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Kansas Supreme Court Selected Opinion Summaries - April 18, 1997

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

The Supreme Court today filed 28 opinions. Today's filings include:

Appeal No. 76,073: The Legislative Coordinating Council v. The Hon. Sheila Frahm, Secretary of the Department of Administration, and Shirley A. Moses, Director of Accounts and Reports

The court, in a unanimous decision authored by Justice Robert E. Davis, holds that the Legislative Coordinating Council (LCC) has no authority or standing to bring a lawsuit while the legislature is in session. The court does not reach the merits of the issue of whether LCC vouchers for court costs and attorney fees incurred in an election contest action should be paid, but cites a statute that authorizes litigation by the legislature while in session and by the LCC when the legislature is not in session. The lawsuit in question was filed by the Revisor of Statutes on behalf the LCC during the 1996 legislative session.

Appeal No. 75,497: Kansas Public Employees Retirement System v. Reimer & Koger Associates Inc. and Gage and Tucker, L.C.

The court in a four-three decision affirms a Shawnee County decision dismissing a cross-claim between two defendants in a lawsuit filed over losses KPERS incurred in its investment losses of $9 million in Sharoff Food Service Inc. and approximately $14.5 million in Tallgrass Technologies. The majority, led by Justice Robert E. Davis Jr., holds that the cross-claim was not filed within the applicable statute of limitations. A dissent by Justice Bob Abbott is joined by Justices Donald L. Allegrucci and Edward Larson.

Appeal No. 76,374: Alvan D. Johnson et al. v. Kansas Public Employees Retirement System and City of Manhattan

Law enforcement officers who believe they were damaged when the Manhattan city police department and the Riley County sheriff's office were combined may not wait 16 years before bringing suit when they knew the effect of the consolidation on the date of the change in their pension plan, January 1, 1974, under a unanimous decision authored for the court by Justice Fred N. Six, reversing Shawnee County District Court.

Appeal No. 77,123: In Re: Tax Appeal of Atchison Cablevision L.P.

Under the plain language of the Kansas Retailers' Sales Tax Act, sales tax is to be levied upon the gross receipts from cable television services, which is based upon the total cost to the consumers of the cable operating, including the franchise fee paid to governing bodies for operating the system. (Unanimous decision authored for the court by Justice Edward Larson, affirming the State Board of Tax Appeals.)

Appeal No. 76,205: State v. Essex T. Sims

The court, in a unanimous decision authored by Justice Edward Larson, affirms the defendant's Sedgwick County convictions of first-degree murder, criminal discharge of a firearm at an occupied building and criminal possession of a firearm, as well as two counts of aggravated battery, all of which arose from his participation in a drive-by shooting.

Appeal No. 75,608: State v. Robert L. Jackson

Noting the state conceded the error during oral arguments, the court in a unanimous decision authored by Justice Tyler C. Lockett, vacates the Jackson's sentence for one count of aggravated battery, but affirms all other convictions and sentences imposed against Jackson for a series of felonies, including two counts of first-degree murder and one count of voluntary manslaughter, which arose from the early morning shooting spree at a former Topeka nightclub called Shanghai Lil's.

Appeal No. 77,071: In Re: Estate of Morris P. Van Der Veen and Deanne M. Van Der Veen

The court, in a unanimous decision authored by Justice Donald L. Allegrucci, rules that the biological grandchild of a Topeka couple who were slain by their son, the child's natural father, may inherit one-half of the grandparents' estate, even though the father is disqualified from inheriting by virtue of his acts in slaying the Van Der Veens.

Appeal No. 78,058: In Re: Ervin E. Grant

A majority of the court imposes published censure against an El Dorado attorney for his actions in an estate proceeding. Justice Fred N. Six, in a dissenting opinion, would have imposed a six-month suspension of Grant's law license, and Justice Bob Abbott would have imposed indefinite suspension.

Appeal No. 76,336: State v. Gregory E. Ware

The court, in a unanimous decision authored by Chief Justice Kay McFarland, dismisses an appeal by Ware for lack of jurisdiction. Ware attempted to appeal his consecutive sentences of life and 49 months for felony murder and aggravated robbery, which arose from the 1994 murder of his 80-year-old landlady.

Appeal No. 74,774: State v. David A. Moncla

The court, in a unanimous decision authored by Justice Robert E. Davis, affirms the defendant's Sedgwick County first-degree murder conviction and his resulting hard-40 sentence, which arose from the death of Diane Swinney, a Wichita bar owner.

Appeal No. 74,725: State v. Michael D. Ninci

The court, in a unanimous decision authored by Justice Bob Abbott, affirms the defendant's Wyandotte County convictions of felony murder, robbery, and aggravated burglary, which arose from the September 1992 death of Michael Owen, who was killed at his Leawood home.

See also the summary for Appeal No. 75,381: State v. Cheek

Being held over for decision later are:

Appeal No. 73,410: In Re: Betts
Appeal No. 77,684: City of Wichita v. Meyer & R.E.M.
Appeal No. 74,666: Friday v. Trinity Universal of Kansas
Appeal No. 76,184: In Re: Cherokee County
Appeal No. 76,183: Reiter v. City of Beloit
Appeal No. 75,186: State v. Isley
Appeal No. 76,524: KPERS v. Reimer and Koger et al.
Appeal No. 76,713: Grinstad Products v. KS. Corporation Comm.
Appeal No. 77,450: Flint Hills Rural Electric v. Fed. Rural Elec.
Appeal No. 72,257: State v. Orr