions break out, Your Honors, for this court, in two general ways: First, one general question is: is it an excise tax, under KSA 12-194? The second broad question is: were the appealants provided sufficient process, when the city enacted this so-called "fee", and were the appealants treated equally or fairly - are they being treated equally or fairly, under the TUF tax, as it presently exists? I will try to address those general questions in four ways: Number one - <Hill> Let me interrupt you first, counsel. Isn't it more accurate to say that is it an excise tax, or the nature of an excise tax? Because, as I read the statute, is says the City cannot impose an excise tax, or a tax in the nature of an excise tax. I'm sure you're going to enlighten us, as to what that means, but isn't that more accurate? <Shaney> It is more accurate. That is exactly what the statute says, KSA 12-194, is a prohibition against excise taxes, or taxes in the nature of an excise tax. <Hill> The scheme of things in Kansas, for municipal governments, they can enact taxes that the Legislature says they can? Or, they cannot enact taxes that the Legislatore prohibits? Which is it? You understand my question? <Shaney> I do understand. In other words, does a muncipal government have a right to impose any tax it wants, unless it's prohibited by the State, Or, they can only enact taxes that the state allows then to enact? Which is it? <Shaney> Let me go to it. -- "A city can enact only those taxes that are not prohibited by the Kansas Legislature." The core feature in this case is, "Was the TUF tax enacted, in violation of KSA 12-194?" which prohibits, with very few exceptions, none of which apply to the City. None of that is in dispute, The City did not try to engage the only exceptions that would have allowed it to pass the tax. And I will return to that, Your Honor. Before I do, I want to adresss just a couple of things. First of all, number one: the facts, very briefly. I know Your Honors are familiar with then, but there are a couple I want to focus on. Number two: I want to focus on the tax/fee distinction, under the Executive Aircraft case, as it was interpreted properly, correctly and thoughtfully by the trial judge in this case. Number three: I want to talk about why the TUF tax is an excise tax, in violation of KSA 12-194, which significantly in 2006, was amended, and that amendment eliminated any suggestion that there is a limitation on the broad prohibition, under 12-194. And finally, I'd like to address very quickly, as my fourth point, why the trial court erred in rejecting the claims of due process, and equal protection. A couple of points: Number one, on the facts.I just want to highlight - <Buser> Before you get to that, isn't it important to know our standard of review? How are we supposed to look at this? And, I just want to see if you agree with Executive Aircraft, where it says, "in examining a statute within the context of the Home Rule amendment, an ordinance will presumed to be valid, unless its infringement upon the tax statute, 'is clear, beyond substantial doubt'". Is that our standard of review? Is that how we're supposed to look at this ordinance? <Shaney> That is part of Your Honors' standard of review, and I don't disagree with it. There are additional presumptions and statutory construction rules that are at work in this particular case, and they each have to be addressed. I'm not suggesting that there's a formal way that the human mind goes through these presumptions, any more than you would at a regular trial, when the burden shifts from one party, to another. Those presumptions include, Your Honor, the tax statues, and the tax statute at issue in this case is not the city ordinance. We don't read KSA 12-194, as if we have to give the City every benefit of the doubt. We don't. In fact, it's just the opposite. 12-194 is a taxing statute, and must be strictly construed in the court. So that's one presumption. Part of what I will argue that the court needs to do in this case is examine, against a backdrop of the Calaway case, but looking at the presently existing language of KSA 12-194, what "excise" actually means. What Calaway says, and what Executives says, and what Homebuilders says, and what the Renaissance Festival case says, is that when you are trying to interpret what a statute means, and Calaway in particular was honed in on this, you have to look at what the Legislative intent was. And I'll skip to that, right now. Part of why we argued, Your Honor, that appellants contend that the TUF tax - I am calling it a tax, because the trial court declared it a tax - I realize we're in dispute about that. The TUF tax is an excise, or in the nature of an excise. By the way, the Attorney General of the State of Kansas also determined that the TUF tax was an illegal excise tax. <Buser> Was that binding on us? <Shaney> It's not binding on Your Honors, no. It does reflect, of course, what the Attorney General views as the Legislature's policy on tax matters. But, no, it is not binding. It is a guiding force. <Hill> That opinion addressed this particular enactment, did it not? <Shaney> It did, Your Honor. <Hill> But, the City chose not to follow his advice. <Shaney> The City chose not to follow its advice, and I want to come back to excise. One of the things the City also chose to do when it was challenged by several churches who sued the city in 2011, over this tax, claiming among other things, it was an illegal excise tax. Well, as the appealants do here, in that case, the city settled the case. They gave the tax fee money back to the churches, and they did one more significant thing. They amended their TUF statute legislation to allow, under Kansas' tax exemptions statute, to allow the churches and other not-for-profits to be exempted from the so called "fee". <Hill> Doesn't that necessarily mean that it's a tax? Isn't that a concession on the part of the City, that it's a tax? Because, churches can pay fees, if you want to. It seems to me that when the City did that, that means they conceded "this is a tax". <Shaney> Your Honor, if we had heard that before we filed a lawsuit, no one would have to be here. But I do believe that they wouldn't admit that, but if you look the thing square in the eye, and look at what it says, and what it does, and you're using a tax exemption statute, it sure as Heck begins to look more and more like a tax. <Hill> Well, it's not a fee exemption statute, is it? <Shaney> It's not. <Buser> Was the City's conduct, with regard to the churches in Mission, was that made a part of this record? <Shaney> It was, Your Honor. All of those, the petition that was filed by the churches, as part of the underlying record. The settlement agreement itself is part of the underlying record. We even have some admissions, that were filed by the City's then-attorney, as part of the underlying record. And to go back, Your Honor, to your point about churches aren't exempt from other types of fees. That is exactly so. In one of the issues that we have grappled with in this case, was that the City contended, and it says this in the TUF legislation itself, contended that this tax was modeled on the stormwater ordinance. A couple problems with that: Number One, the storm water ordinance is an ordinance the City could charter, out of. The City didn't do that, in this case. Number Two: the stormwater fee, unlike the TUF tax, does apply to churches and not-for-profits. So in that way, part of what the appealants argued is that you're not treating all owners of developed property equally, or in the same way. I'd like to go back for a moment to the excise tax, and its definition. Because we do contend that the trial court erred in finding that it wasn't an excise tax, the Calaway case fully supports the appellants' position, here, and here is why. Calaway does a couple of things: number one, defines what "excise" is; Number two, Calaway directs us to look at the actual legislative language, to determine what the legislature meant, so you can figure out, under 12-194, what "excise" means. Here's what Callaway said about what an excise is. That court stated that the term "excise" has come to mean andinclude practically any tax, which is not an ad valorem tax. An excise tax is a tax imposed upon the performance of an act, engaging in an occupation, the enjoyment of a privilege. It is a general term covering the entire field. Significantly, Calaway doesn't leave it there, although, that's somewhat where the trial court left it. Calaway says now, we've got to go look at the language, and Calaway's a 1973 case. The taxing statute that was actually at issue was, in shorthand, called the Tax Lid Law, and the actual statutory number was 79-4424. That is the predecessor law to KSA 12-194. So, Calaway is looking to find out: is it an excise tax that these are business owners are challenging, or isn't it? Here's what I gotta do: I gotta see what the statute says. What the statute said in 1973 is not what the statute says, now. Here's what it said, -then-: "No city shall impose an excise tax, or tax in the nature of an excise, upon a sale or transfer of personal or real property, or the use thereof, or the rendering of a service." In Calaway, that language was read as a limitation, rightly or wrongly. That's what that court decided, in that moment in time. But, that language was read as a limitation as to what excise could possibly mean, at that point in time. and the Calaway court said "That tells us the Legislature intended to narrow the scope, perhaps, that broad definition of "excise, in order to give meaning to the word "excise". <Buser> So, if we were dealing with 1973 statute, would there be an excise tax, would the TUF be an excise tax? <Shaney> Under the Calaway analysis, it might not be. Cause here's what Calaway did. <Buser> So, you're saying that since the change was to delete this language "upon a sale or transfer of personal or real property , or the use thereof, or the rendering of a service", that's been dropped. Now we know that the TUF is an excise tax? <Shaney> Yes. And that's part of the argument. In 2006, when the 12-194 legislation was amended, that language, sale or transfer of personal or real property, or service" was taken out. What Calaway says to us is that historical background and changes made in the statute must be considered in determining legislative intent, for the purpose of statutory construction, and for the purpose of determining what the meaning of "excise" is. So, the limitation, rightly or wrongly construed by the Calaway court, in the former tax lid law, now 12-194, no longer applies. The only excise taxes allowed are those expressly set forth in the statute itself. There are four or five exceptions. We laid them out in our brief. The City doesn't claim they are any of those. So, what this discloses, this change in the legislation, whatever the Tax Lid Law meant previously, this discloses the intent of the Kansas Legislature to broadly define and prohibit excise taxes. In concluding that the city of Mission's tax was not an excise, the trial court erred in three significant ways: Number One: the trial court focused on the word "practically" in the Calaway case, and lost sight of, or perhaps ignored the actual language of 12-194, which, as I already talked about, was amended in 2006. Number Two: the trial court failed to interpret the language a "tax", an "excise tax", or "in the nature of an excise tax" I realize what our judge did - I'm paraphrasing, here - but he said: "I've already determined it's not an excise, and therefore, it cannot be in the nature of an excise". I would respectfully suggest that, in a sort of plain reading of the phrase, "In the nature", you're talking about something that might be similar to, or have characteristics like, or function in a way, like. <Hill> Maybe those words are just surplusage, and we can ignore them? Maybe the prohibition is only excise taxes. We don't know why they put "or in the nature of excise taxes". Maybe we can ignore them. <Shaney> I don't know if that's what he did, for certain. It seems as if that language didn't matter. He did make a comment about it, and he said, "It doesn't mean anything more than what I've already told you told excise is" . But, Kansas Law, Kansas cases, and Kansas rules of construction would direct us that you can't not read the language in a statute. You have to assume the Legislature put it there for a reason, and not as surplusage. <Buser> You'd agree with me that "in the nature of an excise tax" means "in the character", the characteristics of an excise tax? Correct, OK. I'll bet your law firm has a few copies of Black's Law Dictionary. <Shaney> We do, Your Honor. And, I know the judge cited it, in this case. <Hill> He cited it, in this case, and it's the Bible for lawyers everywhere, right? The answer to that is "yes". <some audience tittering> <Buser> Judge Vano said, "Black's Law Dictionary defines an excise tax as 'a tax imposed on the manufacture, sale or use of goods (such as a cigarette tax), or an occupation, or activity (such as a license tax, or an attorney occupation fee). Now, I understand the characteristics of that. We've got a Kansas case, I think, that Mission points out, where a city, I think it was Bonner [Springs], was taxing admission to the Renaissance Festival. It's a ticket, it's a tax that you put on for doing an activity, or a job, or employment. It's typically transactional, based on each individual element. Now, explain to me how a tax on all the good people in the City of Mission, who have either residential or commercial property, and they have traffic, they have in the streets and they're being taxed on that, explain to me how that's anything characteristic of what an excise tax is described as, in Black's Law Dictionary? <Shaney> The excise tax definition in Black's Law Dictionary doesn't do justice to the excise tax definition, given in the Calaway case. The excise tax definition in Black's Dictionary doesn't take into account that in 2006, any reading of that statute that required, allegedly, some transactional element, is gone. <Hill> In your reading of Calaway, is it your argument that when a court says,"engaging in an occupation, or the enjoyment of a privilege," you're saying that it is a privilege to own property, and exercising your privilege of owning improved property in Mission, you pay this TUF tax. Is that your argument? <Shaney> That is our argument, Your Honor, and thats the third basis on which I was going to tell the court, advise the court, that the trial court erred in concluding that the TUF taxed no privilege, because here's what happens in the city of Mission: You cannot own developed property in Mission, without being taxed. <Hill> Is there - I have to ask, because I've wondered, when I first read this case - is there unimproved property, in Mission? <Shaney> That, maybe - I don't know the answer to that, Your Honor. In theory, there's a little provision in the TUF tax that carves out a tiny something for so-called "undeveloped property". It's treated slightly differently. <Hill> They don't pay the $72 a year? <Shaney> That's right. Although if they have a shed on it, or a garage, it's "developed". So, Your Honor, back to your point. the end of the dinner and you're giving you recall, is hard, I love <Malone> I need to interrupt, here. You're getting into your rebuttal time, at this point. <Shaney> All right, Your Honor. I will refer the court to our briefs, then respond accordingly, in rebuttal. <no audio> <Murray> May it please the Court. The reason that the Kansas Legislature does not want municipalities enacting ordinances under Home Rule that might be excises, is that there are certain things that the State Legislature wants the State to occupy the field on. For example, the State of Kansas doesn't want the City of Mission, the City of Overland Park, the City of Topeka, the City of Wichita, to license doctors. It doesn't want those cities to license lawyers, it doesn't want those cities issuing duck stamps, it doesn't want those cities to be issuing fishing licenses. If somebody in Wichita were lucky enough to find oil on his or her land, the Legislature certainly doesn't want the City of Wichita enacting a severance tax on that person's oil. That's why the language in in there. Conmversely, what we have here is a quintessentially local function. It's exactly what Home Rule is all about. The City of Mission, in August of 2010, passed a transportation utility fee, which has functioned very smoothy since then, and has been of great assistance to the City, in paying for roadways. <Hill> It's not an ad valorem tax. It's a property tax, isn't it? <Murray> It is not an ad valorem tax. <Hill> It is certainly not an ad valorem tax. <Murray> Right. <Hill> Although, as I read the big, thick book, if you've got a shopping center, you're gonna be paying a lot more than a one-family dwelling, at $72, a year. <Murray> You bet. The single-family dwellings have a flat fee, and of course, this whole litigation is motivated by people who own big shopping centers. So, that's understandable. But, as a segue to what you're saying, Judge Hill, when you consider the exigencies of this, and you try to get into "what is an excise, or in the nature of an excise", there are certain things that clearly are, and in fact, in its brief, the Attorney General lays out quite a number of activities that are. I think it's important too look at this. This is at page nine of the Attorney General's brief. It says, "Over the years, excises have been imposed in a myriad of forms, including taxes on commodities such as whiskey, legacy taxes, stamp taxes on legal documents, taxes on amusements, telephone and telegraph messages, express and freight receipts, instruments in transfer of securities, insurance policies, patent medicines, income taxes, club dues, gasoline and fuels, air transportation and telecommunication, and taxes on certain activities of pension plans, exempt organizations, and health plans. Obviously, the Legislature would not want any City in Kansas enacting an ordinance that would attempt to impose tax or fee on any of those kinds of activities. That's what this language means. In other words, when you are talking about the performance of an act, or the engaging in an occupation, or, enjoying a privilege, it is a voluntary act, quite clearly. And if, as Judge Vano did, you take the position that this is an involuntary enactment, it cannot be an excise. So, no matter what which version of the law you look at, certainly, the standard of review, as articulated precisely by Judge Buser, this cannot possibly be an excise, and that's why Judge Vano ruled the way he did. It's confusing at first, when you get into tryingto parse out all the statutory language, and look at tthe cases that have talked about it, but once you understand the big picture of what an excise is, and why the Legislature doesn't want certain municipalities enacting excises, It's really very simple. <Hill> Counsel, I asked Ms. Shaney what the essence of her argument was, concerning Calaway, and I'll ask you the same thing. This is quoting Calaway, "An excise tax is a tax imposed on the performance of an act, engaging in an occupation, or the enjoyment of a privilege". And, if I understand her argument, saying, "It is a tax upon my owning a piece of improved property in Mission, Kansas". Why isn't that an excise tax? Why doesn't it fit, under that? <Murray> Well, Your Honor, because that's not at all the kind of privilege it's talking about. An excise is the voluntary obtaining of a special type of a privilege, not just owning a piece of real estate. That's also pointed out in one of these amicus briefs filed by an anti-tax organization. It's a nonsensical argument. You can't say that simply because you're exercising your already-granted right to own a home, that you are now paying for a privilege of practicing law, let's say. It's a nonsensical argument. And Judge Vano certainly gave no shrift to it, at all. But, in terms of whether this is or isn't an excise: if you find it's a tax, and it's an involuntary charge, then it cannot be an excise, because excises are all voluntary. As to the idea that practically any tax that is not an ad valorem tax is an excise, part of the mischief that we got into here came with the Attorney General's opinion, which was obtained at the request of a state legislator, not at all an unusual thing. Page five of the Attorney General's opinion, in the last paragraph, it says: "It cannot be an ad valorem tax, and instead, must be an excise tax, or a tax in the nature of an excise". Well, that completely skips the issuing law exam, on the theory that any tax that is not an ad valorem tax has to be an excise tax, and that's not what the law says. It says "Practically any tax". In the Von Rooten case, which we've cited, the court points out that an intangibles tax is neither an ad valorem tax, or an excise. So, it doesn't have to be one, or the other. So, the Attorney General's opinion is wrong. We believe that the plaintiffs' position is wrong, and that Judge Vano was correct. <Hill> He's been correct so far, cause you've crossed the field, too. <Murray> Well, Your Honor, You've read my mind, I'm starting right there. Let me say a few words about the cross-appeal, so you understand why we did this. There's a Colorado case that is more on point with these facts than anything I've ever seen, in the 43 years I've practiced law. It's just completely on all-fours. Yes, it has been said by the Kansas Supreme Court that if an act is involuntary, it has to be a tax, and we're well aware of that. I know that it's difficult, even in a case of first impression, which all parties agree this is, for any trial court to go out on a limb, and do what we ask them to do. But, appealate courts are not in the same situation. This is a case of first impression. Colorado and Kansas have often looked to each other for guidance on tax issues, and this was modeled after that case, to be a fee. If you look at stormwater fees, for example, which are perfectly legal, sewage disposal fees are legal, those are also involuntary, but they are totally legal. So, as a matter - <Hill> It exempted the churches from this, because, it was on the basis it was a property tax, did you not? <Murray> Your Honor, pardon my saying this. I wasn't involved in that, but when - <Hill> Well, it seems like, to me, the City, on one hand, is saying.. in settling the lawsuit with the churches, it's a property tax, and it's exempt. But, in dealing with these people, this is a fee, and Judge Vano got it wrong. See my point? <Murray> To the extent that you believe that conduct inconsistent, I can certainly understand that. I'm trying to point out only that, in cross- appealing, which to be very candid, I had a lot of soul searching about in this case, our belief was that if it ever did get at the Appealate Level, or the Supreme Court Level, we wanted that preserved, so that somebody could look at it. The Colorado decision is very well-reasoned. The Executive Aircraft case is 22 years old, it doesn't deal with anything akin to the fact situation we have here, and with stormwater fees being legal, sewage fees being legal, they're involuntary. Why can't an appealate court look at this, and say, "The reasoning in Colorado makes total sense"? It is a fee. It's not a tax. And that's a very legitimate position to set forth, here. But, I do acknowledge that if you find that because it's involuntary under current case law, that it would be a tax. It cannot, simply under any circumstances, be considered to be an excise tax. The reading that owning property is a voluntary act that is some kind of a privilege, is a very strained attempt to find something that isn't there. This is why Judge Vano's decision was so strong, in this regard. This is a classic example of Home Rule, properly utilitzed. It is not an ad valorem tax, and it's not an excise tax. It is a charge, which we've denominated as a fee, our client has, and absoultely must be upheld. It's been going since 2010, and has been very well, despite multiple changes of the city commission. <Hill> Let me ask you this: This has been challenged, similar enactments have been challenged, in Washington. <Murray> Your Honor, there have been about six, and nowhere, Idaho, Washington, Florida, Texas, Oregon, in none of these cases has a similar kind of transportation utility fee been invalidated, ont he basis that it's an excise tax. They've all been- <Hill> Invalidated, for other reasons? <Murray> You got it. Three have been validated, I believe it was Colorado, Texas and Oregon, have validated it. But the ones that didn't had nothing to do with it being an illegal excise. In fact, they found that it was not an illegal excise. So, it's a unanimous holding in other states, that it's not. <Hill> In Washington, they said it was an illegal property tax, wasn't it? <Murray> I don't recall, Your Honor. I know they did was it wasn't an illegal excise, and nobody has held that is is an illegal excise. And, it's not, here. The appealants have not addressed an issue that's raised in the brief, concerning a motion to alter or amend, and I simply want to state, for the record, since that's in their briefs - Your Honor, how am I doing, on time? <Malone> You still have nine minutes left. <Murray> Thank you. I simply want to state, so I don't waive the opportunity to put it forth, that after Judge Vano had made his ruling, and had taken extraordinary means to make sure every one had his or her chance to put everything in, and had ruled on cross-motions for summary judgment, meaning there weren't any fact issues. The appellants filed a paper, called a motion to alter or amend the judgment, in which they inserted an entirely new theory of recovery, that had never, ever been raised at all, at any time in the case, despite Judge Vano's very open request to the parties, to make sure they have everything in there that they wanted. <Hill> Which argument is that? <Murray> Your Honor, it relates to the idea that the ordinance is invalid, based on the manner in which was adopted. It's somewhat moot, becuase if that were held true, it would just get re-adopted. But anyway, that argument was made, and it was akin to filing a motion to amend a petition, after you've already gotten to the summary judgment stage. Judge Vano very correctly denied that. The case law was quite clear, that a motion to alter or amend cannot be used for that purpose, nor can any of those issues be considered, on appeal. I just wanted to emphasize that, because even thought it wasn't raised in the opening argument, it is extensively discussed, in the appealants' brief. We don't believe that it should be considered by the court, at all. With that, I'm finished, unless the court has any additional questions. Thank you. <no audio> <Shaney> I'm going to try to set a couple things, straight. The argument from the City about an excise as voluntary, and therefore can't possibly be the privilege of owning property, raises a false dichotomy. It sounds superficially like it might have meaning, but, in fact, it doesn't, in this case. Here's why it's a false dichotomy. Every tax: excise, property, income, intangible, the taxes that we're actually familiar with in Kansas, as opposed to a special fee tax from Colorado, all of those taxes, the payment is involuntary. And, what you look at- <Hill> I thought I understood the argument to mean, if you have a tax on tobacco, for example - and I know it's not a good argument - you don't have to smoke. So if you don't have to buy to tobacco, you don't have to pay the tax. Isn't that the nature of Mr. Murray's argument? You don't -have- to be a lawyer, so you don't have to pay that. You don't -have- to be a barber, so you don't have to pay that. <Shaney> So, in that sense, you don't look at the forced payment. You look at what the act is you're undertaking, in order to get the thing that you want. Cigarettes, a good smoke, for example, a nice cigar, a ticket admission to the Renaissance Festival. But in fact, it is a false dichotomy, here, because a tax payment is always involuntary, but you can choose to do some things, over others. And in this case, what we have said is that the privilege, if you want to use one of the Calaway definitions of what an excise tax is, it's the privilege of owning developed property in the City of Mission. And that's very much, Your Honors, like the privilege of doing business in the State of Kansas, which the Kansas courts found, many years ago, in cases like Pacific, which is cited in the City's brief, and in our briefs, at the trial level, that is a kind of privilege, that turned into one of the exceptions, under 12-194, and that's the license tax, the occupational license tax. That had to be legislated into 12-194. could you give as many days <Buser> Can you give us any case, anywhere in the United States, since the Beginning of Time, where a court has held that a taxing scheme, similar to this one, is not an excise tax, or is an excise tax? <Shaney> I can't tell you one, where it was called an excise tax, but let me say a couple of things about the Florida case that wasn't mentioned, the Washington case that was mentioned, There's an Idaho case, as well, and them, of course, we have the Bloom case. And here is one of the ironies. So, focusing, for example, on the Port Orange, Florida case, one of the reasons that the court in that case determined that their transportation and utility fee was illegal, is because it taxed owners and occupants, almost just as the City of Mission's does. The City of Mission doesn't tax occupants, by the way It's only owners. What Port Orange found offensive in that, is that, by gosh, that's a property tax. You can't try to get in here, and support it, by trying to claim to me it's an excise tax, because in Port Orange, a very similar statute was determined unconstitutional, because it taxed owners and they viewed that under their constitutions as a tax on ownership. Illegal. That's what that tax was struck down. That's why excise didn't make one bit of difference. In the Colvilel case, which the City likes to cite in their favor, and the trial Judge actually referenced in a footnote as being in accord with his decision, the Colville case is a little more complicated, in Washington. What happened in that, first of all, in Seattle, in the Washington case, the city actually had the power to pass an excise tax. The City was angliing to persuade the Washington Supreme Court that it should be upheld as an excise tax. There again, what the court found was, "you know, this looks a little bit to us like a property tax, But, City of Seattle, since you included in this tax owners and occupants, (occupants don't necessarily own property), we won't find it in violation of a property tax." The real harm in the Washington case was that there was very little relationship between what was the use, or the benefit to the users, and how much they were charged. It was all out of joint. One of the things that happens, when we try to go to thse other states, is that at some point, because constitutions and statutes are different, ordinances are different, you get so far afield from what Kansas law is, you end up eviscerating the very law we have, here, to help us understand- <Hill> Do you want to speak to Bloom vs. Fort Collins, [in] our neighboring state? <Shaney> Our neighboring state, and a beautiful state, at that. <Malone> You're down to two minutes. <Shaney> All right, Your Honors. I'll answer Judge Hill's question. Critically and correctly, the trial court, in our case, rejected the city's contention, that Colorado law, in the Bloom Case, should somehow displace Kansas Law, and here's why, here's partly why. In Kansas, a fee must be voluntary. In Colorado, it doesn't have to be. This is what our judge said, and he's right. In Kansas, actual use of a service is key in assessing a fee. In Colorado, it is not, in this case. The benefit of maintenance of the streets enurs to the public at large. So what happens under the TUF fee is that only those that own developed property in Mission have this extra, special burden, that doesn't fall on the rest of us who can zoom into Mission, and zoom out, presumable, and nobody has a toll road gate up. As to our other points, Your Honor, I said this in my opening remarks. I would ask the court to look at our briefs, which address the due process and equal protection arguments, and they also address the argument raised in our motion to amend, on a procedure, under 12-137. <Buser> Given that the TUF taxes every unfortunate Mission resident who has developed property in the city, correct? I mean, it does that? <Shaney> Except those that are tax exempt. <Buser> Right. Given that that's the character of that tax, would you agree with me that the TUF is more characteristic of a property tax, as oppsed to an excise tax? <Shaney> It has characteristics that are very much like a property tax, except that it was arranged and set up, so that it wasn't based as Kansas Law would require, strictly on value. So, superficially, in any case - we put this in a footnote in one of our briefs - There's only so far you can go, in saying "the thing that the city is presenting is not what it seems". But it does bear some resemblance to a property tax, yes. <Buser> Thank you. <Shaney> Thank you. <Malone> All right, counsel, thank you very much for your briefs, your arguments. You each did an outstanding job on the case. Not a run-of-the-mill case, as you realize., so we'll take this matter under advisement, and get a decision to you, as soon as we can. <no audio> <Malone> You can always clear the room, that's for sure. <laughter> <Hill> Must be an audition. <no audio> <Malone> All right, we do have one more case, this afternoon, getting back to the criminal arena. This is a case from right here in Johnson County, 110-943, entitled "The State of Kansas vs. James Lee Wilson". I will, again, try to give a brief summary of the case. After burglarizing a rural property, James lee Wilson attempted to elude Sheriff's deputies, in an extended car chase. After wrecking his own truck, Wilson stole a deputy patrol vehicle, and hit the deputy, as he fled the scene. Wilson swerved toward a second deputy, as he tried to maneuver around stop sticks, deployed across the roadway to try to get him to stop his vehicle. Wilson was ultimately convicted of numerous offenses, including battery of a law enforcement officer, and aggravated assault of a law enforcement officer. There are three issues raised on appeal: Number One: "Did the state committ prosecutorial misconduct during closing arguments, by vouching for a witness, and making inflammatory remarks about the defendant's case?" Issue number two: "Was there sufficient evidence to support Wilson's conviction of aggravated assault, on a law enforcement officer?" And then there is a final legal issue: "Did the district court err, by classifying Wilson's 1988 attempted burglary conviction as a person felony for criminal history purposes, in order to decide the length of the sentence?" So, with that explanation, we have returning counsel here. , Ms. Kerlz, but you're not on the brief, here. <Kerlz> I am not. My Bar number is 22234. <Malone> 22324? <Kerlz> 22234. <no audio> <Malone> 22324. <Kerlz> 22234. <Malone> I got it, this time. <Buser> Be sure that she's an attorney. <audience laughs> Highly, highly suspicious. <Malone> And then, Mr. Minihan is here, for the State of Kansas. So, Ms. Kerlz, do you wish to reserve any time, for rebuttal? <Kerlz> Yes, Your Honor. Three minutes. Once again, I'd like to focus my argument on the first issue of the brief, unless the court has questions on the others. The first issue in this case, is prosecutorial misconduct. As we know, prosecutorial misconduct has two steps to review: the first is whether or not the comments made by the prosecutor were ouside the wide latitude given to a prosecutor in discussing the evidence; and the second, whether or not that misconduct constitutes plain error. In this case, there were two different categories of claimed misconduct, one commenting on the credibility of witnesses, and the second was making inflammatory statements. I'm going to start with the argument on the inflammatory statements. The first inflammatory statement that the prosecutors made, both in opening and closing, is essentially that "Mr. Wilson went on a 6 1/2 mile path of destruction". The reason that this was claimed to be inflammatory is because it oversold what actually happened. There's no doubt that there was actually some damage in this case. The first would be at where the burglaries occurred, and there was a gate broken. The second, Mr. Wilson's truck caught on fire. <Malone> You could make a movie, out of this. <Kerlz> You could, you could! It had a very "Dukes of Hazzard" feeling to it, as I was reading it. His truck caught on fire, so he got out, and he ended up stealing one of the deputy's vehicles. The deputy said he hit him as he was driving away. So, that would be a second damage that occured. And, the third damage was when he was trying to avoid the stop sticks, and he rolled that Suburban, and of course, damaged it. <Malone> And that's "not a six and one-half mile path of destruction"? <Malone> Well, it may, the entire incident may have taken place over 6 1/2 miles, but to say "It's a 6 1/2 mile path of destruction" seems to indicate that it is more like a movie, where there is destruction through that entire 6 1/2 miles, rather than three somewhat isolated incidences, in which damaged occured. It's giving it more of a Bruce Willis-type feel of constant destruction, as opposed to three instances, which would be inflammatory against Mr. Wilson's case. <Hill> A tornado couldn't make a swath of - <Kerlz> Exactly. Exactly. <Hill> But, this man, being in a car, could only do a little bit. <Kerlz> Yes, he did cause damage, there's no denying that he caused damage. But, the argument is that the prosecutors were trying to inflame the prejudices and passions of the jury, by calling it "a 6 and 1/2 mile path of destruction". when in reality there were three points in which damage actually occured, even if those three points were spread out over 6 1/2 miles. The second inflammatory statement that was alleged, was when the prosecutor - I'm getting this from the brief, to make sure I get it right - The prosecutor, during closing arguments, stated, "Mr. Wilson knows that if he submits and talks to deputy Colmeer, it's not going to be very long before Justin Colmeer figures out that this guy, with Wyandotte County plates, acting suspiciously in western Johnson County, there's no reason for him to be driving out in the county, with a pickup truck loaded full of stuff, so he bolts." The reason this was claimed to be inflammatory to a Johnson County jury is there's really no other reason to indicate that the truck he was driving had Wyandotte County plates, and was a Wyandotte County resident, unless it was to easily prejudice a Johnson County jury, against the defendant. <Hill> Are you really arguing that the mere mention of the words "Wyandotte County" in Johnson County, is an inflammatory statement? <Kerlz> I will admit, I am from Western Kansas. and this argument would not have occured to me. This brief was written by someone who grew up in Johnson County, so, apparently, the argument occured to him. There is a point, and he makes it in his brief, that there are different demographics between Wyandotte and Johnson Counties. I have enough friends in both counties to recognize that there seems to be some animosity between the two counties at times. What was argued as what was inflammatory is the idea that there would be no legitimate reason from someone from Wyandotte County, one county over, to be in Johnson County, unless it was for some sort of nefarious purpose. It's using that potential Wyandotte County stigma, to make that inference to a Johnson County jury. <Buser> Was the defendant from Wyandotte County? <Kerlz> I don't know for sure whether or not the defendant was from Wyandotte County. The prosecutor did seem to imply that he was from Wyandotte County, because he was driving in Johnson County in a truck, with Wyandotte County plates. <Buser> Other than the prosecutor slandering the good people of Wyandotte County, I mean, I think, for your argument, it is especially important, if the defendant was from Wyandotte County, because then, you might be prejudiced. <Kerlz> Right. I don't know for sure whether or not he was. I would honestly have to re-look at the record to see whether or not he was from Wyandotte County. <Buser> He was driving a truck with Wyandotte County plates? <Kerlz> He was driving a truck with Wyandotte County plates, and the county those places were from had no other reason to be brought up, other than to potentially prejudice a Johnson County jury, against a Wyandotte County defendant. Now, moving on to the commenting on the credibility of the witness. There were two related instances, which were brought up as improper, and one was when the prosecutor, in his closing - let me provide some context - During its case in chief, the defense called an expert to testify about potential muzzle placement, when Deputy Rocasek fired his weapon at Mr. Wilson, as he was driving away, to try to figure out where he was, to support Mr. Wilson's assertion that he never actually hit that Deputy. The Prosecution called a rebuttal witness, afterwards. In his closing argument, the Prosecutor referred to the defense expert, Mr. Geetson, as "Mr. I can't even remember going and seeing that gigantic Suburban about a year ago, traveling from Springfield, to Johnson County, to see it", and then went on, to talk about the state's expert as the "real" expert. it was argued that this was commenting on the credibility of the witness, improperly commenting on the credibility of the witness, because it is up to the jury to determine which of the experts to believe. It's up to the jury to determine which expert is credible, and which expert is not credible, <Malone> The witness couldn't even remember if he had examined his truck. Is counsel not allowed to comment on that, or maybe even practically, make light of that? <Kerlz> I do believe that - I think it's the combination of the two together. I don't think standing alone, him commenting on the fact that this expert couldn't remember examining the Suburban would rise to the level of prosecutorial misconduct. It's after that, stating that their expert was the "real" expert, which was then implying that the state's opinion that the state's expert was the only credible expert. It's giving the state's opinion on the credibility of the witness, which would be what was improper. <Buser> It doesn't have to be credibility. it can be that the other expert is inexperienced, he doesn't have good qualifications, All that stuff is the grist of what you do, in a trial. <Kerlz> I will admit that I think the inflammatory comments is probably the stronger of the two prosecutorial misconduct arguments. But, we would argue that - I would agree that there's nothing wrong with pointing out the weaknesses in the defense expert, and the defense expert's testimony. What the argument is is that using the terms "the real expert" in referring to the state's expert, is expressing an opinion that that expert is the only credible expert, when it is up to the jury to determine the credibility of the witnesses. If this court finds that there was misconduct, then we'd move on to the plain error analysis, and there are three sub-parts to that analysis: Ill will, whether or not it was gross and flagrant, and whether or not there was no reasonable possibility that it contributed to the verdict. In determining whether or not it was gross and flagrant, there are different things you can look at. One of those things is determining whether or not it violated a long-standing rule of prosecutorial conduct. In both instances, making comments to inflame the passions or prejudice of a jury, and commenting on the credibility of witnesses are both long-standing instances of prosecutorial misconduct in the state of Kansas. The fact that both were done would indicate, at least support the argument, that the prosecutors' statements in this case were gross and flagrant. As to ill will, one of the things to determine is whether or not it was repeated, whether or not seem to be simply a slip of the tongue, something that was said by mistake. First of all, "the six and a half mile path of destruction", that was in both opening and closing, so it was something clearly planned, because the opening and closing arguments were given by two different attorneys. It seemed to be a theme for the Prosecution, so it clearly wasn't an inadvertent statement. As to the statement, regarding the statement about the credibility of the witnesses, it's really hard to imagine the tongue twister that they use to call Mr. Geetson, the Mister... Yeah, that! - that could have been an inadvertent slip of the tongue. It's difficult to say, even when I'm reading it. <Malone> You're going into your rebuttal time. <Kerlz> OK. - But, we would argue, that the repeated nature, and the emphasis on these comments, particularly the inflammatory statements, indicate that there was not a lack of ill will. And finally, the main two charges that were contested were the aggravated battery, and the aggravated assault. For those two charges, the credibility of Mr. Geetson, and the credibility of Mr. Wilson, were of utmost importance. And, the claimed instances of prosecutorial misconduct would have directly attacked the credibility of both of those witnesses. One, in implying that Mr. Geetson wasn't a "real" expert, and the other in seeming to imply that because he was a Wyandotte County resident, he may not have as much credibility, and that he caused more destruction than he actually did. So, we would argue that there was prosecutorial misconduct and it does require reversal. <No audio> <Minihan> May it please the court. Shawn Minihan, Assistant District Attorney, with the Johnson County District Attorney's Office. for the state. I'll stick to the prosecutorial misconduct issue. I just checked on my brief, and I still cited that prosecutors are given wide latitude in making arguments in a case. I still think that's the law, today. And, when you look at a prosecutorial misconduct issue, I think that you kind of view it through two eyes: One, through the prosecutor, through the prosecutor's eyes, when he says it. What was his intent, or her intent, in making the statement? The other way you should view prosecutorial misconduct issues is through the jury's eyes. What would have the jury perceived, had they received this information, had they heard this information? I think it is pretty clear, in all of these instances, that a jury would look at these arguments and say, "The prosecutor was arguing the facts in this case." They were arguing why the evidence was on the state's side, and not on the defense's side, and, in the context of that, they make these statements. So, I think that a jury, and the prosecutor's intent, and what the jury would view is pretty obvious. They would view it as argument on the evidence, not the personal opinion of the prosecutor. For instance, the first statement that's in their brief is "Mr. I can't even remember going and seeing that gigantic Suburban, about a year ago, traveling from Springfield to Johnson County, Kansas, to see it", which he didn't. That's factually correct. The defense attorney is the one that presented this evidence that eliceted this evidence from their own expert, that he didn't remember coming to Kansas City - to Johnson County, to view this evidence. But, he said this in the context of showing that the defense expert wasn't credible. So, he says, in this same paragraph, which I cited in my brief, "How much credibility should you give a man who was so ill prepared, that he didn't remember that he traveled to Johnson county from Springfield, to see that vehicle?" A ittle bit later on, you get to decide how much credibility you should give someone who would not even acknowledge that wind, or a sloped roadway would affect where a cartridge casing might land on the roadway." <Buser> Was the jury given an instruction at the end of the trial, about the credibility to be given, if any, to expert witnesses? Happen to know? <Minihan> I don't know, but it's pretty standard that the get that arguments are just -that-, and, if there's any argument that doesn't support the evidence presented, then you disregard it. That is prettty typical, but I didn't, for some reason, bring my notes on the case. I missed it. The second argument: Jason Butell, who is the state's expert, a real expert, told you about that, so all of his shiny stuff should not distract you from the physical evidence. <Hill> Now.. A "real" \expert. That's not a personal opinion, is it? <Minihan> I don't think it's a personal opinion. I think - <Hill> "We got the defense expert, then we got our expert, the real expert." That's not vouching for him, is it? <Minihan> No, I don't think that's what it's taken, but if you see it in the context of the argument... <Hill> I thought I just did. There's their "Mr. Who Can't even remeber coming to Johnson County all the way from Springfield, to see a Surburan that had rolled over", then "our expert, the real expert". That isn't a personal comment? <Minihan> No, I don't think so. He is the one expert, that actually took out Rochipsik's gun, did tests on it, fired it, and determined whether there's an ejection pattern analysis in this case. That's not something the defense expert did. I think that that's a fair comment,that he says he's basically showing, making a statement within the context of that, showing that the State's expert was the one that did the tests, not the defense expert. The third statement was about the "six and a half mile path of destruction". The prosecutor doesn't have wide discretion to make that argument. The defense concedes that he destroyed things on the property from which he stole items. He destroyed the vehicle that - It wasn't presented at trial, in fact - but I think it's in the record that the truck he was driving was stolen. They presented evidence that he destroyed that vehicle, and presented evidence that he totally destroyed Rocasek's Suburban. That's pretty good evidence that he went on a basically a chase, and destruction of 6 1/2 miles. And, the final statement, read as a whole, and I'll just point out a few sentences in this whole paragraph, that I set out in my argument, or, in my brief. What we're starting, as this case - what we're saying, I think, as this case moves its way along, is an old saying: "actions speak louder than words". His action, every action that he took was trying to get him out of the hot water of his own making. He seized Deputy Kohlmeier, he knows he's gota truck bed, chock full of freshly stolen stuff, Wilson knows that if he submits, and talks to Deputy Kohlmeier, it's not going to be long before Justin Kohlmeier figures out this guy with Wyandotte County plates, acting suspiciously in Western Johnson County. There's no reason for him to be driving out in the County, with a pickup truck loaded full of stuff. First of all the defendant knew that he was transporting stolen items in the back of his truck. Second, I guess he wouldn't know that the police officer was there on the scene, responding to a potential burglary, but then, this statement wasn't really about Wyandotte County. This was about the reasoning behind why he fled from the police officers. It's just superfluous. <Buser> Was he from Wyandotte County? <Minihan> I am not sure if it is in the record, but he is from Chicago, which may be more of a - <Buser> There you go. If that isn't prejudiced... <Minihan> That may be more of an attack on his name. So, there's nothing wrong with any of these statements that were made by the prosecutor. They were well within the latitude of a prosecutor to make. Unless this court has any other questions? Thanks. <no audio> The only thing I wanted to do, was answer judge Buser's question. There was a general instruction given for the jury to determine the weight and credibility of each witness, but nothing regarding specifically about experts. Unless there are further questions? <Malone> Thank you, Counsel, very much for your briefs and your arguments, today. That completes this afternoon's hearings. I would just like to take a few minutes here, although we're finished for the afternoon, if there's anybody that has any questions, you can certainly ask. Obviously, we cannot comment about the substance of any of the cases this afternoon, or how we are going to decide any particular issue. But, maybe we can answer questions about the procedure of the case, or if you just have any general questions about how our court works, the Kansas Court of Appeals, or just questions about legal profession in general, if you're considering it. Feel free to ask. I see one hand, there? <Audience member> Is this normal for all three of you guys to be up here? <Malone> Our court always sits in panels of three judges. So, it's not typical for us to come to a community college, like this. We're usually at the local courthouse. But, yes. the Kansas Court of Appeals sits in three-judge panels. <Hill> And, we rotate. Next month, we'll sit with different judges. <Malone> Yes? <Audience Member 2> I know that Missouri has a certification process for world language interpretation. I was wondering if you saw a lot of need for it in Kansas, and if Kansas is going to start such a process? <Hill> I didn't hear the first part of your question. <Audience Member 2> Missouri has a certification process for world language interpretation within the court system. <Buser, Hill> You mean translations? Yeah. <Audience Member 2> Yes, interpretation. I was wondering if you knew if there seems to be a great need for it, in the cases you see? <Hill> Certainly, in Kansas, there's a system for court-certified translations. We have, expecially in Western Kansas, in Garden City, in Dodge City, they have five or six different languages, where they have certified court translators. It's not just translation. You have to understand the court system too, so you can translate it in a meaningful way. Not just words, but "what does this mean"? <Audience Member 2> Kansas has started this- <Hill> Yes, for some time. <Buser> Acutally, you've hit on a really serious issue, with regard to the criminal justice system, because, like in areas of Western Kansas, in Liberal, for example, where you're on the border, there. The problem is that the counties have to provide - we're dealing with typically indigent criminal defendants - so the counties have to foot the tabs for these translators. If you talk to the judges, they'll tell you, out West, that the budget situation is awful, because we have so many people do not have English as a first language, but they have a Constitutional right to understand the proceedings, and that costs money to bring in all those translators. So, that's a real budgetary issue for our court system. <Malone> Any other final questions? Yes? <Audience Member 3> Earlier today, you said that your court heard - how many cases every year? <Malone> We have about 1,800 appeals filed with our court every year. <Audience Member 3> And, you said you argue only 400 [of those cases]? <Malone> No. 1,400 of them typically get to the level of where we issue a full-blown decision. Fourteen hundred, not four hundred. Out of those 1,400 cases that actually make it to a docket like this, I would say about one-third of those are argued, like you just heard today, but the other two-thirds are just what's called "summary docket", in other words, there's no oral argument. Everything else about the case is the same: we read the briefs, conference the case, decide the issues, but we just do not have the opportunity to have the attorneys come, and argue the case before us. <Hill> They're still important cases, especially to the clients. But, we just don't have oral arguments. <Malone> There's just not enough time in the day, quite frankly, to do that for every case. <Audience Member 4> Can you tell me about how you decide which cases you'll hear as oral arguments? <Malone> That's a judgment call, but we try to look at the complexity of the case, or the uniqueness of the issues. On our court, the Intermediate Court of Appeals in Kansas, we do see a lot of repetitious issues, a lot of issues that come case after case after case. So, if your case has just those types of issues, it's unlikely that it will be set for oral argument. If it's got something unique to it,you're increasing the odds of us setting up for oral argument. The bottom line is, it comes down to a judgment call. Sometimes, we set cases for oral argument that we wish we hadn't have, and vice versa, there's many cases that we don't set for oral argument, but wish later that we had. And, we do allow people to ask for oral argument, if we've put them on the summary docket. So, occasionally, we'll get a motion that says, "Hey, this is on summary docket. We'd like to argue it, and here's why it's important to argue it." We'll consider it. Sometimes, we'll grant those. <Hill> Sometimes, people will also waive oral argument. They decided, even if it's set for oral argument, they don't want to bother. Take care. <No audio> <Malone> We enjoyed our visit, here, today. So, thank you very much for coming to watch. <applause>