quarterly by the johnson county bar association volume 23

Published Quarterly by the

Johnson County Bar Association

Volume 23Number 2

June 2009

BarLetter Committee and Writing Staff

G. Gordon Atcheson (Co-Editor)Scott Gyllenborg (Co-Editor)

Karen Arnold-BurgerLinda CoffeeJeffrey Deines

Andrew HennierChristian Kelly

Leo LoganLori Maher

Claire McCurdyJohn Pickett

Christopher M. Reecht

- Articles are Welcome -Please send to Linda Coffee

[email protected]

3 the BarLetter • June 2009

the BarLetter, the official pub-lication of the Johnson County Bar Association, covers legal news and issues of interest to members. Articles are intended to generate ideas readers can apply to their own practice. the BarLetter is published quarterly and distributed to approximately 2,000 attorneys, judges, and legal professionals in Johnson County and the surrounding county area. Deadline for submission of ar-ticles and advertising is the 10th day of the following months: March, June, September and De-cember. The publication of any advertisement or product infor-mation is not to be construed as an endorsement of the product or service offered unless the ad spe-cifically states that there is such an endorsement or approval. the BarLetter is a non-partisan pub-lication intended to inform our members, provide services to our members, and give members an opportunity to contribute to the association. Statements or ex-pressions of opinions are those of the authors and do not necessar-ily represent those of the Johnson County Bar Association.

In This Issue

President’s Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 By-Law Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2009-2010 Slate of Officers & Directors . . . . . . . . . . 5

New Look for JCBA . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Build a New Courthouse Now! . . . . . . . . . . . . . . . . . . 7

Appellate Cases of Interest . . . . . . . . . . . . . . . . . . . . 8

Real Estate Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Address Changes . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Layne Project . . . . . . . . . . . . . . . . . . . . . . . . . . 14

New Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Bulletin Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Step Back In Time . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Court News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

KWAA Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . 20

Classified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Upcoming Bar Luncheons

June 3, 2009, 11:45 a .m ., Ritz Charles, 9000 W . 137th Street

Program: Legislative Update by Senator John Vratil

September 2, 2009, 11:45 a .m ., Ritz Charles, 9000 W . 137th Street

October 7, 2009, 11:45 a .m ., Ritz Charles, 9000 W . 137th Street

November 4, 2009, 11:45 a .m ., Ritz Charles, 9000 W . 137th Street

December 2, 2009, 11:45 a .m ., Ritz Charles, 9000 W . 137th Street

BarLetter Committee and Writing Staff

G. Gordon Atcheson (Co-Editor)Scott Gyllenborg (Co-Editor)

Karen Arnold-BurgerLinda CoffeeJeffrey Deines

Andrew HennierChristian Kelly

Leo LoganLori Maher

Claire McCurdyJohn Pickett

Christopher M. Reecht

- Articles are Welcome -Please send to Linda Coffee

[email protected]


President’s PageThank You, Good NightBy Christopher M. Reecht, 2008-2009 JCBA President

The last year has flown by and with it so has my opportunity to serve as President of the Johnson County Bar Association. During my time as President, I have had the unique op-portunity to protect the foundation and principles of our Association and serve as its figurehead. Through my position I had the chance to be a part of an election/voting process wherein we were able to defeat an attempt to elect our judges and move

away from the merit system. It gave me an entirely new per-spective into our political process. My position allowed me a chance to work with the board to create and fund a more user friendly website for our Association. My position also provid-ed me the opportunity to deliver the keynote address to nearly eighty newly naturalized citizens. A rewarding experience to simply view much less be intimately involved in. And most importantly, I was able to continue running the day-to-day ac-tivities of our Association that those before me so adeptly put into place.

For my last article in the Barletter I wanted to say “thank you” to several people that have assisted me throughout my time serving in the Johnson County Bar Association.

Greg Musil, Hon. Janice Russell, and others on the cam-paign – Thank you for all of your hard work and dedication in the campaign to Keep Politic$ Out of Our Court$. Without you, the foundation of our court system would be clouded by those who would attempt to inject politics where none should be.

Our Board Members – When I began looking to fill the Board of Directors for my term, I wanted to have a true mix of attorneys…new and seasoned, male and female, public and pri-vate sector, big and small firm. I think I was able to accomplish that feat and in its wake brought some new fresh perspectives to issues that tend to arise each year. Thank you to each of you for your year of service on the Board.

Past Presidents – I first became a part of the Board of Di-rectors through my role as Young Lawyers Section President. In that capacity I tried to come up with some new ideas to get younger attorneys involved in our association. Yes, the happy hours continued but we also volunteered our time to mock in-terviews at the University of Kansas and hosted an event at the Music Hall. I moved from YLS President to Vice President and then President Elect. During these positions, I learned from Scott Gyllenborg and Jean Wise how to run an effective meet-ing, how to communicate with others in the role as President, and the importance of continuing our Association’s tradition of excellence. Thank you for all of your advice and encourage-ment.

Christine Graham – As the next President, the Association will be in great and capable hands. Christine has been a voice of reason on our current Board. She has done a magnificent job getting the members to think before they act. Where I would charge right ahead, Christine has been able to rein me back and consider all of the options and possible outcomes of our deci-sions. Our association will be better for the leadership skills she will bring.

Lori Maher – Besides being our Association’s CLE Direc-tor, Lori has taken over the role of making sure our Barletter gets completed. She has been invaluable in assisting me with drafting the President’s Page articles and acting as a sounding board for some of the crazy ideas I came up with through the years.

Linda Coffee – Although she will be the last to admit it, she is the reason this Association stays together. She has been ev-ery President’s right hand before me and will continue to be the same in the future. She has been my own personal tour guide and travel buddy during the national conferences we attended, a calendaring and reminder system for every deadline I needed to make, and the party planner extraordinaire for our golf tour-naments, happy hours, fundraisers and luncheons. She made what initially seemed like an impossible task, easy.

Thank you to each and every person I haven’t mentioned in this article who made my year as President something I will always remember.

2009 ABA Mid-Year Meeting, Boston, MA

2008 Golf Committee

the BarLetter • June 2009 5

By-Law AmendmentBy Christine Graham

The following proposed By-Law Amendment from Article V, 3 (b) will be presented for vote at the June 3, 2009 meet-ing of the Johnson County Bar Association (proposed amend-ment is in BOLD):

(b) President-Elect, Vice-President, Secretary/Trea-surer, Elected Directors. Nomination for each position shall be by petition signed by fifteen (15) members of the Association who are eligible to vote. Such peti-tion shall be submitted to the Board of Directors on or before April 1. In the event there are no contested positions, election shall be by show of hands at the June meeting of the Association and no ballots will be mailed to the membership. If even one position is contested, the vote shall be by secret, written bal-lot. A ballot shall be mailed to each member of the Association on or before April 15 of each year, along with the report from the Nominating Committee in-cluding the name of each candidate, position sought, and a brief biography of each candidate, not to exceed 100 words. Returned ballots must be received in the office of the Association on or before May 15 in order to be counted. The candidate receiving the most votes for each position will be deemed elected. In the event of a tie, a vote between the tying candidates shall be taken by secret, written ballot at the June meeting of the Association.

JCBANominating Committee

Announces 2009-2010 Slate of Officers & DirectorsThe JCBA Nominating Committee, chaired by the President, Christopher Reecht, selected the following slate of officers and directors for 2009-2010.

President - Christine GrahamPresident-Elect - Roger StantonVice-President - Jason McClaskySecretary/Treasurer - Leonard HallElected Director II - Donald Hymer, Jr. Elected Director III - Keven O’Grady

The following directors will continue to serve in non-expiring terms in 2009-2010:

Immediate Past President - Christopher ReechtYoung Lawyers Section President - Katie McClaflin10th Judicial District Court Representative - Hon. Thomas SutherlandElected Director I - Timothy McCarthy

Johnson County Law Library Trustee - Kristopher Kuckelman

Check out our

EVENTS CALENDAR

Online atwww.jocobar.org


New Look for the JCBABy Linda Coffee, Executive Director

After many months of planning, de-veloping, designing and redesigning, the new Johnson County Bar Association website has been launched - www.joco-bar.org. Some of the highlights are listed below!

Membership Directory - One of the many features of this site includes a “Members Only” section where you will find a Membership Directory of JCBA members. This Directory will allow you to search for members by name, law firm and specialty. In order to access the “Members Only” section, you will need a username and password. The default username will be your first name and last name (example JohnDoe). If you use an initial for your first name and full name for your middle name you should use the initial and last name (example J.Doe). The password is JOCOBAR. Once logged in, you can view your member-ship profile and make updates or changes (including username and password).

Credit Card Payments - Another feature that has never been offered before is online credit card payments. You will now be able to register and pay online for CLEs, special events and dues renewals.

Vance C. Preman

“The Right MediatorDoes Make A Difference”

Kansas CityMediation & Arbitration

Service (KCMAS)

(816) 756.2323 [email protected]

4330 BelleviewKansas City, MO 64111

Out of Area Call (800) 245.8731(816) 756.3389 (fax)

Certified in Missouri & Kansas

Career Center - The new web site now has a Career Center to advertise legal-related employment opportunities. Any position related to the legal profes-sion can be posted to the Career Center for a fee of $150 for a 30-day posting.

Watch for additional features to be added soon, such as a Lawyer Referral Service!

If you have questions or difficulty nav-igating the new site, please let us know! Also, let us know if there is something you’d like to see added to the site.


Build a New Courthouse Now!By Chief Judge Stephen Tatum

Have you been to the Johnson Coun-ty Courthouse lately? If you have, you know the courthouse is full. Twenty-three judges now occupy the courthouse, and there is no room for new courtrooms. Court Services has been moved out of the building due to space constraints, and ju-rors are now convening for jury service at the County Administration Building across the courthouse square.

Johnson County will continue to grow, the court system’s caseload will grow, and more judges will be needed to sus-tain the growth. The present courthouse cannot accommodate the future growth.

The Johnson County District Court has one judge per 23,000 citizens, while the statewide average is one judge per 12,000 citizens. Johnson County’s case-load per judge compares with Sedgwick County’s (which has 29 judges), but Johnson County has a higher population and is growing much faster.

Two studies commissioned by John-son County since 2002 have concluded that a new courthouse is needed to ac-commodate current needs as well as future growth. Concerns listed by the studies included inadequate courtroom space, public safety issues, poor and un-safe prisoner transportation in and out of

courtrooms, poor organization of hall-ways and court space, inadequate space for attorneys and their clients to meet, and inadequate space for jurors to con-vene.

A similarly situated community is Mecklenburg County, North Caroli-na. That community experienced rapid growth from the 1990’s through 2000, which created problems for its court sys-tem. Courts Today magazine for Octo-ber/November 2008 reported:

“Mecklenburg County’s judicial sys-tem struggled to keep up by expanding its court system piece by piece, as needed. As a result, its 27 courtrooms and clerk’s office were spread over three buildings with a fourth building serving as small claims court and D.A.’s office”.

“Shortage of space limited the number of courts we could run,” notes Todd Nuc-cio, Trial Court Administrator. “Offices weren’t logically co-located, and the public had to navigate what was basically a maze.”

The need to tighten security over the years also caused logjams at entry points. Huge lines that stretched outside court-house entrances were common during peak court hours. Also at issue was the risky practice of permitting criminal de-

fendants to share public corridors with judges, staff and the public.

Does this sound familiar? Isn’t this in large part the current situation at the Johnson County Courthouse?

The answer? Mecklenburg County built a new courthouse with additional space to accommodate 39 courtrooms for now and the future. The result? A beautiful new courthouse that is efficient and practical, and serves the needs of the citizens of Mecklenburg County.

Johnson County can start its own eco-nomic stimulus project: a new county courthouse. The construction of a $229 million courthouse with enough room to grow would create 2,750 jobs and provide approximately $85 million in household earnings for Johnson Countians.

We have three courtrooms in the cur-rent courthouse that fully represent the dignity and respect for law that citizens should feel when they come to court. The other courtrooms range from “adequate” to awful.” What do our citizens think when they come to our courthouse?

I am hopeful that Johnson County will decide soon to get started with land acquisition. It is time. We need a new Johnson County Courthouse now.


Appellate Cases of InterestBy Leo L. Logan, Coates & Logan, LLC

APPELLATE (Continued on page 9)

I. COUNTRY CLUB LAW: “TOO MUCH TIME ON YOUR HANDS”:

Mr. Pollock sued the Crestview Coun-try Club Association (Crestview) after he was expelled from membership in the club because of his loud and offensive language while in the Men's Grill. The Sedgwick County district judge granted summary judgment to Crestview and the Kansas Court of Appeals affirmed.

Pollock joined Crestview in the early 1980's. He received written censures in 1992 and 1995 for loud and offensive language. On each occasion, Pollock was warned that such behavior could re-sult in expulsion from the club. As set forth in Pollock's pleading, he was in the Men’s' Grill at Crestview seated at a ta-ble by himself having a cocktail. When another member walked into the Men’s' Grill, Pollock called the other member “a condescending asshole.” A complaint about Pollock's conduct was filed by one of the members present.

Pollock first contended Crestview vi-olated his substantive due process rights to "protection from arbitrary action." However, as the court noted, "Embedded in our Fourteenth Amendment jurispru-dence is a dichotomy between state ac-tion, which is subject to scrutiny under the Amendment's Due Process Clause, and private conduct, against which the Amendment affords no shield, no mat-ter how unfair that conduct may be." As Pollock failed to show any state action which caused his expulsion, constitution-al due process protections were not impli-cated. Although the district court found that Pollock was afforded due process, in context this meant the process due to Pol-lock under the terms of the contract with Crestview.

Pollock also claimed breach of con-tract, and in his contract claim, he con-tended Crestview failed to comply with its rules, regulations, and bylaws during the disciplinary process.

The relationship between a social club and its members is one of contract. The rules, regulations, and bylaws of social clubs generally establish the terms of such contracts. The "bylaws, and rules of private organizations create a legally enforceable agreement in the nature of a contract between the organization and the member because of corresponding mutual obligations–by the member to

follow the rules of the organization, and by the organization to fairly apply those rules." (Quoting King v. Grand Chapter of Rhode Island, 919 A.2d 991, 998 (R. I. 2007).

Courts generally defer to social clubs on questions of whether a member exhib-its appropriate conduct at the club. Courts will not interfere and take jurisdiction of cases involving the disciplining, suspen-sion or expulsion of members of a private social club, organized as a nonprofit cor-poration, where it appears that disciplin-ary proceedings are in substantial com-pliance with the bylaws of the club, and such bylaws are reasonable, consistent with the charter of the organization, and not in violation of fundamental concepts of due process of law.

Pollock also disputed the severity of his behavior, contending his remark was acceptable conduct in the Men's Grill at Crestview. Thus, the only issue framed for the courts was "whether the estab-lished code of conduct of the Club should be replaced by [the plaintiff's] own code of conduct."

The club board notified Pollock of the specific accusation made against him and the particular rule or regulation he alleg-edly violated. Pollock was informed that an investigation was underway to deter-mine if his conduct merited discipline, which could include a warning, suspen-sion, or expulsion from Crestview. Pol-lock and his counsel were afforded the opportunity to present Pollock's version of the incident, and defend against the al-legation. Indeed, the fairness exhibited in the disciplinary process was noted by Pollock in his deposition when he was asked if there was "anything else that you, through your lawyer, asked Crest-view to do in the investigation that they didn't do?” Pollock responded: "Not that I'm aware of at this time."

The record reflects that Crestview conducted the disciplinary proceedings in substantial compliance with the by-laws, rules, and regulations of the club.

Pollock v. Crestview Country Club Ass’n, No. 99,941, Kansas Court of Appeals, Opinion filed May 1, 2009.

II. COMPARATIVE IMPLIED INDEMNITY:

A truck owned by Dodge City Imple-ment Inc. (“DCI”) was struck by a BNSF

freight train at the Rattlesnake Trail rail-road grade crossing in Barber County. The collision caused extensive damage to DCI’s truck and the derailment of BNSF's train. It was claimed that a contributing cause of this collision was the failure to appropriately maintain railroad crossing signage. Barber County assumed the sole responsibility to maintain the traffic con-trol devices placed on roadways under its jurisdiction. BNSF filed suit in federal court against DCI and DCI’s employee driver. DCI and its employee settled with the BNSF, and expressly reserved any right they had "to make a claim against or sue Barber County, Kansas, and/or any person or entity, other than [BNSF] . . . for comparative implied indemnity and any other cause of action that may exist under Kansas law."

DCI and its employee pursued this state court suit against defendants Bar-ber County (County) and Moore Town-ship (Township) under negligence and comparative implied indemnity theories because of an alleged failure to construct and maintain a safe grade crossing.

Defendants' motion to dismiss plain-tiffs' comparative implied indemnity was sustained on the basis that those defen-dants were not named defendants, or joined pursuant to K.S.A. 60-258a(c), in the previous related federal lawsuit brought by BNSF, and it would be un-fair to those defendants to subject them to allegations of fault now that were not asserted in the federal case. (“Single ac-tion rule.”)

The Kansas Supreme Court held that defendants seeking to minimize their li-ability in comparative fault situations not involving a chain of distribution or simi-lar commercial relationship should do so by comparing the fault of other defen-dants in order to reduce their own share of liability and damages. If a defendant chooses to settle and obtain release of common liabilities involving other par-ties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or post-settlement contribution. This holding recognizes that under Kansas compara-tive fault procedure such a remedy is not necessary, and further recognizes that such an action defeats the policy of ju-dicial economy, multiplying the proceed-ings from a single accident or injury.


APPELLATE (Continued from page 8)

Here, BNSF sued DCI but did not sue Moore Township or Barber County; DCI settled with BNSF; BNSF gave a full release of claims in the settlement agreement; and DCI now seeks to re-cover from Moore Township and Barber County, alleging those parties caused all or part of BNSF's injuries. Under these circumstances, we hold the district court properly dismissed DCI's claim for com-parative implied indemnity.

In short, the one-action rule of Alb-ertson is alive and well in Kansas. The fact that DCI chose to settle BNSF's claim did not entitle them to status as a clearinghouse for comparison of fault among potential tortfeasors. They were not entitled to bring a second action against the County and the Township, when the County and the Township had no involvement in the federal case.

Dodge City Implement, Inc. v. Bd. Co. Commissioners of Barber County, No. 96,784, Kansas Supreme Court, Opinion filed April 24, 2009.

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REAL ESTATE(Continued on page 11)

Two Lawyers and A Real Estate Agent Walk into the Bar...Current Topics in Real EstateBy Christian J. Kelly and Claire K. McCurdy

Several years ago, both the Kansas Real Estate Commission (KREC) and the Missouri Real Estate Commission (MREC), passed regulations allowing real estate licensees to form corporate entities for the purpose of receiving the licensee’s real estate compensation and commissions paid by the brokerage com-pany. Within the real estate industry, a licensee must be affiliated with a broker and the licensee may only receive com-pensation earned in connection with the performance of real estate services from their respective broker. As with many small business owners, licensees learned of the possible tax and liability benefits by forming corporate entities in connec-tion with their real estate business.

In many instances, these licensees properly sought the guidance of attor-neys and tax professionals in determin-ing which type of entity to form and as-sistance with the actual formation and registration of the company in Kansas and Missouri. When assisting licens-ees with these endeavors, please keep in mind that, in addition to the applicable corporate statutes and tax regulations, each State also has specific real estate statutes and rules directly impacting which corporate entities are permissible. As you might expect and possibly have already guessed, the rules in Kansas and Missouri are very different. This poses a unique challenge for licensees, since most operating in the Kansas City Metro-politan area conduct real estate business on both sides of the state line.

The KREC regulations in Kansas per-mit a licensee to form a variety of cor-porate entities. These entities are strictly a mechanism for receiving the licensee’s real estate compensation and commis-sions and do not operate as a vehicle from which the licensee conducts his or her real estate business. This is demon-strated by the fact that in Kansas, the real estate license remains titled in the indi-vidual name of the licensee, even after the formation of a corporate entity since the concluding statement in K.S.A. 58-3062(b)(1)(B)(iv) reads “This provision shall not alter any other provisions of this act.” In other words, the licensee will re-main individually responsible for his or her fiduciary duties and other obligations imposed by KREC rules and regulations,

regardless of the fact that a corporate en-tity receives the licensee’s compensation. Accordingly, tax considerations should be the focus when a licensee evaluates the benefits of organizing a corporate en-tity.

Pursuant to K.S.A. 58-3062(b)(1)(B)(i)-(iv), a licensee may form a profes-sional corporation, a general corporation, a limited liability company or a limited liability partnership. Upon formation, “the commission or other valuable con-sideration may be paid by the licensee's broker to such professional corporation, corporation, limited liability company or limited liability partnership.” (See 58-3062(b)(1)(B)(iv)). While a variety of entities are permissible under KREC regulations, there is an important limita-tion. The rule cites to specific provisions within Kansas’ corporate code, namely: K.S.A. 17-2706 (professional corpora-tions); K.S.A. 17-6001 (general corpora-tions); K.S.A. 17-7662 (limited liability companies; and K.S.A. 56a-101 (limited liability partnerships). The rule does not however, incorporate or refer to the cor-porate provisions authorizing the regis-tration of foreign entities. Therefore, a licensee has the selection of many cor-porate entities; however, any such entity under this rule would need to be formed in the State of Kansas.

The MREC also permits Missouri li-censees to form a corporate entity in or-der to permit the licensee’s broker to pay the entity, rather than the licensee indi-vidually. These rules are set forth at 4 CSR 250-4.075 and 4 CSR 250-4.080 of the Department of Insurance, Financial Institutions and Professional Registra-tion. While KREC permits a licensee to select from a variety of entities, the only corporate entity recognized by Missouri for licensees is a Professional Corpora-tion. Subsection (4) of 4 CSR 250-4.075 requires the name of the PC include the actual name of the licensee and be fol-lowed by either “P.C.” or “Professional Corporation.” Accordingly, no fictitious or trade names are permitted by the li-censee.

Despite this limitation, the MREC per-mits licensees to form their Professional Corporation in Missouri or any other State. 4 CSR 250-4.080(5) allows the registration of a Professional Corpora-

tion formed in another State (for example Kansas) as a foreign corporate entity. In order to do so, the licensee must provide evidence that the Professional Corpora-tion is active and in good standing with the State of formation and that the ap-propriate documents registering the Pro-fessional Corporation to do business in Missouri have been filed with the Secre-tary of State. Unlike Kansas, after these procedural steps, the MREC reissues and titles the licensee’s Missouri real estate license in the name of the Professional Corporation.

When advising clients that are licens-ees in both Kansas and Missouri, and therefore, subject to both the KREC and MREC rules and regulations, careful consideration of these provisions is nec-essary in order to properly form a corpo-rate entity that fits the licensee’s particu-lar real estate practice in either State. If a licensee desired to form one entity that was proper in both Kansas and Missouri, a comparison of the KREC and MREC rules suggests a Professional Corpora-tion, formed in the State of Kansas and then subsequently registered as a foreign corporate entity in the State of Missouri would meet the criteria of both the KREC and MREC.

New Kansas Home Inspector Registration Requirements

Beginning January 1, 2010 home in-spectors performing home inspections for a fee in the State of Kansas must be registered with the Kansas Home Inspec-tors Registration Board. Legislation originally passed during the 2008 Kansas legislative session was amended during the 2009 session, including the effec-tive date of the act’s requirements (See K.S.A. 58-4502, et. seq.).

Home inspections have become an integral part of the home buying pro-cess. Home buyers want a professional opinion about the condition of the home they are purchasing prior to closing, and frequently use the resulting inspection report to renegotiate certain terms of the purchase contract. In Kansas there have been no statutory requirements govern-ing the actions of home inspectors doing


REAL ESTATE (Continued from page 10)

business in the State or a mandate setting forth the minimum qualifications to per-form such activities. Home inspectors do have a number of professional associa-tions to which they may belong (e.g., the American Society of Home Inspectors (ASHI)), but there has been no minimum level of competency or code of ethics to which home inspectors were required to adhere. Consequently, there has been no way for consumers to determine if the in-spector they are hiring is actually quali-fied to perform this very important part of the home buying process. At this time 34 other states have already passed laws to regulate the home inspection industry. In Missouri no such legislation has been enacted, although there is a move afoot to consider a similar law.

Home inspectors will now be regulat-ed by a board made up of five members appointed by the governor, one member from each congressional district. Three members must be home inspectors, and two are at large members. The board is charged with administering the act, which includes setting registration require-ments, enforcing minimum standards of practice and developing a code of ethics, authorizing continuing education provid-ers, and setting fees and penalties. The act also requires home inspectors to con-duct their inspections “with the degree of care that a reasonably prudent home in-spector would exercise under the circum-stances,” and a minimum limit for errors and omissions insurance of $2000 (See K.S.A. 58-4512).

K.S.A. 58-4506 establishes the threshold requirements for home inspec-tors. Every registrant must be at least 18 years old and have attained at least a high school level of education. In addi-tion, home inspectors must carry at least $100,000 of general liability insurance coverage and proof of financial respon-sibility (e.g., errors and omissions insur-ance). Home inspectors must also com-plete an 80 hour course and pass an exam to become registered, although those who have been in business for at least two years and have performed at least 50 inspections are exempt from this require-ment. Notably, home inspectors will be required to complete 16 hours of con-tinuing education each year, more than lawyers or real estate agents. There is a long list of exceptions from registration for those who may perform inspection-like tasks in the course of their employ-ment – contractors, state and local codes

inspectors, architects, engineers and real estate agents to name a few.

In addition to these requirements, the new law also sets “fitness of character” type requirements for registrants under the act, as well as those who become sub-ject to discipline once registered. Those who have been convicted, pled guilty, or entered a plea of nolo contendere to a fel-ony may not become registered, although there are certain exceptions depending on the offense and the proximity in time be-tween the offense and the application for registration. Similarly, those who have been convicted, pled guilty, or entered a plea of nolo contendere to a misdemean-or must also overcome certain hurdles in order to become registered.

These same issues, as well as viola-tions of the act committed in the course of conducting their home inspection business, can subject home inspectors to disciplinary action that may include sus-pension or revocation of their registration (See K.S.A. 58-4505). All proceedings, whether addressing initial registration or disciplinary action once registered, are conducted pursuant to the Kansas Ad-ministrative Procedures Act.

One of the most significant changes the act imposes on the home inspection industry is the prohibition of home in-spectors limiting their liability for neg-ligent conduct to the cost of the home inspection, typically in the neighborhood of $350 in the Kansas City metropolitan area. The new provisions of the act pro-vide that home inspectors may not limit their liability for errors and omissions to an amount less than $2000 (See K.S.A. 58-4512).

Both practitioners who represent ap-plicants for registration or home inspec-tors subject to disciplinary action under this new law, as well as those who repre-sent home buyers in post-closing disputes concerning the condition of the purchased home should familiarize themselves with its provisions. In each instance a stron-ger case will be able to be built based on the statutory framework now provided.

Christian J. Kelly serves as Vice Presi-dent and General Counsel of Reece & Nichols Realtors, a role held since 2007. Christian is responsible for Reece & Nichols’ legal department and oversees operations of Reece & Nichols, Kansas City Title and its other affiliated business-es and services. Prior to his appointment as General Counsel, Christian served as an attorney with the Kansas City law firm of Polsinelli Shugart in its Financial Ser-

vices Department. He may be contacted at [email protected]. Claire McCurdy is a lawyer and has been a sales executive with Reece & Nichols Realtors since 2001. She is for-mer Chairman of the Kansas City Re-gional Association of Realtors (KCRAR) Forms Revision Committee and has taught continuing education courses on contracts for KCRAR. Prior to begin-ning her real estate career Claire was a lawyer in Sprint’s Litigation Department, and before that was Of Counsel at Shook Hardy & Bacon. She may be contacted at [email protected].

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Two Homesteads...Two Exemptions? Maybe NotBy Andrew D. Hennier & Jeffrey A. Deines, Lentz & Clark, PA

Not long ago, we wrote a summary of a recent Kansas Court of Appeals decision, and described the homestead exemption in Kansas as the heavyweight champion of exemptions. The Court in Deutsche Bank v. Rooney, et al., 39 Kan. App. 2d 913, 186 P.3d 820 (2008), spoke to the sanctity of the homestead exemption in Kansas and called it one of the “bedrock prin-ciples in Kansas law.” While this standard remains generally true, bankruptcy attorneys and domestic attorneys in Kansas would be well advised to pay particular attention to two recent Kansas Bankruptcy Court decisions regarding that exemption as it relates to married people who separate prior to filing a bankruptcy. The effect of such separation will have a dramatic effect on their respective abilities to claim a homestead exemp-tion in the two separate properties on which they live.

The question at issue is whether married people who are liv-ing separately can claim each of their respective homesteads as exempt. In 2008, Judge Karlin issued her opinion in In re Hall, 395 B.R. 722 (Bankr. D. Kan. 2008), that separated mar-ried people can each claim a separate homestead exemption. In that case, the Halls jointly owned a piece of property in Centra-lia, Kansas. At some point during the marriage, a court order was issued that forced Mr. Hall from the home. Mr. Hall took up residency in a mobile home on the same tract of land on which the marital home was situated. The Halls did not divorce prior to filing a joint bankruptcy. In the bankruptcy, Mr. Hall claimed the mobile home as his exempt homestead, and Mrs. Hall claimed the marital home as her exempt homestead. Their bankruptcy trustee objected to the exemptions, and the Court was faced with the question of whether each had a separate homestead and, if so, whether they could each make separate exemption claims.

There was much evidence cited in the opinion that Mr. Hall’s residence in the mobile home was permanent and he did not intend to reconcile with Mrs. Hall or move back into the mari-tal home. Such evidence convinced Judge Karlin that Mr. Hall had established the mobile home as his homestead. Having reached that conclusion, the Court opined as to the extent to which they could each claim their separate properties exempt. Generally, homestead exemption claims are liberally construed in the favor of debtors. The Court recognized that principle and stated that, even though the homestead exemption statute does not address this issue specifically, other separate exemp-tion claims are allowed even though the statutes for those exemptions do not spe-cifically provide for two exemptions for married couples. Therefore, the Court al-lowed Mr. and Mrs. Hall to each claim a separate homestead exemption. Having done so, however, the Court did indicate that Mr. Hall could only claim his owner-ship interest in the mobile home exempt, while Mrs. Hall’s ownership interest in the mobile home was not exempt. The same logic also followed for the marital home. Therefore, each party could only exempt his or her one-half interest in each property. The half of each property that remained non-exempt was property of the bankruptcy estate, and was subject to ad-

ministration by the trustee.Earlier this year, however, Chief Bankruptcy Judge Robert

Nugent issued a differing opinion on this topic in In re Sauer, 2009 Bankr. LEXIS 687 (March 11, 2009). Judge Nugent dis-tinguished the facts in Hall and narrowed the allowance of two homestead exemption claims.

Judge Nugent found that the debtors in Sauer had a less cred-ible claim of permanency in their separate properties because the debtors had separated only weeks prior to filing their bank-ruptcy. The Halls had been separated for more than two years, and their separation was not voluntary but was the result of a court order. Also, the Sauer properties were 115 miles apart, as opposed to the situation in Hall where the two homesteads were on the same tract of land.

Perhaps most importantly, however, Judge Nugent disagreed with Judge Karlin’s conclusion that other exemption statutes allowed a separate exemption claim “even though the statu-tory authority for the exemption does not specifically provide for two exemptions for married couples.” Judge Nugent cited K.S.A. 60-2304 in support of his opinion that personal prop-erty exemptions are expressly granted to “every person residing in this state,” without regard to marital status. He found that language to be in stark contrast to the homestead exemption language, and found that separated married couples could not claim separate homesteads. Judge Nugent was careful to point out the potential for fraud if such exemptions were allowed. He felt the beneficent policy of the homestead exemption could be abused by people who manipulate their marital situation on the eve of bankruptcy and reconcile once they have obtained their discharge after successfully protecting two pieces of property.

Although it seems that such a practice could be curtailed by Judge Karlin’s approach to disallowing the exemption for each party’s non-exempt, one-half interest, Judge Nugent felt it would open a Pandora’s Box, and the allowance of the exemp-tion would be contrary to the statutory language. As such, these opinions should give pause to anyone who considers filing a bankruptcy prior to the completion of a divorce action when the parties live on separate properties.

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Address ChangesMichael L. SextonKaren L. ShelorSexton & ShelorSuite 1116901 Shawnee Mission ParkwayShawnee Mission, KS 66204(913) 789-7477, Fax: (913) 789-7377

David S. LockettMcDowell, Rice, Smith & Buchanan, P.C.Suite 2007101 College BoulevardOverland Park, KS 66210(913) 338-5400, Fax: (913) 338-1033Email: [email protected]

Stephanie E. GoodenowLaw Office of Stephanie Goodenow, LLC214 S. Chestnut, Suite 4Olathe, KS 66061(913) 782-5544, Fax: (913) 782-4445Email: [email protected]

Thomas J. ErkerJ. Ryan ErkerErker Law Firm, P.A.130 N. Cherry, Suite 203Olathe, KS 66061(913) 829-2500, Fax: 829-3344www.erkerlaw.com

Christopher S. StoverSouth & Associates, P.C.6363 College Boulevard, Suite 100Overland Park, KS 66211 (913) 663-7600Email: [email protected]

Mark A. FergusonGates, Shields & Ferguson, P.A.10990 Quivira, Suite 200Overland Park, KS 66210(913) 661-0222, Fax: 491-6398 Email: [email protected]

Jay NortonRyan HareLindsay HareNorton Hare, L.L.C.9 Corporate Woods, Suite 6609200 Indian Creek ParkwayOverland Park, KS 66210(913) 906-9633, Fax: (913) [email protected]@[email protected]

Jacquelyn RokusekRokusek Law Office105 E. Park StreetOlathe, KS 66061(913) 948-9311, Fax: (913) 948-6681 Email: [email protected]

Chad LucasKuhlman Law Firm1100 Main Street, Suite 2550Kansas City, MO 64105(816) 799-0330, Fax: (816) 799-0336Email: [email protected]

Alexandra EnglishLisa GarzaJeremy MaiKansas Legal ServicesSuite 1015400 State AvenueKansas City, KS 66101(913) 621-0200

Rachel B. RubinRubin Law Firm, LLCSuite 3757015 College BoulevardOverland Park, KS 66211(913) 322-8950. Fax: (877) 662-3891Email: [email protected]

Joseph R. ColantuonoRobert J. BjergRick G. GuinnKatherine WorthingtonKatherine I. TracyElizabeth A. HansonColantuono Bjerg Guinn, LLCSuite 375, Del Sarto Building7015 College BoulevardOverland Park, KS 66211 (913) 345-2555, Fax: (913) 345-2557www.ksmolaw.com

Christopher A. BowersThe Bowers Law Office, LLC221 E. 11th StreetKansas City, MO 64106 (816) 448-6000Fax: (816) 221-4866Email: [email protected]

Raylene K. CrozierCrozier Law Firm, P.A.Suite 5009393 W. 110th StreetOverland Park, KS 66210(913) 323-6810, Fax: 451-6750

Brian L. BurgeSanders Warren Russell LLPSuite 12509401 Indian Creek ParkwayOverland Park, KS 66210(913) 234-6100, Fax: (913) 234-6199Email: [email protected]

Shawnee Municipal Court5860 Renner Rd.Shawnee, KS 66217(913) 742-6003; Fax: (913) 962-0983

Sheldon M. Crossett3733 Somerset Dr.Prairie Village, KS 66208(913) 642-5649

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The Layne Project, Inc. was founded in February 2008 on the premise that chil-dren are best served when their parents, the courts, and the professionals involved in child custody issues attempt to resolve those issues by looking at things through the eyes of the child. The Layne Proj-ect has taken an innovative approach to child custody issues with a child friendly system, where the child is considered the epicenter (or root) of the system.

The Layne Project takes an innova-tive approach to the traditional custody evaluation by using a team approach, with the team consisting of a facilitator, a psychologist (when necessary), and a custody evaluator. With “child time” in mind, The Layne Project guarantees completion of custody evaluations, from start to finish, within eight weeks. The evaluation begins with a joint meeting with the facilitator, the custody evaluator, and both parents present. At this meet-ing the actual concerns are outlined. The custody evaluator then has several more meetings with both parents and the child, together and individually, while collect-ing information from collateral contacts.

The child is given a voice throughout The Layne Project’s custody evaluation process. The custody evaluator meets with the child individually several times throughout the process, providing the child an opportunity to express to the custody evaluator the child’s wants and needs. In addition, if appropriate, the child is given the opportunity to express him or herself in writing by completing questionnaires.

The facilitator incorporates a media-tion component into The Layne Project’s custody evaluations. Before a report is written, a final meeting is held at which the mother, the father, the custody evalua-tor, and the facilitator are present. At this meeting, the custody evaluator presents recommendations to the facilitator and the parents, and then leaves the meeting. The facilitator continues the meeting, at-tempting to assist the parents in reaching an agreement that incorporates the cus-tody evaluator’s recommendations. If an agreement is reached, the facilitator me-

The Layne Project - An Innovative Approach to Resolving Child Custody & Parenting Time DisputesBy Trina A. Nudson, J.D., LBSW & Monica DeCicco, LMSW

morializes the agreement. If the custody evaluator approves of the final agree-ment, it is sent to the attorneys and to the court. In the event an agreement cannot be reached, the facilitator will inform the custody evaluator of the impasse, and the custody evaluator will complete and sub-mit a full report to the attorneys and to the court.

The Layne Project’s approach to cus-tody evaluations benefits the courts as well as the child and the family. While conserving the court’s resources, this ap-proach gives children the opportunity to express their views, and gives parents the opportunity to reach an agreement af-ter receiving insight from professionals. This process provides parents with the building blocks for what will hopefully evolve into a successful co-parenting re-lationship.

The Layne Project also offers the following services: Supervised Parent-ing Time, Supervised Exchange, Moni-tored Phone Calls, Changes (a children’s course), Cooperative Parenting Courses, Mediation, and Case Management.

You may contact The Layne Project at [email protected], 108 E. Pop-lar, Olathe, KS 66061, (913) 829-3711.

Trina A. Nudson, LBSW, JD, Director. Trina is responsible for program coordi-nation for The Layne Project, Inc. She received both her J.D. and Bachelors Degree from the University of Kansas. She earned her BSW in 1998, and later that year received her BGS in Human Development and Family Life with an emphasis on Delinquency and Juvenile Justice. While attending law school, Tri-na worked in the Child in Need of Care Division of the District Attorney’s office in Topeka, and prior to that she held a position as foster care social worker with Kansas Children’s Service League. Trina is a trained mediator, case manager, and guardian ad litem.

Monica DeCicco, MSW, Assistant Direc-tor. Monica is the Assistant Director of The Layne Project, Inc. She began as a contractor providing supervised parent-ing time and recently took the position of Assistant Director. She earned her Bach-elor of Social Work Degree from Southern Illinois University in 2000. She worked for two years in the child welfare system in Chicago, IL. She returned to school

Chris CagleReal Estate Broker

Somerset Realtors, LLC302 S. ClairborneOlathe, KS 66062(816) 589-6932

[email protected]

Serving Johnson County for over 30 years!

Providing personal real estate service for lawyers to effectively

market and sell real estate whether brought about by divorce,

ligitation or by liquidating real estate in probate.

ChrisCagleRealtor.com

at the University of Illinois at Chicago, Jane Addams School of Social Work in their advanced standing program to re-ceive her Masters Degree in Social Work in 2003. She worked as an international social worker in London, England for the past three years before returning to the United States this year.


New MembersEdward C. GilletteLaw Offices of Edward C. Gillette5501 Foxridge DriveMission, KS 66202 (913) 371-4131, Fax: (913) 371-3333Email: [email protected] School: Washburn Yr. Graduated: 1984

Michael S. MogensonLaw Offices of Edward C. Gillette5501 Foxridge DriveMission, KS 66202(913) 371-4131, Fax: (913) 371-3333Email: [email protected] School: WashburnYr. Graduated: 1999

Michelle A. FoxBerman & Rabin P.A.10660 BarkleyOverland Park, KS 66212(913) 649-1555, Fax: (913) 652-9474Email: [email protected] School: UMKCYr. Graduated: 1993

Melody L. RaylBryan Cave LLPSuite 35001200 Main StreetKansas City, MO 64105 (816) 374-3274, Fax: (816) 374-3300Email: [email protected] School: UMKCYr. Graduated: 2007

Jane C. HoltBlue Cross & Blue Shield of Kansas City2301 MainKansas City, MO 64141(816) 395-3622, Fax: (816) 392-2379Email: [email protected] School: WashburnYr. Graduated: 1985

Kent M. DryerThe Muir Law Firm, LLC5600 W. 97th StreetOverland Park, KS 66207 (913) 449-2928, Fax: (800) 536-7326Email: [email protected] School: VanderbiltYr. Graduated: 2007

M. Jared MarshThe Muir Law Firm, LLC5600 W. 97th StreetOverland Park, KS 66207(913) 909-7763, Fax: (800) 536-7326Email: [email protected] School: UMKCYr. Graduated: 2002

Steven R. SmithGates, Shields & Ferguson, P.A.Suite 200 10990 Quivira Overland Park, KS 66210(913) 661-0222, Fax: (913) 491-6398Email: [email protected] School: WashburnYr. Graduated: 1978

Cara MilliganPayne & Jones, Chartered11000 KingP. O. Box 25625 Overland Park, KS 66225(913) 469-4100, Fax: (913) 469-8182Email: [email protected] School: University of KansasYr. Graduated: 2008

Preston A. DrobeckBerkowitz, Cook & GondringSuite 1004420 MadisonKansas City, MO 64111(816) 753-5000, Fax: (816) 753-3641Email: [email protected] School: UMKCYr. Graduated: 2008

Eric W. LomasWiesner & Frackowiak, LLPSuite 2206750 W. 93rd StreetOverland Park, KS 66212(913) 381-7654, Fax: (913) 383-3948Email: [email protected] School: WashburnYr. Graduated: 2008

Michael C. Cavell9208 FontanaPrairie Village, KS 66207(913) 381-1818, Fax: (913) 381-1725Email: [email protected] School: WashburnYr. Graduated: 1973

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Bulletin Board

David HaydeonRichard Becker

Richard L. Becker and David J. Haydeon became Shareholder’s with the firm of Levy and Craig, A Professional Corporation.

For more than 80 years, Levy and Craig, A Professional Cor-poration, has helped clients retain their edge by serving as a sole source for legal solutions. Levy and Craig offers 11 prac-tice areas and focuses on developing close working relation-ships with clients to resolve the legal issues they face. With of-fices in Kansas City, Mo., Overland Park, Kan., and Gladstone, Mo., Levy and Craig attorneys are easily accessible to clients metrowide, regionally and throughout the nation.

Issaku YamaashiIssaku Yamaashi has become a Partner with Foulston

Siefkin. Mr. Yamaashi practices in the Overland Park office in the areas of general business, health care, real estate, securities, and mergers and acquisitions. Matthew Stromberg has joined the firm as a new Associate. Mr. Stromberg practices in the Overland Park office in the area of employment and labor.

Foulston Siefkin LLP, is Kansas largest law firm, providing a full range of practice areas that cover the spectrum of the legal profession, including civil and complex litigation, busi-ness matters, employment and labor and health care. For more information, please contact Matt Knoblauch, Chief Marketing Officer, at (316) 291-9789, [email protected], or re-fer to the Foulston Siefkin web site at www.foulston.com.

Matthew Stromberg

Charley Carter Insurance Agency

Growing up in a small East Texas town, I learned at an early age, the value of family, friends, and relationships. I also learned how important loyalty, trust, and honesty are in our personal and professional lives. I was fortunate enough to get an opportunity to play baseball for four years in college and another five in the Houston Astros and Detroit Tigers organizations. I ultimately graduated from Baylor University with a Bachelors Degree in Finance. My family and I have spent the last three years in the Kansas City area where I worked as a financial analyst before opening my own Farmers Insurance Agency. I also spend time working at 68 Inside Sports with young athletes who are pursuing their baseball dreams. If I have the opportunity to service your insurance and financial needs, you will see these same principles demonstrated in the Charley Carter Insurance Agency.

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A Step Back In Time:By Hon. Karen Arnold Burger

“[T]he gravamen of the complaint is that, being an empiric without moral sense, and having acted ac-cording to the ethical standards of an imposter, the licensee has per-fected and organized charlatanism until it is capable of preying on human weakness, ignorance and credulity to an extent quite beyond the invention of the humble mounte-bank who has heretofore practiced his pretentions under the guise of practicing medicine and surgery.”

Brinkley v. Hassig, 130 Kan. 874, 876 (1930)

Dr. John R. Brinkley sued J.F. Has-sig and other members of the Kansas State Board of Medical Registration and Examination for revoking his medical license under what he claimed was an unconstitutional statute. Brinkley ar-gued his license was a property right that could not be denied without due process of law. He argued that he should have been allowed to subpoena witnesses and documents, take pre-hearing depositions, and cross-examine witnesses. The Court found that the Board was an administra-tive entity and, while Brinkley was en-titled to a hearing before his license was revoked, he was not entitled to a full-blown “trial.” He was given reasonable notice of the action and an opportunity to

be heard and present his defense. That is all that is required and, therefore, the statute so providing was not unconstitu-tional. After the opinion was announced, the Kansas City Star declared, “The su-perquack of Milford is finished.”

Dr. Brinkley was not a stranger to the Kansas Supreme Court, and the Has-sig opinion did not “finish” him. Two years later, the Court filed its decision in Brinkley v. Fishbein et al., 134 Kan. 833 (1932). Brinkley sued Morris Fishbein, the editor of the Journal of the American Medical Association, for libel after he published an article stating that Brinkley was a “quack” doctor of “unsavory pro-fessional antecedents.” The district court denied Fishbein’s motion for summary judgment. He had argued the statements were the truth and that their truth was evident by reading the entire article. He appealed to the Kansas Supreme Court. The Court found that the plaintiff was challenging the truth of the items in the article, and therefore the case should be allowed to go to a jury. It affirmed the denial of the defendant’s motion for sum-mary judgment.

Although we do not know the results of the Kansas trial, in a similar trial in Arkansas, Fishbein was able to establish the truth of the allegations and thus re-ceived a defendant’s verdict. See Brin-kley v. Fishbein, 110 F.2d 62 (5th Cir. 1940). It was a case that finally put an end to Dr. Brinkley’s career. So who was Dr. John R. Brinkley? Moreover, was he a “quack?”

Dr. John R. Brinkley was also known as the “Milford Messiah” and the “Goat Doctor.” He was a run-of-the-mill flim-flam man and “tonic” salesman until 1917, when he settled in Milford, Kansas after the town placed an ad for a doctor. It did not seem to matter that he had never graduated from any medical school. He set up shop.

One day, a 46-year-old farmer by the name of Bill Stittsworth appeared at Dr. Brinkley’s door complaining of impo-tence. Goats have long been known by farmers to be particularly frisky animals. When Brinkley advised Stittsworth that he did not know of any cure for such a problem, Stittsworth allegedly said, “Too bad I don’t have Billy goat nuts.” An idea was born. Dr. Brinkley started implant-ing (or more aptly inserting) goat testi-cles into men to increase their virility. It

turned out to be the Viagra of the 1920’s, although the entire success was because of the placebo effect. Word spread like wild fire, and soon people from all over the world were descending on Milford for the surgery.

This idea had not been concocted en-tirely in a vacuum. In France, Dr. Serge Voronoff had reported similar results by transplanting chimpanzee testicles into men. In fact, he had captured so many chimpanzees to keep his clinic stocked, he nearly drove the species to extinction.

Dr. Brinkley got bolder. He started implanting goat ovaries in women to in-crease their fertility. He had an “execu-tive” package he offered for considerably more money, where he implanted in his wealthier patients human testicles ob-tained from executed inmates at prisons in Kansas and Oklahoma. He was mak-ing almost $50,000 per week. He had a 16-bed hospital in Milford. He trav-eled the world performing the surgery. By 1924, he had built a radio station in Milford, one of the few in the country. KFKB (“Kansas First, Kansas Best) had the first radio programming operated with “advertisements” and “sponsors.” Brin-kley hosted a show called “The Medical Question Box.” People called in their ailments and he prescribed the various tonics he produced as a cure. Not only did the caller go to the pharmacy to buy the tonics (all part of the Brinkley Phar-maceutical Association, which provided kickbacks to the pharmacies that sold Brinkley’s tonics), but thousands of lis-teners with similar complaints did too. He kept racking in the money, now in the millions. When the State of California tried to extradite him for fraud commit-ted in that state, the Governor of Kansas, Jonathan M. Davis, refused to comply and replied, “We people in Kansas get fat on his medicine. We are going to keep him here so long as he lives.”

Simultaneously with the Hassig case, the Federal Radio Commission refused to renew Dr. Brinkley’s radio license, on the basis that his broadcasts were entirely for his own private interests and not the “public interest” as required by law. The Commission found his “Medical Ques-tion Box” program inimical to the pub-lic health and safety. The decision was supported by the Court of Appeals of the

STEP BACK (Continued on page 18)

Dr. John R. Brinkley


STEP BACK (Continued from page 17)

District of Columbia in KFKB v. FRC, 47 F.2d 670 (D.C. Cir. 1931).

Three days after losing his medical li-cense, Brinkley announced he would run for governor of Kansas. His plan was to replace the medical review board with his appointees and get his license back. He was too late to get on the ballot, the election being only a few weeks away, so he used his radio program to mount a write-in campaign. Just a few days before the election, when it was clear Brinkley would win in a landslide, the Kansas attorney general announced that the only way a write in ballot would be counted would be if the voter wrote “J.R. Brinkley.” If the periods were missing, or there was anything other than “J.R. Brinkley” on the ballot, it would not be counted. Brinkley narrowly lost the election. All agreed that if “the intent of the voter” had been considered the stan-dard for judging the ballots, as had been decreed by the Kansas Supreme Court in the past, Brinkley would have won. There were more than sufficient ballots thrown out to have given Brinkley the governor’s mansion.

No longer feeling the love in Kansas, Brinkley sold the radio station and moved to Del Rio, Texas. He built a station on the other side of the border in Mexico, away from the reach of the Federal Radio Commission. He obtained permission from the Mexican government to broad-cast at a higher frequency than any sta-tion in the world had ever been allowed to broadcast, and his station, call letters XERA, was known as the “border blast-er.” His programming could be heard all the way to Toronto, Canada. Many coun-try and western stars got their start on XERA in Del Rio. Brinkley was the first to record broadcasts to be played later. He continued to make millions of dollars and perform his goat gland surgeries at will. Some say that Huey Long had been scheduled for the surgery, but was assas-sinated before it could be performed.

Throughout his career, Brinkley was “chased” by Morris Fishbein, editor of the Journal of the American Medical As-sociation and a well-known “quack-bust-er” of his time. He finally succeeded in destroying Brinkley, but it took him over 20 years to do so. At his Kansas Medical Board hearing in 1930, midway through his career, prosecutors proved that Brin-kley had killed at least 42 patients at the Milford Hospital, and many others stag-gered away from the clinic to die else-

where from complications and infection. In addition, he had 10 years worth of pa-tients on the Medical Question Box pro-gram that followed his “tonic” advice and did not seek further medical treatment for their ailments, undoubtedly resulting in their untimely death as well.

So yes, Dr. John Brinkley was a quack and a charlatan. Many believe he was the most dangerous quack or mountebank to ever live. If you want to read more about him, much of the information from this article was obtained from a New York Times best-seller, “Charlatan: America’s Most Dangerous Huckster, the Man Who Pursued Him, and the Age of Flimflam” by Pope Brock. It is a fascinating look at Kansas history that many of us were never exposed to in our Kansas school-ing.


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Court NewsNotice to Appear in Juvenile Cases: A New ProcessDouglas Wood, Fifth DistrictJohnson County Commissioner

Since the first of the year, law enforce-ment officers in Johnson County have had the option to issue a “Notice and Agree-ment to Appear” to non-violent juveniles who are alleged to have committed minor crimes.

The notice is issued in lieu of the ju-venile being transported to the Juvenile Intake and Assessment Center (JIAC) in Olathe. The juvenile and his/her parent/guardian sign the agreement to contact JIAC staff within 24 hours to set an ap-pointment for the intake and assessment process that would normally take place if the juvenile were transported immedi-ately to JIAC.

If the juvenile fails to contact JIAC staff within 24 hours or fails to keep the appointment, JIAC staff will report the failure to the Johnson County District At-torney’s Office for possible use in future case filing decisions.

This new process will further the pur-pose of the state-mandated JIAC program to provide the earliest opportunity for as-sessments of juveniles to determine their needs and risks. The assessment can de-termine the root cause of the juvenile’s problem behavior, the appropriate coun-seling, and refer the family to appropri-ate community resources in an effort to prevent a juvenile from re-offending and further disrupting the family before his/her court appearance.

For approximately 25 percent of the juveniles that encounter the judicial system, we know that exposure to the judicial system alone (even without su-pervision) is enough that they will not re-offend. For approximately 60 percent, we know that supervision, with proper programming and counseling, can al-most assure that the juvenile will not re-offend, but supervision without programs predicts that over one-half will re-offend. Then there is the final 15 percent that will probably continue to re-offend even with supervision and programming. There-fore, it is imperative that we screen and assess juvenile offenders to determine their needs and risks, so we can marshal our resources and focus our efforts, in

order to make a difference in the lives of these juveniles and to protect society from the others.

Two years ago, I suggested this new process to the Juvenile Corrections Advi-sory Board (JCAB) and our Department of Corrections, which studied the sugges-tion and learned that approximately 2,500 juvenile offenders were being stopped by law enforcement officers each year and released back to their parents/guardians, rather than being transported to JIAC for assessment. Officers did not transport ju-veniles for non-violent offenses because to do so would pull them away from their duties and leave their communities vul-nerable. Consequently, Johnson County was not getting its full share of state fund-ing. Accordingly, the JCAB and correc-tions recommended this new process to all the police departments and the district attorney’s office for their approval, and to the district court for its authorization.

IT IS WORKING!

The District Court of Johnson County, Kansas has adopted new Local Court Rule No. 25, effective as of December 11, 2008 regarding the use of standard temporary orders in all domestic rela-tions matters.

The four Domestic Forms include general orders of restraint and child cus-tody and/or child support orders. An Au-tomatic Standard Temporary Order may be entered ex parte in all divorce cases, unless more specific child custody and/or child support orders are requested.

Ex parte orders will not generally be granted which set aside exclusive pos-session of the parties’ marital residence to one party, absent evidence of a risk of violence or other unusual circumstances

New Local Rule No. 25 and the ap-proved order forms may be found at: http://courts.jocogov.org/local_civ25.htm

Local Rule No. 25


Kansas Women Attorneys Association Holds20th Conference in Lindsborg - July 16-18, 2009By Nancy Ogle

What started as a casual, loosely or-ganized continuing education confer-ence and networking opportunity led by (now) Justice Marla Luckert, has survived twenty years - a generation! In July 1989, women attorneys from across Kansas met on the campus of Bethany College in Lindsborg, and the “Lindsborg conference” was born. At the time, there was no statewide women attorneys association, but out of that event grew an organization now known as the Kansas Women Attorneys Asso-ciation (KWAA). The conference has retained its casual atmosphere and re-mained in Lindsborg, where cell phone service is not entirely reliable. This year’s conference will carry on the tra-dition of offering CLE by distinguished judges and knowledgeable attorneys, from across the state and the nation, with some extras thrown in to honor the 20-year milestone.

One of the extras is the keynote speak-er, syndicated columnist Ellen Good-man. Goodman is one of the most in-fluential journalists in the United States. Goodman’s Pulitzer Prize-winning col-umn appears in over 400 newspapers, making her the second most widely read columnist in the country. Goodman’s keynote address on Thursday, July 16 will be open to the public through ticket sales at Watermark Books in Wichita, as well as at the door of the event.

The Appellate All-Star Review is back by popular demand. In a two-hour CLE, Justices Luckert, Beier, Rosen, and Biles will discuss notable appel-late decisions from the past year. Judge Deanell Reece Tacha of the Tenth Cir-cuit Court of Appeals will speak on feminist jurisprudence with a look back on the last 20 years. There is a CLE top-ic for everyone: bankruptcy, litigation, immigration, domestic law, and more. As usual, attendees will have the oppor-tunity to earn the full 12 hours of CLE required for a year, including as many as five hours of ethics CLE.

Of course, KWAA's annual confer-ence is not all seriousness and CLEs. The law schools of both Washburn Uni-versity and the University of Kansas will have receptions on Thursday before the keynote address. Following the key-note address, it is time to eat again, this

time at a reception held in the Sandzen Gallery on the Bethany campus. In addi-tion, opportunities to shop in Lindsborg’s unique galleries and shops are built into the conference schedule.

Each year comments are made and questions are asked about whether the Lindsborg conference is open to men. Of course! Some men have attended as pre-senters, and returned because they recog-nized what an informative, economical, and entertaining conference it is. Once the 2009 conference program is finalized,

the full schedule and registration forms will be available online at www.kswaa.com. The theme of the 20th annual con-ference is “It’s About Time,” and isn’t it about time you attended KWAA’s confer-ence in Lindsborg?


Office Building - 1200 sq ft - ½ block from Johnson County Courthouse. 3 of-fices, 1 conference room, 1 secretarial room, break room, large storage room, on-site parking, internet/cable system. $500 per month for single office or $1,250 per month for entire building. Owner will sell and provide financing with payments under $1,000 per month including taxes & insurance. Joe Vader (913) 764-5010.

Office Space, 1271 square feet, across from Johnson County Courthouse. In-cludes 3 offices, reception/secretarial area, copy/file room and kitchen. Lim-ited private parking - $2,012 per month. Contact Jim Hubbard - (913) 782-2350.

Office Space, 800 square feet, across from Johnson County Courthouse. In-cludes large office, reception/secretarial area, copy/file room. Great space for large law firm looking for an office with a large conference room for litigation/mediation associated with the Johnson County Courthouse. Limited private parking - $1,268 per month. Contact Jim Hubbard - (913) 782-2350.

Offices for rent across from Johnson County Courthouse. Contact Bill Coffee at (913) 780-0800.

Leawood Law Office Space available for rent. Corner of College & Roe. Three offices (11x14; 11x13; 9x13) available at $700 - $1,200/month, depending on ser-vices needed. Legal work available. Use of reception area, conference room, fax, and kitchen included. Free parking. For more information contact Linda or Layne at (913) 469-5544 or [email protected]

Office space near Johnson County Court-house at Chestnut & Loula. Three offices are available which includes bi-lingual receptionist, conference room and kitch-enette. Please contact Carl Cornwell at (913) 254-7600.

115 East Park Street, Suite C: Elegant office available within feet of Johnson County Courthouse. Library paneled walls and hardwood floors in main area

Classifed Ads

Office Space

with two large offices wired for tele-phone, cable and internet access. Pro-fessional atmosphere. Contact William David Langston at (913) 205-5717.

Leawood Office Space. Beautiful 1st floor space in shared law office environ-ment. One block off of 115th and Roe. One office available. This is a premium location with large offices and lots of windows. Includes conference room, internet, copier/fax. $1,500 per month. Call Paul at Hentzen Law Firm, (913) 451-7900.

Office near Johnson County Courthouse - Large, totally furnished, 240 square foot office available. Access to equipment, reception, kitchen and conference room. $500 per month. If interested contact Clark Davis at (913) 764-6879. Office Space Available 3/1/09 for one at-torney. Olathe - across from Courthouse. Receptionist, phone w/voice mail, kitch-enette, copier, fax and high speed wire-less internet access provided. Secretarial negotiable. Contact Joe Dioszeghy at (913) 780-6666.

Office space for rent beginning March 1, 2009 at 302 E. Park Street, Olathe, Kan-sas - two (2) blocks from Johnson Coun-ty Courthouse. Includes use of reception area, kitchen, work room and conference room. Contact Micheline Z. Burger at [email protected]

Office Space Available Immediately. Prestigious Leawood, Kansas location at the corner of College and Roe. Three (3) Attorney offices with space available for support staff. Free parking included. Use of reception area, kitchen, confer-ence room and receptionist included. For more information, contact Joyce Smith at (913) 469-2904.

Office Space in College Boulevard/Met-calf Corridor. Includes furnished office, support staff, parking, 9th Floor of Com-merce Plaza I, immediately West of Over-land Park Marriott. Contact Stephanie at (913) 498-1911 for more information.

Executive Office Suites Available in Leawood - Three (3) full-service ex-ecutive offices are available in Leawood within one block of College and Nall in a 6,000 square foot office building. The landlord will provide the following free services to the tenant: receptionist that greets your clients and answers your tele-

phone with your individualized business name; free high speed internet connec-tion; dedicated computer server space; computer back up via tape every night; free use of the building’s two lavish con-ference rooms; new high tech telephone system; free local telephone service; free use of the law library; free document shredding; and unified messaging which combines the person’s telephone messag-es, e-mails and faxes all in Microsoft Out-look so that they can be accessed either in their office or outside of the office. A one year’s lease is required. Please contact Glen Beal or Kelley Randol at (913) 387-3180 or [email protected] for more information or to see the office space.

Law offices located in downtown Over-land Park, in remodeled historic build-ing, free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voice mail, high speed internet access. The offices are in walking dis-tance of coffee shops, restaurants and retail stores. Fourteen highly respected attorneys in an office-sharing /network-ing arrangement. Contact Jim Shetlar at (913) 648-3220.

Virtual office - Work from home but need a nice conference room for client meet-ings? Let’s talk. (913) 706-9336.

Single Office Space: Lenexa - near 87th & I-435. $800/month includes client re-ception. Also available: phone w/voice mail, fax, copier, postage, Internet ac-cess, computer research, and backups. Call Jeff Kincaid or Terry Rees at (913) 888-9696.

Office space two blocks from Johnson County Courthouse at Chestnut & Loula. Two offices available. Includes reception area, conference room, kitchen, secure wireless internet, phones and fax. Free parking. Contact Sandy Meiners at (913) 782-5885 or [email protected].

Law Firm Association - Olathe firm look-ing for one or two experienced attorneys with whom to associate. Office, staff, bookkeeping and supplies provided for percentage of revenue. Some referral

CLASSIFIED Continued on page 20)

ProfessionalOpportunities


AttorneyServices

work is available. Apply through John-son County Bar Association office, 130 N. Cherry, Suite 202, Olathe, KS 66061 or email [email protected]

Litigation Position Available - Law Of-fice of Mick Lerner - At least five years of experience as a litigator, and member-ship in both Kansas and Missouri Bars. Please send resume to Carol Sturdivan, 10875 Benson, Suite 220, Overland Park, KS 66210. (913) 317-8000 or [email protected]

Copier for Sale - Toshiba 2060 plain pa-per copier, with automatic feeder tray, duplexer and stapler. Also included: ex-tra toner cartridge, toner bag, staple car-tridge and storage cabinet. Works fine. Service has been maintained regularly. $1,000.00 or best offer. Contact Don Smith at (913) 829-2255.

Attorney with practice focused on IRS controversy and litigation. Experienced with Audits, Installment Agreements, and Offers-In-Compromise. L.L.M. in Taxa-tion from U.M.K.C. Law School - 2001. Contact Mark Zinn, (913) 563-7945 or [email protected]

Cost-Effective Mediation - Get your money’s worth. Gordon Atcheson, KBA-trained mediator with extensive litigation experience. Reasonable hourly rates for employment, business, personal injury, and other civil cases. Contact The Atcheson Law Office at 913-362-8650.

Experienced attorney with excellent work history (both small and big firm), now an at-home mom, seeks part-time work DRAFTING documents and/or pleadings, DOCUMENT REVIEW for document production or otherwise, pos-sibly COURT APPEARANCES. Flexi-ble terms - on contract basis or otherwise. Experience includes litigation, wills/trusts, probate, contracts. 913-254-1728 or 913-940-4521, [email protected]

Qualified Domestic Relations Orders. Experienced attorney will assist you on a flat fee basis with preparation and qualifi-cation of QDROs. Contact Frank Taylor at 913-782-2350.

Former 8th Circuit Court of Appeals law clerk with 15+ years civil litigation expe-rience with two of Kansas City’s largest law firms is available for appellate refer-rals or consultation. Licensed in Kansas and Missouri. Contact Thomas Sheehan, The Sheehan Law Firm, at (913) 461-3648 or [email protected].

For Sale

CLASSIFIED (Continued from page 21Legal Writing

briefs, motions, research, editing, case consultation

G. Gordon AtchesonThe Atcheson Law Office

(913) 362-8650

KU Law honors grad • awardwinning writer • 25 years experience •civil and criminal

Briefed and argued cases in KansasSupreme Court and Court ofAppeals; U.S. Courts of Appeals;amicus counsel in Kansas and U.S.Supreme Courts

I can handle complete motionsor briefs for you or providemore limited support tosupplement your work on a flatfee or hourly basis.

Johnson County Bar Foundation

2009 Charity StampedeFriday, October 16, 2009

Lodge at Ironwoods

Tickets will go fast!Call Linda Coffee for Reservations

(913) 780-5460


Many Kansas lawyers and judges have becomeactive in the American Bar Association.

Here’s why:

• CLE — in person, online or through videos• ABA publications — the most up-to-date legal treatises available• Networking — nationally, on a wide range of legal topics• Benefits — sample forms, investment and insurance programs,

member discounts, specialized list serves and discussion boards• Projects — the Center for Children and the Law, the Commission on Women,the American Jury Project and many others

• Opportunity — ABA members can put their stamp on model rules, lawsand practice standards that improve the practice of law and the profession

To join, visit www.abanet.org/join/lawyersor call 1.800.285.2221

Try us for half-price!Call or e-mail Kansas ABA Membership Co-Chairs to receive oneof a limited number of opportunities to sample the ABA at justhalf the normal fee for your first year:

Linda Parks Hon. Karen Arnold-Burger316.265.7741 [email protected] [email protected]

Dave [email protected]

Membership in the ABA hasopened new professional doorsfor me. ABA resources, such ascommittee Web sites and CLEprograms, have helped me staycurrent. Overall, the ABA fulfills aneed for professional interactionand involvement, and makes thepractice of law more satisfying.

Joan Archer, Lathrop & Gage, LLP

If I could join only oneorganization, it would bethe ABA. More people than youmight imagine think two branchesof government are all we need.Judges and lawyers onlycomplicate things. One group ispowerful enough to stand up tothose people. That’s theAmerican Bar Association.

The Hon. Dale Somers,Federal Magistrate Judge,District of Kansas

Everymemberstory

If you don’t think the ABA isrelevant, it’s because you arenot a member. (When I joined) I quicklylearned the CLE was excellent; and theopportunity to discuss legal issueswith a diverse group of attorneys fromacross the nation taught me a lot. Italso told me we do much that is rightand good right here in Kansas. As theresult of my participation in the ABA,I have received case or client referrals;other attorneys have introduced me tonew ideas and approaches to mypractice; and my belief in the good-ness of our legal system, and the menand women who practice in it, hasdeepened. With the ABA there is muchto gain.Thomas A. HamillMartin, Pringle, Oliver, Wallace & Bauer, LLP

has a

Startyourstoday

kansas1:kansas lawyer 2/20/2009 12:57 PM Page 1

• Insurance

• Investments

• Financial Planning

No Short Cuts.

At First Eagle Financial Services, we don’t just provide top-quality insurance

products, annuities and pension programs — we use these tools to help build

long-term financial solutions to suit your needs.

Members may receive association discounts on selected insurance products

You can’t predict thefuture, but you can

prepare for it.

For help contact:

Michael Middleton, CLTC, RHU444 E. Santa Fe Street, Olathe, KS 66061-3446

(913) [email protected]

Michael Middleton is a registered representative of and offers securities, investment adviso-ry and financial planning services through MML Investors Services, Inc. Member SIPC.10740 Nall Avenue, Suite 100, Leawood, KS 66211, (913) 234-0300. First EagleFinancial Services LLC is not a subsidiary or affiliate of MML Investors Services, Inc.Insurance offered through Massachusetts Mutual Insurance Company and other finecompanies. CRN200910-095720

Johnson County Bar Association130 North Cherry, Ste. 202

Olathe, Kansas 66061(913) 780-5460

FAX: (913) 780-5480Website: www.jocobar.org

OFFICERS

President - Christopher M. ReechtPresident-Elect - Christine M. Graham

Vice President - Leonard A. HallSecretary/Treasurer - Jason C.M. McClasky

Executive Director - Linda Coffee

BOARD OF DIRECTORS

Past PresidentJean W. Wise

Senior Lawyers Section PresidentRoger E. Stanton

Young Lawyers Section PresidentKatie McClaflin

10th Judicial District Court RepresentativeHon. Thomas M. Sutherland

Elected Director ITimothy P. McCarthy

Elected Director IIKevin W. Yoder

Elected Director IIJoel I. Krieger

Appointed DirectorsDaniel E. StuartW. Scott Toth

PRSRT FIRST CLASSU S POSTAGE

PAIDBOELTE HALL

66205

130 North Cherry, Ste. 202Olathe, Kansas 66061

quarterly by the johnson county bar association volume 23

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