source: Caselaw Access Project

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text:
    STATE of Kansas, Appellee, v. Alejandro Arturo GARCIA-GARCIA, Appellant.
    No. 116,648
    Supreme Court of Kansas.
    Opinion filed May 10, 2019
    Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
    Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
   The opinion of the court was delivered by Biles, J.:

A jury convicted Alejandro Garcia-Garcia of attempted capital murder, kidnapping, burglary, and interference with law enforcement. His Kansas crimes arose from a high-speed car chase that began in Oklahoma. In this direct appeal, Garcia-Garcia raises four issues: (1) the relevancy and undue prejudice of evidence about his criminal acts in Oklahoma, (2) prosecutorial error, (3) jury instruction error, and (4) the court's order that he pay a percentage of the attorney fees incurred for his defense. Before discussing these, we first consider an appellate jurisdiction question raised sua sponte and hold jurisdiction is proper. We affirm the convictions, vacate the attorney fees assessment, and remand to the district court with directions to reconsider that assessment.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal can be broken down into three separate but related incidents. We briefly describe them now and will provide more detail when addressing the applicable issue.

The high-speed chase in Oklahoma

This began when an Oklahoma police officer pulled Garcia-Garcia over for speeding. He had two passengers in his vehicle-one in the front seat and another in the back. Garcia-Garcia gave the officer his ID, which was invalid. Another officer arrived as backup. An officer instructed Garcia-Garcia to turn off the vehicle's engine, but he refused and drove away. The officers pursued in their respective patrol cars. During the chase, gunshots were fired from a rear window of Garcia-Garcia's vehicle. An officer was shot in the forehead and his car crashed. He survived his injuries.

The Kansas kidnapping

Law enforcement officers ended the vehicle chase by deploying stop strips near the Kansas border. Garcia-Garcia fled on foot. He saw Stanley Shafer Jr. standing by a truck outside a house. Shafer agreed to give him a ride. While in the truck, Garcia-Garcia showed Shafer a gun and gestured with it to continue driving beyond where Shafer had initially intended to take him. Shafer later testified he was scared and felt he had no choice. Shafer saw a friend fishing at a bridge and stopped to talk with him. Shafer took the keys with him so Garcia-Garcia could not drive away.

The attempted capital murder

While at the bridge, Garcia-Garcia flagged down another truck driven by David Henderson, who agreed to take him to Liberty, Kansas. As they drove, Garcia-Garcia asked Henderson to drive to Garnett. Henderson declined, refusing Garcia-Garcia's offer to pay him $ 500. They saw a sheriff's car as they approached Liberty. Garcia-Garcia ducked down when they passed and asked Henderson what the sheriff's car was doing. Henderson said it turned around and was following them. When Henderson stopped, Deputy Michael Grimes pulled up about 90 feet behind Henderson's vehicle.

The stories conflict about what happened next. Henderson heard Grimes say, "Let me see your hands." He turned and put his hands out the window. By that time, Garcia-Garcia was outside the truck, holding a gun. Henderson heard gunshots and then blacked out when Grimes shot him in the neck.

Grimes testified Garcia-Garcia fired first, so he returned fire. Grimes was in front of his patrol car. Realizing he had no cover, he tried to run backwards to his car but tripped and fell. Grimes said Garcia-Garcia continued shooting after he fell. When Grimes returned to his car, he saw Garcia-Garcia running away.

In a later police interview, Garcia-Garcia said Grimes shot first. He told investigators he accidentally fired one shot toward the truck's rear. He repeatedly said he only fired once but agreed it was possible he fired more because he was scared. He said after he fired his single shot, he saw Grimes fall to the ground. He then ran to a nearby house. He was found inside in a closet, hiding under some clothes.

At trial, a KBI agent testified about the physical evidence. The agent said investigators found four bullet casings matching Garcia-Garcia's pistol. The agent noted their location corroborated Garcia-Garcia's claim he fired a shot toward the truck's back. He also testified the physical evidence could not determine what order any particular shot was fired. Likewise, he noted both civilians and law enforcement are bad at estimating the number of shots fired in high stress situations.

A jury found Garcia-Garcia guilty of attempted capital murder of Grimes, kidnapping Shafer, burglary, and interference with law enforcement. The district court imposed a hard 25 life sentence for the attempted capital murder conviction with consecutive presumptive sentences for the remaining convictions. Garcia-Garcia now brings this direct appeal.

JURISDICTION

Attempted capital murder is an off-grid offense. K.S.A. 2015 Supp. 21-5401(c). Conviction requires a hard 25 life sentence. K.S.A. 2015 Supp. 21-6620(a)(2)(A). This court has direct appellate jurisdiction over convictions of all life sentence and off-grid offenses, except those under Jessica's Law. K.S.A. 2016 Supp. 22-3601(b)(3), (4).

But Garcia-Garcia filed his notice of appeal, stating: "Defendant hereby appeals to the Kansas Court of Appeals in the above referenced case." (Emphasis added.) We ordered Garcia-Garcia to show cause how his notice of appeal conferred appellate jurisdiction and suggested his notice was potentially defective because a notice of appeal "[1] shall designate the judgment or part thereof appealed from , and [2] shall name the appellate court to which the appeal is taken ." (Emphases added.) K.S.A. 2017 Supp. 60-2103(b).

Garcia-Garcia responded that his notice should be considered jurisdictionally sufficient, citing State v. Boyd , 268 Kan. 600, 607, 999 P.2d 265 (2000) (holding notice of appeal sufficient to give Court of Appeals jurisdiction by stating defendant " 'appeals from his conviction in the above captioned matter' "). He claimed the notice made clear he was appealing from his criminal conviction although he did not mention it. He reasoned the State would be no more prejudiced by his notice than by one with generic language because the State would learn the issues on appeal by reviewing his brief.

As to incorrectly naming the court to which his appeal is taken, he argued naming the Court of Appeals instead of the Supreme Court should also not be a jurisdictional defect, citing State v. Laurel , 299 Kan. 668, 325 P.3d 1154 (2014). But in Laurel , the court held a notice of appeal incorrectly directed to the Court of Appeals presented no jurisdictional obstacle unless the State was misled or disadvantaged by the error. 299 Kan. at 675, 325 P.3d 1154. That is not claimed here.

Garcia-Garcia explained he first docketed his case with the Court of Appeals because he considered K.S.A. 2016 Supp. 22-3601(b) ambiguous on which appellate court had jurisdiction. He also believed his case could be transferred to this court since his conviction of attempted capital murder was an off-grid felony carrying a hard 25 life sentence. See K.S.A. 2016 Supp. 22-3601(b)(3) (direct appeal when "a maximum sentence of life imprisonment has been imposed"); K.S.A. 2016 Supp. 22-3601(b)(4) (direct appeal when "the defendant has been convicted of an off-grid crime").

Garcia-Garcia further suggested 2016 Supp. 22-3601(b)(4), not subsection (3), might control because his conviction "was a post-1993 conviction of an attempt of an off-grid crime," citing State v. Cameron , 294 Kan. 884, 899, 281 P.3d 143 (2012). He pointed out that if subsection (b)(4) applied, it "would appear to exclude a conviction of attempted capital murder as a crime subject to this Court's direct review" because of subsection (b)(4)(G) ("The provisions of this paragraph shall not apply to any case in which the off-grid crime was ... an attempt ... of any such felony ." [Emphasis added.] ).

We ordered additional briefing to address "whether appellate jurisdiction arises under K.S.A. 2016 Supp. 22-3601(b)(3) or K.S.A. 2016 Supp. 22-3601(b)(4)(G)."

Standard of review

Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. State v. Looney , 299 Kan. 903, 906, 327 P.3d 425 (2014). To the extent the court's inquiry requires statutory interpretation, this court also exercises unlimited review. 299 Kan. at 906, 327 P.3d 425.

Discussion

Our general jurisdiction derives from Article 3, § 3 of the Kansas Constitution, which declares the Supreme Court "shall have ... appellate jurisdiction as may be provided by law." As a result, this court may exercise appellate jurisdiction as statutorily specified. Harsch v. Miller , 288 Kan. 280, 287, 200 P.3d 467 (2009). A jurisdictional question may be raised at any time and may also be raised sua sponte by the appellate court. State v. Gayden , 281 Kan. 290, 293, 130 P.3d 108 (2006).

K.S.A. 2016 Supp. 22-3601(b) provides four enumerated circumstances under which a district court's final judgment in a criminal case must be appealed directly to this court. Under subsection (b)(3), this court has direct appellate jurisdiction over "any case in which a maximum sentence of life imprisonment has been imposed, unless the maximum sentence has been imposed pursuant to [Jessica's Law]." As Garcia-Garcia received a hard 25 life sentence for attempted capital murder, which was mandated by K.S.A. 2017 Supp. 21-6620(a)(2)(A), not Jessica's Law, his appeal must be taken to this court.

Garcia-Garcia's initial suggestion that 22-3601 (b)(4) may control misconstrued the statute. The four enumerated circumstances each provide an independent basis for this court's jurisdiction. Even if his crime was an "attempt ... of any such [off-grid crime]" to which subsection (b)(4) by its terms does not apply, the appeal must still be taken to the Supreme Court because of subsection (b)(3). The statute's plain and unambiguous language makes clear this court has jurisdiction over any case fitting any one or more of the four listed types. See State v. Parker , 309 Kan. 1, 14, 430 P.3d 975 (2018) (" 'When a statute is plain and unambiguous, this court looks to its plain language.' ").

Said differently, even if (b)(4) does not mandate Supreme Court jurisdiction in Garcia-Garcia's case, jurisdiction remains independently required by (b)(3). See, e.g., State v. Williams , 308 Kan. 1320, 429 P.3d 201 (2018) (off-grid crime; direct appeal under [b][4] ); State v. Brune , 307 Kan. 370, 409 P.3d 862 (2018) (life sentence; direct appeal under [b][3] );

State v. Lee , 306 Kan. 624, 395 P.3d 418 (2017) (life sentence imposed for a class A felony offense; direct appeal under [b][2] and [3] ); State v. Corbin , 305 Kan. 619, 386 P.3d 513 (2016) (life sentence imposed for an off-grid crime; direct appeal under [b][3] and [b][4] ). And because Garcia-Garcia's life sentence requires an appeal directly to this court under K.S.A. 2016 Supp. 22-3601(b)(3), there is no need to consider whether Garcia-Garcia's appeal fits within the exception to subsection (b)(4) jurisdiction set out under subsection (b)(4)(G).

We hold this court has jurisdiction despite the misdirected notice of appeal.

EVIDENCE OF CRIMINAL ACTS IN OKLAHOMA

Before trial, the State filed a notice of intent to present other crimes evidence about the Oklahoma events. This included the chase, shooting, and officer's car crash. The notice claimed this evidence was admissible to establish Garcia-Garcia's motive and intent for the attempted premeditated murder charge in Kansas as well as the basis for the remaining charges. Around the same time, Garcia-Garcia filed a motion in limine to exclude mentioning any Oklahoma events. He argued this evidence was irrelevant to his charged crimes and highly prejudicial.

The court denied Garcia-Garcia's motion in limine, finding:

"[The Oklahoma] evidence does relate to the factual basis for the underlying felony ... [and] is admissible under K.S.A. 60-455 as the evidence is relevant to prove a material fact, ... this material fact is disputed, and ... the probative value of the evidence is not substantially outweighed by its prejudicial effect."

At trial, the court overruled Garcia-Garcia's objection to the Oklahoma evidence and allowed a continuing objection. At the end of trial, the court instructed the jury the Oklahoma evidence could be considered solely to prove Garcia-Garcia's motive and intent, and as set forth in the kidnapping instruction. That kidnapping instruction stated Garcia-Garcia was charged with kidnapping Shafer "to facilitate flight from the commission of any crime, to wit: endangering another while eluding an officer."

The Oklahoma evidence

We summarize the Oklahoma evidence, as provided by the officers: On May 28, 2015, Stephen D. Pales, an Oklahoma police officer, pulled over a vehicle driven by Garcia-Garcia for speeding. A female, later identified as Roxanne, was in the front passenger seat, and a male, later identified as Cesar, was in the back. Garcia-Garcia handed Pales his ID and expired insurance information. The officer saw beer bottles inside the vehicle and smelled the odor of beer. Pales told the occupants to stay where they were and returned to his patrol car. He checked the ID and found it was invalid. Officer Charles Neill arrived as backup. The two officers returned to Garcia-Garcia's vehicle and instructed him to turn off the engine. He refused and drove off.

The officers pursued in their individual patrol cars. Several gunshots were fired out the rear window of Garcia-Garcia's car. Pales briefly pulled off the road after his windshield was shot but soon rejoined the pursuit. When cross-examined, Pales said he was unable to see who was firing but thought it would not be possible for Garcia-Garcia to shoot through the rear passenger side window while operating the vehicle at a high rate of speed. During redirect, Pales clarified Garcia-Garcia could not have fired the shot that hit his windshield. But, he added, it was possible shots came from the driver's window during the chase. Neill testified the initial shot was from the driver's side of the vehicle, but he could not tell who did the shooting.

Oklahoma law enforcement placed stop strips along the road but failed to disable the vehicle. Pales notified Kansas authorities they were approaching the border and learned Kansas officers set up additional stop strips near Coffeyville. As the chase neared the state line, Pales saw Neill's car stuck in traffic. After this, Neill's car veered off the road, went into an embankment, and then violently rolled.

Pales pulled over to help Neill, whose car was upside down and emitting smoke and gasoline. Pales beat on the car's window, yelling at Neill, but got no response. Pales and another officer pulled Neill out. Neill stood up with his face covered in blood, complaining that his head hurt. Pales saw a bullet wound in Neill's forehead.

Preservation

To claim error on appeal, those opposed to admission of evidence must make clear the specific grounds for objection during trial. K.S.A. 60-404. The State challenges whether Garcia-Garcia's arguments are properly preserved for our review. We consider that first.

Garcia-Garcia's motion in limine argued any evidence relating to the Oklahoma events was irrelevant "to the events with which the Defendant is charged" and highly prejudicial. The district court considered these arguments at a pretrial hearing. Garcia-Garcia focused mostly on whether the evidence was unduly prejudicial because "[i]f the jurors hear that there were allegations of shots being fired at officers down there that presupposes them, I believe, to presume my client did what the State is alleging ...." In response, the State asserted the evidence was relevant because it showed motive when Garcia-Garcia shot at Grimes and established "his intent as to why he was doing what he was doing which was to escape what they had done in Oklahoma." The State agreed the evidence was prejudicial but disagreed it was unduly prejudicial.

On appeal, Garcia-Garcia does not contest that intent and motive to commit murder were facts material to the attempted capital murder charge. Instead, he asserts much of the State's evidence-particularly the Neill shooting and later events-was not relevant because Garcia-Garcia did not know they occurred. He admitted Cesar told him he hit a patrol car, but claims he did not know what happened after that. He essentially maintains the State's evidence went beyond what was necessary to prove intent and motive.

As for prejudice, Garcia-Garcia insists the evidence's potential for undue prejudice outweighed its probative value. This is premised on his argument that the Oklahoma evidence had low probative value because the events were unknown to him, so they had little bearing on what motivated his later actions. He also argues the trial court improperly left the jury with the impression Garcia-Garcia was a " 'general[ ] wrongdoer' that had been previously involved with injuring law enforcement."

But during a pretrial hearing, Garcia-Garcia relied mostly on a prejudice argument, while making only a general relevancy challenge to the evidence about the chase, shooting, and wreck of Neill's car. He referred back to that argument at trial by simply stating for the record, "I'd like to make my contemporaneous objection .... This is based on arguments that have previously been made ...." Our question now is: May a party lodge only a general relevance objection to a category of testimony, and then on appeal raise a specific ground targeting particular facts within that testimony, when the trial court had no opportunity to address the specific argument advanced on appeal? We have answered that question before in the negative.

Under K.S.A. 60-404, " 'evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.' " State v. Moore , 302 Kan. 685, 697, 357 P.3d 275 (2015) ; see also State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) ("Without a contemporaneous objection, [defendant's] claim is being asserted for the first time on appeal and is subject to the general rule that alleged [error] cannot be raised for the first time on appeal."). The court in State v. Richmond , 289 Kan. 419, 428-29, 212 P.3d 165 (2009), declined to review unpreserved evidentiary matters, holding "the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error." 289 Kan. at 429, 212 P.3d 165. The contemporaneous objection rule is not satisfied by objecting on one ground at trial and arguing another ground on appeal because it would undercut the statute's purpose. 289 Kan. at 429, 212 P.3d 165.

The district court never had a chance to rule on Garcia-Garcia's argument that Neill's injury and the damaged patrol car were irrelevant because he was not aware of them at the time of his Kansas crimes. We hold this claim as framed is not preserved. As a result, we focus on what Garcia-Garcia argued below and the district court's ruling.

Standard of review

K.S.A. 2017 Supp. 60-455 governs the admissibility of other crimes evidence. The statute provides:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

A trial court uses a three-step test when deciding whether to admit 60-455 evidence, and an appellate court employs a different standard in reviewing the trial court's decision. In step one, the trial court must determine whether the fact to be proven is material, i.e., " ' "this fact has some real bearing on the decision in the case," ' " and the appellate court reviews this independently with no deference to the lower court. State v. Haygood , 308 Kan. 1387, 1392, 430 P.3d 11 (2018). In step two, the trial court must decide whether the material fact is disputed, and if so, whether the evidence at issue is relevant to proving the disputed material fact. In doing so, the trial court considers if the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this for abuse of discretion. In step three, the trial court must determine whether the evidence's probative value outweighs the potential for undue prejudice against the accused. An appellate court again reviews this for abuse of discretion. 308 Kan. at 1392-93, 430 P.3d 11.

A trial court abuses its discretion when no reasonable person would take the view adopted by it, when the judicial action is based on an error of law, or when the judicial action is based on an error of fact. State v. Gonzalez , 307 Kan. 575, 593, 412 P.3d 968 (2018).

Discussion

Step one can be addressed easily. At trial, the district court instructed the jury the Oklahoma evidence could be considered solely to establish Garcia-Garcia's motive and intent, and as set forth in the kidnapping instruction, which required the jury to determine whether the kidnapping was done with the specific intent "to facilitate flight from the commission of any crime, to wit: endangering another while eluding an officer." Garcia-Garcia correctly does not dispute that his motive and intent were material facts for the charged offenses, particularly attempted capital murder and kidnapping. See K.S.A. 2017 Supp. 60-455(b) ("[S]uch evidence is admissible when relevant to prove some other material fact including motive , opportunity, intent , preparation, plan, knowledge, identity or absence of mistake or accident." [Emphases added.] ); K.S.A. 2017 Supp. 21-5401(a)(5) ("intentional and premeditated killing of a law enforcement officer" [emphasis added] ); K.S.A. 2017 Supp. 21-5408(a)(2) ("Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... to facilitate flight or the commission of any crime." [Emphasis added.] ); Haygood , 308 Kan. 1387, Syl. ¶ 2, 430 P.3d 11 ("Although motive is not an element of premeditated first-degree murder, evidence of its existence can be highly persuasive circumstantial evidence of guilt. Therefore, evidence of prior crimes or civil wrongs relevant to prove the defendant's motive to commit premeditated first-degree murder can be admissible under K.S.A. 2017 Supp. 60-455.").

In step two, we determine whether the material facts were disputed, and if so, whether the district court abused its discretion concluding the Oklahoma evidence was relevant to proving those disputed material facts. " 'Relevant evidence' means evidence having any tendency in reason to prove any material fact." (Emphasis added.) K.S.A. 60-401(b). Again, Garcia-Garcia does not contest that motive and intent were disputed. Instead, he challenges the evidence's relevance to those points. But it is obvious the Oklahoma evidence tended to prove the kidnapping offense's element, i.e., that Garcia-Garcia's purpose was to facilitate his flight from "endangering another while eluding an officer." Pales' and Neill's testimony described the high-speed chase, the shooting, and the resulting injury and crash. And even if Garcia-Garcia was unaware the shooting had a specific result, the testimony was relevant. We hold a reasonable person would have taken the same view adopted by the trial court. There was no abuse of discretion. See Gonzalez , 307 Kan. at 593, 412 P.3d 968.

Finally, we determine in step three if the district court abused its discretion by concluding the Oklahoma evidence's probative value outweighed its potential for undue prejudice. See Haygood , 308 Kan. at 1393, 430 P.3d 11. As mentioned, Garcia-Garcia claims the evidence would improperly lead the jury to believe he tried to kill Grimes because he was previously involved with injuring a law enforcement officer.

We hold that a reasonable person could conclude the challenged evidence, while adverse to Garcia-Garcia's defense, was not unduly prejudicial. Its overall probative value appears significant because "[i]t helped explain to the jury what might otherwise have seemed inexplicable." Haygood , 308 Kan. at 1396, 430 P.3d 11. And to some extent, it favored Garcia-Garcia because it mostly excluded him as a potential shooter in Oklahoma. Pales testified the gunshot that struck his windshield came from a rear window-not the driver's window. He also noted Garcia-Garcia could not fire through a rear window while driving at a high speed.

Finally, after admitting the evidence, the district court provided a limiting instruction, as required by law, telling the jury the specific purposes for which the evidence was admitted. See State v. Richard , 300 Kan. 715, 721, 333 P.3d 179 (2014). We hold the district court did not abuse its discretion. See Gonzalez , 307 Kan. at 593, 412 P.3d 968.

PROSECUTORIAL ERROR

On appeal, Garcia-Garcia claims the prosecutor erred in making improper comments twice during trial. First, he claims in voir dire the prosecutor defined the reasonable doubt standard as requiring the jury to conduct a two-part test of finding doubt and then assessing if that doubt was reasonable. Second, he asserts the prosecutor erred in closing by using an inflammatory and speculative argument that Garcia-Garcia should have shot Cesar to prevent the later events.

Additional facts

During voir dire, after reminding prospective jurors Garcia-Garcia was presumed innocent, the prosecutor discussed the State's burden of proving its case beyond a reasonable doubt. In doing so, he asked whether a prospective juror could have doubt, yet still find a defendant guilty, and then suggested the jury could find Garcia-Garcia guilty if it had doubt so long as that doubt was not reasonable:

"[The prosecutor]: Okay. The fact is he is presumed innocent. It is my burden to put on evidence that proves beyond a reasonable doubt that he is guilty of the crimes charged. If I don't do that, the verdict is not guilty. If I do that, in your opinion, it's a guilty verdict.
"Now, burden. What's the burden? ... I have to put on evidence. The question is: What's the burden? Well, the burden is beyond a reasonable doubt.
....
"[W]hen we say 'beyond a reasonable doubt,' it's not beyond all doubt. The question is: Could you have doubt and still find the Defendant guilty?
....
"Do you agree that doubt just cannot be reasonable? Does that make sense?"

At that point, the prospective juror asked for clarification. And in rephrasing, the prosecutor said "the standard beyond a reasonable doubt is kind of a two-part test. First you have to determine if you have any doubt .... And then you have to determine if that doubt is reasonable." Before moving to a different topic, the prosecutor also noted neither he nor defense counsel could define beyond a reasonable doubt for the jury and said the court would give the appropriate definition.

Next, in closing, defense counsel argued Garcia-Garcia's "motive was to flee, not to kill, not to [kidnap], not to burglarize. ... Desperation to flee, but not to murder and kidnap." In rebuttal, the prosecutor responded that Garcia-Garcia had choices and his failure to invoke those choices showed his motive and intent to commit the charged offenses.

"[Garcia-Garcia] had the opportunity to simply leave the scene, even after firing once [at Grimes.] If he just wanted to scare him, shoot in the air four times. Did he shoot in the air four times? No. He didn't ....
" ... He shoots in the direction of Deputy Grimes every single time.
....
" ... There's no doubt in his desperation he wanted to flee, but he was willing to do anything to do that.
"[A]s soon as he heard shots coming to Oklahoma ..., [h]e didn't pull the vehicle over and stop and go, 'Hey, I want no part of this.' He didn't do that.
"When he heard Cesar saying, 'I'm shooting at officers,' and he hears the bullets and Cesar gives him the gun, he doesn't shoot Cesar and pull over and go Hey, I'm done. He doesn't do that.
"No, he continues into Kansas. He gets out. He runs. He kidnaps someone. He goes to another scene, gets another individual to give him a ride. He was willing to do anything to get away, including trying to kill Deputy Michael Grimes." (Emphasis added.)

Standard of review

The now familiar two-step analysis for reviewing prosecutorial error claims from State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), provides:

"[The] two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide [1] whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine [2] whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman . In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' [ Citation omitted.]" 305 Kan. at 109, 378 P.3d 1060.

Discussion

An effort to define reasonable doubt is error when it leads to misstating law. For instance, in State v. Banks , 260 Kan. 918, 927 P.2d 456 (1996), the prosecutor remarked: " 'Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it.' " Banks , 260 Kan. at 926, 927 P.2d 456. This was error because it improperly implied the jury must find the defendant guilty unless it could articulate a reason for finding not guilty. 260 Kan. at 927, 927 P.2d 456 ; see also State v. Walker , 276 Kan. 939, 955-56, 80 P.3d 1132 (2003) (The district court erred instructing the jury " 'that a reasonable doubt is just what the words themselves imply-a doubt founded on reason. It is such a doubt as a juror is able to give a reason for. ' ") (citing Banks , 260 Kan. at 927, 927 P.2d 456 ). And in State v. Mitchell , 269 Kan. 349, 7 P.3d 1135 (2000), the prosecutor in closing argument defined reasonable doubt as " 'common sense.' " 269 Kan. at 359, 7 P.3d 1135. This was improper because, by giving such a definition, the prosecutor tried to lower the State's burden. 269 Kan. at 360-61, 7 P.3d 1135.

But an effort to explain a reasonable doubt is not error when it conforms to the acceptable reasonable doubt definition. It has been long held that "a jury instruction defining reasonable doubt is unnecessary," but it is true that "such an instruction is not erroneous where the instruction is restatement of judicially approved definitions." Banks , 260 Kan. at 927, 927 P.2d 456. For example, in State v. Wilson , 281 Kan. 277, 130 P.3d 48 (2006), the court noted: "Essentially, the prosecutor was saying that, although reasonable doubt does not have a precise definition, jurors will instinctively know it when they see it." 281 Kan. at 286, 130 P.3d 48. The defendant contested the prosecutor improperly equated reasonable doubt with mere intuition. The Wilson court disagreed because the prosecutor's statement properly explained the law on reasonable doubt by noting: " ' " '[N]o definition or explanation can make any clearer what is meant by the phrase 'reasonable doubt' than that which is imparted by the words themselves." ' " ' 281 Kan. at 287, 130 P.3d 48 (quoting Walker , 276 Kan. at 956, 80 P.3d 1132 ).

In Garcia-Garcia's case, the prosecutor explained the reasonable doubt standard was "kind of a two-part test" because the jury must determine, first, if there was any doubt, and, second, whether that doubt was reasonable. There is no caselaw explicitly approving this two-part-test concept as an acceptable way to describe reasonable doubt. But the real question is whether this altered or lowered the State's burden and misstated law. In State v. Crawford , 300 Kan. 740, 753, 334 P.3d 311 (2014), the court warned that an effort to define reasonable doubt often lowers the State's burden, leads the jury into " ' "a hopeless thicket of redundant phrases and legalese," ' " and obscures its obligations rather than helps it in discharging its duty.

We hold there was no error. The steps the prosecutor described merely echoed the State's burden, like the comment in Wilson . And unlike the erroneous statements in Walker and Mitchell , the prosecutor's comment did not alter or lower the State's burden. Our conclusion is reinforced by the prosecutor's statements immediately following the complained-of remark that correctly characterized the State's burden and emphasized the prosecutor could not define it for the jury.

Turning to Garcia-Garcia's other challenge concerning the prosecutor's closing-argument contention that there was a choice to shoot Cesar, the State has some obvious problems that cause us to consider it outside the wide latitude afforded to prosecutors. The statement suggested Garcia-Garcia had a duty to act in defense of the officers when none existed. In State v. Adams , 292 Kan. 60, 73, 253 P.3d 5 (2011), the prosecutor argued, " 'This sure as heck would have been a different situation if the defendant had just walked away. He could have gone to the bouncers, he could have run to the parking garage .' " The court held the statement was error because it "implied a duty to retreat, and such an implication was contrary to the judge's instruction to the jury" that the defendant had no duty to retreat. 292 Kan. at 74, 253 P.3d 5. In Garcia-Garcia's case, the prosecutor did not limit his comments. He went on to say additional violence of uncertain legality under the circumstances would have solved Garcia-Garcia's problems.

Prosecutorial error is harmless if there is no reasonable possibility it contributed to the verdict. Sherman , 305 Kan. at 109, 378 P.3d 1060. To be sure, the comment was odd, but it was made in passing and not repeated or emphasized. And the district court properly instructed the jury that counsel's statements, argument, and remarks were intended to help it understand the evidence and apply the law, and if any statements were unsupported by evidence admitted at trial, the court directed the jury to disregard them. It further properly instructed the jury to consider the elements the State would have to prove beyond a reasonable doubt to convict Garcia-Garcia as charged. Finally, there was strong evidence supporting his convictions. We hold the error was harmless.

LESSER INCLUDED OFFENSE INSTRUCTIONS

The jury convicted Garcia-Garcia of kidnapping by confining Shafer by threat to facilitate flight from Oklahoma authorities. Garcia-Garcia requested an instruction on criminal restraint as a lesser included offense, which was given. But the district court did not instruct on the lesser included crime of attempted kidnapping. Now on appeal, Garcia-Garcia claims the jury would have reached a different verdict had it been instructed on attempted kidnapping because overwhelming evidence showed he tried to kidnap Shafer but failed because Shafer escaped. We see no error.

Additional facts

As Garcia-Garcia's vehicle approached the state line, it passed over stop strips, partially deflating the tires. An officer saw three people get out. In his police interview, Garcia-Garcia said Cesar handed him a .40 caliber handgun while they were still in the vehicle and told him to take it. After the three abandoned the vehicle, they separated.

That evening, Shafer was outside his house where he lived with his fiancée, Shanna Thompson, and her mother. He was standing by his truck with Shanna when he saw Garcia-Garcia approaching. Garcia-Garcia asked for some water. Shafer had Shanna go inside the house. While she was gone, Garcia-Garcia asked Shafer if he could get a ride. Shafer thought this meant a ride to a gas station. Shafer at first refused. When the mother came out with water, Garcia-Garcia asked her for a ride and she volunteered Shafer to do it.

Shafer got in the truck planning to take Garcia-Garcia to a nearby gas station. While they drove, Garcia-Garcia tried to speak Spanish, which Shafer did not understand. As they approached the station, Shafer heard Garcia-Garcia saying, "No, no, no," and something about a highway. Shafer thought he meant a 7-Eleven station by the highway.

As he was driving, Shafer saw Garcia-Garcia had his hand on a gun, which was sitting on the console and pointed in his direction. While stopped at a stoplight, Garcia-Garcia started acting like he wanted him to go. When the light turned green, Garcia-Garcia shook the gun "a little bit telling [him] where to go." Shafer testified he was scared and believed he had no choice. Shafer wanted to stop at the closer station and be done, but he was not allowed to do that. When cross-examined, Shafer noted Garcia-Garcia never held the gun against his head or said he would shoot him.

Shafer continued driving to the station on the highway, hoping Garcia-Garcia would get out. On the way, Garcia-Garcia told him to take him to Garnett. Shafer refused, telling Garcia-Garcia he would go to a nearby bridge, drop him, and then go back home. Garcia-Garcia shook his gun, saying Shafer would take him.

During a police interview, Garcia-Garcia said he showed Shafer the gun, told him he was not a bad guy and just wanted to get back to his family, and asked to be taken a little further. He said Shafer expressed fear. When asked specifically if he threatened the driver with the gun, Garcia-Garcia nodded, saying, " '[Y]es,' " and noted again, "I just wanted to go-to try to coerce [him] to take me a little farther."

Around this time, Shafer saw a friend fishing at the bridge. Shafer stopped, got out of the truck, and talked to the friend about what was going on. Shafer testified he could not stop earlier because he believed he "probably would have got shot." His friend's presence made Shafer believe it was safe to stop. Shafer's episode with Garcia-Garcia ended when he thwarted Garcia-Garcia's attempt to steal his truck and Garcia-Garcia left the bridge with passer-by Henderson.

Standard of review

We must first determine whether the alleged instruction error occurred, which requires us to consider if the instruction was legally and factually appropriate. In doing this, we exercise unlimited review. If there is error, we must conduct a reversibility inquiry depending on whether the issue was properly preserved. Here, because Garcia-Garcia did not request the instruction for attempted kidnapping, we apply the clear error standard. K.S.A. 2017 Supp. 22-3414(3). The question then is whether we are firmly convinced the jury would have reached a different verdict if the instruction had been given. Garcia-Garcia has the burden to establish reversibility, and in assessing whether he meets his burden, this court makes a de novo decision based on the entire record. State v. Williams , 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

Discussion

Whether attempted kidnapping was a lesser included crime of kidnapping is easily resolved because an attempt to commit a crime charged is a lesser included crime. K.S.A. 2017 Supp. 21-5109(b)(3). The real question is whether the instruction was factually appropriate. A lesser included offense instruction must be provided when there is some evidence, viewed in a light most favorable to the defendant, that would reasonably justify the defendant's conviction for a lesser included crime. State v. Seba , 305 Kan. 185, 204, 380 P.3d 209 (2016). Garcia-Garcia claims overwhelming evidence supported an attempted kidnapping conviction.

K.S.A. 2017 Supp. 21-5301(a) defines "attempt" as "any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." Garcia-Garcia claims the evidence shows he tried to kidnap Shafer but failed. In his view, Shafer "stopped the encounter and got out of his truck, at the location he said he would stop the encounter." As a result, he insists the trial court erred by failing to give the instruction. He also notes the jury had only two options of either acquittal or convicting him of kidnapping and argues, if the jury had been instructed properly, it would have reached a different verdict, i.e., the failure to give the instruction was clear error.

This is unconvincing. If true, any time a kidnapping victim escapes it becomes an attempted kidnapping. But that is not our caselaw. Shafer testified he was scared while at the red light and had no choice to stop the car, get out, and leave. He said he did not get out before seeing his friend "[b]ecause I think if I would have stopped, I probably would have got shot." By showing the gun, Garcia-Garcia gained sufficient control over Shafer to complete the crime of kidnapping. We hold the lesser included offense of attempted kidnapping was not factually appropriate.

BIDS FEES ASSESSMENT

Garcia-Garcia argues the district court violated statutory requirements when it imposed BIDS fees as a percentage without knowing what the total amount was. The State does not dispute this and merely argues this court "shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining." The State also makes a preservation argument.

Additional facts

At sentencing, the district court ordered a 70 percent waiver of Garcia-Garcia's attorney fees because of the long prison sentence, without knowing the exact amount. The following colloquy occurred:

"The Court: ... I know you'll probably have your fee, Mr. Lampson[, defense counsel at sentencing,] but I don't know about Mr. Wicks and Mr. Manna[, defense counsel at trial].
"Mr. Lampson: I don't know about theirs, Your Honor. My time would be three hours on the sentencing so, roughly, $ 200, Your Honor.
"The Court: All right. We'll order $ 200 of the fee at the BIDS' rate for Mr. Lampson's recommendation. As to Mr. Wicks and Mr. Manna, the Court will take that under advisement if we can get that information compiled as to what their fees would be listed as, or what they're requesting as far as BIDS.
"[The prosecutor]: Judge, do you want to take under consideration his ability to pay first, or do you want to-
"Mr. Lampson: We would ask the Court to consider waiving some of those attorney fees, Your Honor. It's very likely under the sentence, he's going to be incarcerated for quite some time.
"The Court: Before I waive a portion or all of the attorney fees I would like to know exactly what our number is.
"[The prosecutor]: Okay.
"The Court: It's very likely that I will waive a portion of that, but I don't just want to say we're going to waive whatever the fees were previous to Mr. Lampson being appointed without knowing what that is.
"[The prosecutor]: ... Judge, may we approach?
"The Court: Yes.
"(Off the record bench conference.)
"The Court: As far as the attorneys' fee, what the journal entry will state, we can get the number, but ... Mr. Garcia-Garcia is going to be incarcerated for a long period of time. I'm going to waive 70 percent of the Court-appointed attorney fee, the combined fee of Mr. Lampson, and then the previous attorneys that represented Mr. Garcia-Garcia. So whatever that number is determined to be that can be put on the journal entry as far as the total minus that portion that's been waived.
"[The prosecutor]: So it will be-just so I'm clear, it will be the $ 200 that's owed for Mr. Lampson's representation plus 30 percent of whatever is owed for the previous representation, or you're waiving 70 percent of-
"The Court: The entire.
"[The prosecutor]: Gotcha. Okay.
"The Court: Correct. Like I say, that's the best way I can determine to do it, not-not continuing and having a further hearing with those numbers. I would rather get this taken care of today and, I believe all the parties would appreciate that as well."

The journal entry reflected $ 2,850 for BIDS attorney fees.

Standard of review

Resolving a challenge to a district court's compliance with K.S.A. 22-4513 requires statutory interpretation, a question of law over which this court exercises unlimited review. State v. Drayton , 285 Kan. 689, 714, 175 P.3d 861 (2008).

Discussion

To begin with, the State argues this issue is not properly preserved. Generally, issues not presented to the district court will not be considered for the first time on appeal, but "because the statute places mandatory duties upon the district court, consideration is necessary to serve the ends of justice." State v. Stevens , 285 Kan. 307, 330, 172 P.3d 570 (2007), overruled on other grounds by State v. Ahrens , 296 Kan. 151, 290 P.3d 629 (2012) ; see also State v. Robinson , 281 Kan. 538, 541, 132 P.3d 934 (2006) (reviewed an unpreserved BIDS fees issue because it involved only a question of law arising on proved or admitted facts and was finally determinative of the case).

The State also asserts the issue is premature because Garcia-Garcia "has not been ordered to make monthly payments toward the BIDS fee as a condition of his incarceration" and because the statute allows him to petition the district court at any time to waive payment of all or part of the fees. But in Robinson , the State advanced the same argument to no avail. The Robinson court held the procedure was permissive and did not rule out the possibility for an appeal. Robinson , 281 Kan. at 541, 132 P.3d 934 ; see also 281 Kan. at 544, 132 P.3d 934 ("[T]he fact that the statute also permits a defendant to petition for waiver does not change the mandatory language or mean the waiver procedure is intended as a substitute for the sentencing court's initial consideration of a defendant's finances."). We conclude we may review the newly raised BIDS matter.

The statute provides,

"(a) If the defendant is convicted, all expenditures made by the state board of indigents' defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents' defense reimbursement tables ..., whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
"(b) In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose . A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment." (Emphasis added.) K.S.A. 22-4513.

The Robinson court made clear the statute imposes a mandatory duty on the trial court to tax BIDS fees against a defendant and explained how to do it:

"[T]he statute's first two subsections set out four distinct-but logically and temporally related-provisions: (1) BIDS must be reimbursed, and fees to enable such reimbursement must be assessed against convicted defendants and enforced as civil judgments; (2) the sentencing court shall consider the defendant's financial circumstances in setting the amount and payment method of the fees; (3) once the fees are assessed, a defendant may petition for waiver of all or part of the fees; and (4) if such a petition is filed, the court will determine whether payment imposes 'manifest hardship' on the defendant and his or her family and, if so, may waive or modify the amount or method of payment." 281 Kan. at 544, 132 P.3d 934.

As for step two, the Robinson court noted the statute requires a sentencing court in assessing BIDS fees to consider on the record at the time of assessment the defendant's financial resources and "the nature of the burden that payment of such sum will impose ." ( Emphasis added.) 281 Kan. at 543, 132 P.3d 934 ; see Stevens , 285 Kan. at 329-30, 172 P.3d 570.

The sentencing court ordered Garcia-Garcia to pay 30 percent of the attorney fees without knowing how much they were. The court did not fulfill its statutory duty to consider his financial resources and the burden created by the attorney fees before granting a partial waiver. The failure explicitly to consider these two factors is reversible error. See Drayton , 285 Kan. at 716-18, 175 P.3d 861 (reversed the district court's order to reimburse BIDS for attorney fees in the amount of $ 7,110, when it essentially found the defendant would not have the financial ability to pay because he would be imprisoned for 25 years); Stevens , 285 Kan. at 327-31, 172 P.3d 570 (reversing the district court's order to pay attorney fees to BIDS before considering the defendant's financial condition); Robinson , 281 Kan. at 548, 132 P.3d 934 (reversing the court's order to pay attorney fees to BIDS without explicitly considering the defendant's financial resources and the burden that the payment would impose).

We affirm Garcia-Garcia's convictions. We vacate the attorney fees assessment and remand the case for reconsideration of Garcia-Garcia's obligation.


text:
    STATE EX REL. Derek SCHMIDT, Attorney General, Petitioner, v. Governor Laura KELLY, in Her Official Capacity, Chief Justice Lawton R. Nuss, in His Official Capacity, and Kansas Senate, Respondents.
    No. 121,061
    Supreme Court of Kansas.
    Opinion filed May 10, 2019.
    Derek Schmidt, attorney general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, M.J. Willoughby, assistant attorney general, and Kurtis Wiard, assistant attorney general, were with him on the brief for petitioner.
    Clay Britton, chief counsel, Office of the Governor, argued the cause, and was on the brief for respondent Governor Laura Kelly.
    J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, appeared, and Samuel A. Green, of the same firm, was with him on the responses for respondent Chief Justice Lawton R. Nuss.
    Jeffrey R. King, of Sage Law, LLP, of Overland Park, argued the cause and was on the brief for respondent the Kansas Senate.
   The opinion of the court was delivered by Biles, J.:

This is an expedited original action in quo warranto brought by the State on relation of the Attorney General against Governor Laura Kelly, Chief Justice Lawton R. Nuss, and the Kansas Senate concerning statutory procedures and obligations to fill a vacancy on the Kansas Court of Appeals. Controversy arose after an appointee purported to withdraw shortly after the Governor announced the appointment. Disputes now abound whether anyone has authority to take another step in the process. An additional complication is presented because the Governor announced a new appointment to the fill the same vacancy after this lawsuit was filed.

The controlling statute is K.S.A. 2018 Supp. 20-3020(b), which provides in pertinent part:

"No person appointed pursuant to subsection (a) shall assume the office of judge of the court of appeals until the senate, by an affirmative vote of the majority of all members of the senate then elected or appointed and qualified, consents to such appointment. The senate shall vote to consent to any such appointment not later than 60 days after such appointment is received by the senate .... In the event a majority of the senate does not vote to consent to the appointment, the governor, within 60 days after the senate vote on the previous appointee, shall appoint another person possessing the qualifications of office and such subsequent appointment shall be considered by the senate in the same procedure as provided in this section. The same appointment and consent procedure shall be followed until a valid appointment has been made. ... If the senate fails to vote on an appointment within the time limitation imposed by this subsection, the senate shall be deemed to have given consent to such appointment. " (Emphases added.)

It is undisputed the Governor had to make her appointment to fill the Court of Appeals vacancy within 60 days of the vacancy in order to comply with K.S.A. 2018 Supp. 20-3020(a)(4), that she made the appointment on the 60th day, and her office hand-delivered documentation to that effect to the Senate Majority Leader's office. As explained below, we hold those actions effectively began the statutory 60-day Senate confirmation process as to the first appointee and that the statute makes no provision for a withdrawal once an appointment is made. To infer an ability to withdraw requires adding words to the statute, which is something courts avoid under circumstances such as this. See Nauheim v. City of Topeka , 309 Kan. 145, 150, 432 P.3d 647 (2019) ("The court will not speculate about legislative intent and will not read the statute to add something not readily found in it."); Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs. , 290 Kan. 446, 464-65, 228 P.3d 403 (2010) ("[A]ppellate courts cannot delete vital provisions or add vital omissions to a statute if the legislature failed to enact the change as intended under any reasonable interpretation of the language used, regardless of the legislature's intention.").

We further hold that K.S.A. 75-4315b(c), which generally authorizes that "[a]n appointing authority may withdraw an appointment from consideration by the senate at any time before confirmation," is inapplicable to Court of Appeals vacancies. Arguments that this more general statute supplies withdrawal procedures missing from K.S.A. 2018 Supp. 20-3020 are unavailing. K.S.A. 2018 Supp. 20-3020(b) plainly provides the only way for an appointment to fail is by the Senate's vote. Accordingly, the Governor's new appointment is ineffective because there may be only one appointee at a time. As a matter of law, the second appointment must be treated as if it never happened.

But before discussing the merits, we address sua sponte whether the Senate is properly named as a party to this quo warranto action. And for the reasons stated below, we hold the Senate is not a proper or necessary party and dismiss it from this case. That said, we necessarily considered the Senate's legal arguments in the course of analyzing the applicable statutes.

FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. Judge Patrick D. McAnany retired from the Kansas Court of Appeals effective January 14, 2019. Sixty days later, on March 15, Governor Kelly announced her appointment of District Court Judge Jeffry Jack to the vacancy created by that retirement. Later that same day, the Governor's appointments coordinator hand-delivered documents signed by the Governor indicating the nature of Judge Jack's appointment along with an information packet about him to the Senate Majority Leader's office. This delivery method and the type of documents supplied were typical of the process generally used for gubernatorial appointments subject to Senate confirmation.

By letter dated March 18, Judge Jack announced he was withdrawing from his appointment at the Governor's request. The following day, the Governor conveyed to the Senate Majority Leader that Judge Jack had withdrawn at her request. She also informed the Majority Leader she would appoint someone else to fill the McAnany vacancy within 60 days. The facts prompting Judge Jack's purported withdrawal, while highly publicized, are not part of our stipulated record.

After the announced withdrawal, the Governor, Senate President Susan Wagle, and the Attorney General disagreed about what could be done next to fill the McAnany vacancy. The State then brought this original action in quo warranto on relation of the Attorney General asking this court to determine who holds the appointing authority, if anyone, under the circumstances.

We granted a motion to expedite. The State, Governor, and Senate filed briefs addressing the case's merits. The Chief Justice filed a response expressing his intention to remain neutral and to refrain from advocating a position on the merits. The parties entered a stipulation of facts.

On April 30, Governor Kelly announced she appointed Sarah Warner to fill Judge McAnany's vacancy.

DISCUSSION

Article III, section 3 of the Kansas Constitution grants the Supreme Court original jurisdiction over actions in quo warranto. Relief in quo warranto is discretionary. We may entertain the current proceeding if we determine the issue is of sufficient public concern. State ex rel. Stephan v. Kansas House of Representatives , 236 Kan. 45, 53, 687 P.2d 622 (1984). All agree this controversy over an appellate judge's timely appointment presents a matter of significant public concern.

An action in quo warranto demands that an individual or corporation show by what authority it has engaged in a challenged action. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 656, 367 P.3d 282 (2016). K.S.A. 60-1202(1) provides an action in quo warranto may be brought in the Supreme Court: "When any person shall usurp, intrude into or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state." This action challenges the Governor's attempt to appoint Warner to fill the Court of Appeals vacancy.

The Senate's capacity to be sued

This court ordered the parties to address whether they object to the capacity of any party to sue or be sued in this quo warranto action. None object. Nevertheless, the legal question concerning whether the Legislature, or one house of the Legislature, can be sued is unsettled and it is legitimate for this court sua sponte to consider if the Senate has the capacity to be involved in this litigation.

In Kansas House of Representatives , 236 Kan. at 46, 687 P.2d 622, the State filed an original action in both mandamus and quo warranto against the Kansas House of Representatives, the Senate, and Governor Carlin. It challenged the constitutionality of a statute that allowed the Legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolution without presentment to the Governor. The lawsuit was brought not only to test the statute's validity but also to challenge the Legislature's previous actions under the statute.

The Legislature moved to dismiss the case against it on various grounds-such as sovereign immunity, insufficient service of process, and immunity from suit under the Speech or Debate Clause in Article II, section 22 of the Kansas Constitution. The court held (1) sovereign immunity did not protect governmental entities-including the legislative body-from actions for equitable or extraordinary relief; (2) "[s]ervice of process upon the presiding officers of the two houses of the legislature satisfies the purpose of the concept of process and meets the requirements of due process"; and (3) because the action was brought to challenge "the validity of the action taken by the legislature pursuant to the statute," which did "not fall within the sphere of legitimate legislative activity," the immunity under the Speech or Debate Clause did not bar the lawsuit. 236 Kan. at 47-48, 50, 56-58, 687 P.2d 622.

But the court dismissed the Legislature anyway, noting it was hesitant "to establish as precedent at this time the validity of an action such as this by the attorney general on behalf of the state directly against the legislature." 236 Kan. at 58, 687 P.2d 622. The case proceeded on the merits because the Governor was also a respondent. 236 Kan. at 58, 687 P.2d 622 ("Many state actions on relation of the attorney general against the governor of the state have been recognized by this court.").

Our current case is distinguishable because counsel appearing on the Senate's behalf represents that the Senate desires to participate and does not raise any ground advanced in Kansas House of Representatives to challenge its status as a respondent. The Senate's response brief even states: "[T]he Senate, as authorized by Senate President Wagle, consents to its inclusion as a party in this case, specifically waiving its privilege under the Speech and Debate [C]lause for purposes of this quo warranto action only." But no authority is cited granting the Senate President this unilateral power, and we are unable to find any.

K.S.A. 2018 Supp. 46-1222a(f) provides:

"The legislative counsel shall represent the legislature, or either house thereof, in any school finance litigation or other cause or matter as directed by the legislative coordinating council. In cases of quo warranto and mandamus the legislative counsel shall have the same powers and standing in all courts of this state as any county attorney or district attorney has in such attorney's county or in the supreme court and as the attorney general has in any court. When the legislature is in session, either house thereof by its resolution, or both houses by concurrent resolution may authorize the legislative coordinating council to direct the legislative counsel to bring or participate in any cause or action by representing the legislature or either house thereof or the legislative coordinating council in any court of this state or of the United States." (Emphasis added.)

This statute raises some concerns. The Senate's filings in this case do not reference any resolution authorizing the coordinating council to direct counsel to participate in this litigation. Nor, for that matter, do they contain any indication whether the counsel appearing on the Senate's behalf has been designated as legislative counsel under K.S.A. 2018 Supp. 46-1222a(a) and (f). At oral argument, we were advised no such designation has been made.

In its response brief, the Senate merely notes its President authorizes it to participate as a party. But the Kansas Senate Rules (2017-2020) are silent about giving a Senate President power to authorize the Senate's inclusion in a lawsuit. For these reasons it is debatable whether the Senate President's authorization is sufficient for that body to consent to being subject to this litigation.

Just as important, the Senate has not yet exercised any authority asserted to be unlawful by the State; so we are left to ponder how a quo warranto action against the Senate is appropriate. See City of Wichita , 303 Kan. at 656, 367 P.3d 282. In the end, it seems obvious the nature of this action as to the Senate is not in quo warranto, as the State alleges, because the Senate has not done anything yet. This court does not have constitutional power to issue advisory opinions to the Senate about its confirmation of a nominee under K.S.A. 2018 Supp. 20-3020. See State ex rel. Morrison v. Sebelius , 285 Kan. 875, 898, 179 P.3d 366 (2008) (discussing the constitutional prohibition against advisory opinions). "The judicial power granted by Article 3 of the Kansas Constitution does not include the power to give advisory opinions. A Kansas court issuing an advisory opinion would violate the separation of powers doctrine by exceeding its constitutional authority." 285 Kan. at 898, 179 P.3d 366.

Finally, this court's ultimate judgment as to the appointing authority of either the Governor or the Chief Justice will necessarily operate to guide all public officials in the performance of their respective duties, even though our judgment will not directly affect the Senate's authority to act.

For these reasons, we dismiss the Senate from this action.

The statutory authority to appoint Court of Appeals judges

The practical question in dispute between the State and Governor is what happens next with respect to the Court of Appeals vacancy. The answer turns on the legal effect of what has occurred to date. That determination requires interpretation of K.S.A. 2018 Supp. 20-3020. Our standard of review on this is well known.

"Statutory interpretation presents a question of law subject to de novo review. Central Kansas Medical Center v. Hatesohl , 308 Kan. 992, 1002, 425 P.3d 1253 (2018). When interpreting a statute, a court first attempts to discern legislative intent through the statutory language, giving common words their ordinary meanings. Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should be. The court will not speculate about legislative intent and will not read the statute to add something not readily found in it. Graham v. Dokter Trucking Group , 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain its meaning. Whaley , 301 Kan. at 196 [343 P.3d 63]." Nauheim , 309 Kan. at 149-50, 432 P.3d 647.

Under K.S.A. 2018 Supp. 20-3020 :

"(a)(1) On and after July 1, 2013, any vacancy occurring in the office of any judge of the court of appeals and any position to be open on the court of appeals as a result of enlargement of such court, or the retirement or failure of an incumbent to file such judge's declaration of candidacy to be retained in office as hereinafter required, or failure of a judge to be elected to be retained in office, shall be filled by appointment by the governor, with the consent of the senate, of a person possessing the qualifications of office.
(2) Whenever a vacancy occurs, will occur or position opens on the court of appeals, the clerk of the supreme court shall promptly give notice to the governor.
(3) If the governor is making an appointment to the court of appeals, the governor shall make each applicant's name and city of residence available to the public whenever the governor stops accepting applications for such appointment, but not less than 10 days prior to making such appointment.
(4) In event of the failure of the governor to make the appointment within 60 days from the date such vacancy occurred or position became open, the chief justice of the supreme court, with the consent of the senate, shall make the appointment of a person possessing the qualifications of office.
(5) If the chief justice of the supreme court is making an appointment to the court of appeals, the chief justice shall make each applicant's name and city of residence available to the public whenever the chief justice stops accepting applications for such appointment, but not less than 10 days prior to making such appointment.
(6) Whenever a vacancy in the office of judge of the court of appeals exists at the time the appointment to fill such vacancy is made pursuant to this section, the appointment shall be effective at the time it is made, but where an appointment is made pursuant to this section to fill a vacancy which will occur at a future date, such appointment shall not take effect until such date.
"(b) No person appointed pursuant to subsection (a) shall assume the office of judge of the court of appeals until the senate, by an affirmative vote of the majority of all members of the senate then elected or appointed and qualified, consents to such appointment. The senate shall vote to consent to any such appointment not later than 60 days after such appointment is received by the senate. If the senate is not in session and will not be in session within the 60-day time limitation, the senate shall vote to consent to any such appointment not later than 20 days after the senate begins its next session. In the event a majority of the senate does not vote to consent to the appointment, the governor, within 60 days after the senate vote on the previous appointee, shall appoint another person possessing the qualifications of office and such subsequent appointment shall be considered by the senate in the same procedure as provided in this section. The same appointment and consent procedure shall be followed until a valid appointment has been made. No person who has been previously appointed but did not receive the consent of the senate shall be appointed again for the same vacancy. If the senate fails to vote on an appointment within the time limitation imposed by this subsection, the senate shall be deemed to have given consent to such appointment.
"(c) Persons who are appointed as judges of the court of appeals pursuant to K.S.A. 20-3005, prior to its repeal, and this section, shall commence the duties of office upon appointment and consent, and each judge shall have all the rights, privileges, powers and duties prescribed by law for the office of judge of the court of appeals.
"(d) Judges of the court of appeals shall possess the qualifications prescribed by law for justices of the supreme court."

Under this statute, the first step in filling a Court of Appeals vacancy is creation of the vacancy itself. K.S.A. 2018 Supp. 20-3020(a)(1). The second step is the clerk of the appellate courts promptly notifying the Governor. K.S.A. 2018 Supp. 20-3020(a)(2). If, as here, the Governor seeks to make an appointment, the third step requires the Governor to publish the applicants' names and their residential cities when applications are no longer being accepted, and no later than 10 days before making the appointment. K.S.A. 2018 Supp. 20-3020(a)(3). These three steps are not in controversy.

The fourth step allows the Governor to make the appointment within 60 days from the date the vacancy occurred. K.S.A. 2018 Supp. 20-3020(a)(4). If the Governor does not make the appointment within 60 days, the Chief Justice of the Supreme Court must make it. K.S.A. 2018 Supp. 20-3020(a)(4).

The fifth and final step concerns the Senate's consent, which can occur either by a majority vote or by acquiescence if the Senate fails to timely vote on the appointment. The Senate has 60 days after receiving the appointment to take that vote if it is in session or will be in session during the 60-day period. If the Senate is not and will not be in session within the 60-day period, it has 20 days after beginning its next session to vote. K.S.A. 2018 Supp. 20-3020(b).

Did the Governor make an appointment within the 60-day window?

Our first issue arises at step four: Did the Governor make an appointment within the 60-day window? There is no factual dispute about this. The Governor announced her appointment on March 15-the 60th day. It is also undisputed the Governor's appointments coordinator that same day hand-delivered documents signed by the Governor indicating the nature of Judge Jack's appointment and supplying an information packet about him to the Senate Majority Leader's office.

Article II, section 18 of the Kansas Constitution states: "The legislature may provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in" the Kansas Constitution. K.S.A. 2018 Supp. 20-3020 outlines general procedures for filling a Court of Appeals vacancy, but it does not specify any particular acts required to make a valid appointment.

In Kansas, it is the Governor's duty when making a Senate-confirmable appointment to "transmit such appointments to the Senate for its action thereon." See State, ex rel., v. Matassarin , 114 Kan. 244, Syl. ¶ 3, 217 P. 930 (1923). In our current case, the uncontroverted public announcement by the Governor and written declaration from the appointments coordinator describing the document delivery suffices to establish that an appointment was made and received by the Senate.

Can the Governor withdraw an appointment once made under K.S.A. 2018 Supp. 20-3020 ?

The second issue arises between steps four and five: Did the Governor validly withdraw Judge Jack's appointment? Although the parties unanimously assert this was validly done, their claim suffers from some obvious factual and legal problems.

K.S.A. 2018 Supp. 20-3020(a)(6) provides that an appointment to a vacant Court of Appeals seat is "effective at the time it is made." And the statute is silent about whether the Governor may later withdraw that appointment, so to fill this statutory void the parties contend the Governor's authority to withdraw a Court of Appeals appointment must come from a different statute, i.e., K.S.A. 75-4315b. It provides:

"(a) All appointments of public officers which are subject to confirmation by the senate shall be received, considered and acted upon in the manner provided by rules of the senate. Appointments shall be confirmed by the senate only by an affirmative vote of a majority of the senate.
"(b) If a majority of the senate votes on the question of confirmation of an appointment to an office and the appointment is not confirmed, the office shall become vacant at that time.
"(c) An appointing authority may withdraw an appointment from consideration by the senate at any time before confirmation if:
(1) The appointing authority withdrawing the appointment is the same person, or a body having the same members, as the appointing authority that made the appointment; or
(2) the person or body withdrawing the appointment is a successor to the appointing authority that made the appointment and the appointment was made to fill a vacancy occurring after the person or body was elected to succeed the appointing authority .
"(d) If a majority of the senate votes on the question of confirmation of an appointment to an office and the appointment is not confirmed, the appointing authority which made the appointment shall not subsequently appoint to the same office the person who failed to be confirmed.
"(e) If an appointment to a public office is subject to confirmation by the senate, any appointment to fill a vacancy in an unexpired term of that office shall also be subject to confirmation by the senate.
"(f) As used in this section 'majority of the senate' means a majority of all members of the senate then elected (or appointed) and qualified." (Emphasis added.)

The parties argue this statute-in particular, subsection (c)-applies because it purports to address "[a]ll appointments of public officers which are subject to [Senate] confirmation." K.S.A. 75-4315b(a). In their view, this accurately describes the office of a judge of the Court of Appeals. But there are several persuasive reasons why this is not as clear-cut as the parties contend, and any one of these is enough to reject the parties' arguments on this point.

The factual difficulty arises because it plainly appears Judge Jack-not the Governor-withdrew his name from consideration. Judge Jack's March 18 letter to Governor Kelly states, "At your request, please convey to the Senate that I hereby withdraw from consideration for the Court of Appeals vacancy." (Emphasis added.) And the Governor's March 19 letter to the Senate Majority Leader similarly states, "At my request, Judge Jeffry Jack has withdrawn from consideration for the Court of Appeals vacancy . I will forward a new nominee for the Senate's consideration within sixty days." (Emphasis added.)

The legal reasons are more tangled. First, Kansas "[c]ase law spells out the rule that the more specific statute governs when two statutes are in conflict. 'A specific statute controls over a general statute. [Citation omitted.] Likewise, a specific provision within a statute controls over a more general provision within the statute.' [Citation omitted.]" In re Tax Exemption Application of Mental Health Ass'n of the Heartland , 289 Kan. 1209, 1215, 221 P.3d 580 (2009). K.S.A. 2018 Supp. 20-3020(b) is more specific than K.S.A. 75-4315b.

Also, K.S.A. 75-4315b(a) as a whole overlaps-and in key areas contradicts-the special procedures established in K.S.A. 2018 Supp. 20-3020(b). Under K.S.A. 75-4315b(a), an appointment shall be "received, considered and acted upon in the manner provided by rules of the senate" and "[a]ppointments shall be confirmed ... only by an affirmative vote of a majority of the senate." The applicable Senate rule provides the Senate may vote "at any time after the nomination or appointment is returned to the Senate" by the appropriate committee, and "[a]ppointments shall be confirmed ... only by an affirmative vote ...." Kansas Senate Rule 55. But K.S.A. 2018 Supp. 20-3020(b) establishes different rules regarding the consent process. It imposes a strict 60-day deadline for the Senate vote. It also conflicts with K.S.A. 75-4315b because the requirement for an affirmative vote can be dispensed with if the Senate fails to vote within the time limit, which is deemed to be consent.

The statutes also do not qualify as in pari materia ; so they need not be construed together as the parties contend. " 'Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.' " Flowers , Administratrix v. Marshall , Administrator , 208 Kan. 900, 905, 494 P.2d 1184 (1972). A close reading of the whole of Kansas statutory law on the appointment of Senate-confirmable state officers shows that Court of Appeals appointments under K.S.A. 2018 Supp. 20-3020 are not meant to be among "appointments of public officers which are subject to confirmation by the senate" addressed in K.S.A. 75-4315b.

The Kansas Legislator Briefing Book compiles a list of all appointments subject to Senate confirmation. See Kansas Legislator Briefing Book, 2017, sec. H-8. It includes 55 positions, some of which are made up of multiple offices. See Briefing Book, sec. H-8 (listing, e.g., Court of Appeals Judge [14 positions] and Board of Tax Appeals member [three positions] as single entries). The statute directing the appointment for the first position on the list, Adjutant General, provides, "The governor shall appoint, subject to confirmation by the senate as provided in K.S.A. 75-4315b , one adjutant general ...." (Emphasis added.) K.S.A. 48-203. And with the sole exception of K.S.A. 2018 Supp. 20-3020, similar language specifically referencing K.S.A. 75-4315b appears in every other statute relating to a Senate-confirmable position. See K.S.A. 12-2514 (Mo-Kan Metropolitan Development District and Agency Compact Commissioners); K.S.A. 12-2524 (Kansas City Area Transportation District and Authority Compact Commissioners); K.S.A. 2018 Supp. 17-2233 (Credit Union Administrator); K.S.A. 22-4519 (State Board of Indigents' Defense Services); K.S.A. 2018 Supp. 32-801 (Wildlife, Parks, and Tourism Secretary); K.S.A. 2018 Supp. 44-709 (Employment Security Board of Review); K.S.A. 44-1003 (Human Rights Commission); K.S.A. 2018 Supp. 48-208 (Kansas National Guard General Officers); K.S.A. 65-2878 (Board of Healing Arts Executive Director); K.S.A. 65-34a02 (Central Interstate Low-Level Radioactive Waste Commission); K.S.A. 73-1208e (Commission on Veterans Affairs Director); K.S.A. 74-560 (Agriculture Secretary); K.S.A. 74-601 (Corporation Commission); K.S.A. 74-2113 (Highway Patrol Superintendent); K.S.A. 74-2433 (Board of Tax Appeals Members and Chief Hearing Officer); K.S.A. 74-2613 (Water Office Director); K.S.A. 74-2622 (Water Authority Chairperson); K.S.A. 74-3004 (Banking Board); K.S.A. 74-3202a (State Board of Regents); K.S.A. 74-4905 (Public Employees Retirement Board of Trustees); K.S.A. 74-5002a (Commerce Secretary); K.S.A 74-5073 (Export Loan Guarantee Review Committee); K.S.A. 74-7303 (Crime Victims Compensation Board); K.S.A. 74-8703 (Lottery Executive Director); K.S.A. 74-8709 (Lottery Commission); K.S.A. 74-8803 (Racing and Gaming Commission); K.S.A. 74-8805 (Executive Director of Racing and Gaming Commission); K.S.A. 74-8903 (Kansas Development Finance Authority Board of Directors); K.S.A. 74-9804 (Gaming Agency Executive Director); K.S.A. 74-99b04 (Bioscience Authority); K.S.A. 2018 Supp. 75-711 (Kansas Bureau of Investigation Director); K.S.A. 2018 Supp. 75-1304 (Bank Commissioner); K.S.A. 2018 Supp. 75-1510 (Fire Marshal); K.S.A. 2018 Supp. 75-2535 (State Librarian); K.S.A. 2018 Supp. 75-2701 (Historical Society Executive Director); K.S.A. 75-2929a (Civil Service Board); K.S.A. 2018 Supp. 75-3702a (Administration Secretary); K.S.A. 75-4221a (Pooled Money Investment Board); K.S.A. 2018 Supp. 75-4323 (Public Employee Relations Board); K.S.A. 2018 Supp. 75-5001 (Transportation Secretary); K.S.A. 2018 Supp. 75-5101 (Revenue Secretary); K.S.A. 2018 Supp. 75-5105 (Property Valuation Director); K.S.A. 2018 Supp. 75-5117 (Alcoholic Beverage Control Director); K.S.A. 2018 Supp. 75-5203 (Corrections Secretary); K.S.A. 2018 Supp. 75-5301 (Secretary for Children and Families); K.S.A. 2018 Supp. 75-5601 (Health and Environment Secretary); K.S.A. 2018 Supp. 75-5701 (Labor Secretary); K.S.A. 2018 Supp. 75-5903 (Aging and Disability Services Secretary); K.S.A. 2018 Supp. 75-6301 (Securities Commissioner); K.S.A. 2018 Supp. 75-7304 (Long-Term Care Ombudsman); K.S.A. 2018 Supp. 75-7427 (Inspector General); K.S.A. 2018 Supp. 76-3304 (University of Kansas Hospital Authority Board of Directors); see also K.S.A. 2015 Supp. 74-99d03 (Electric Transmission Authority, repealed effective May 19, 2016). In other words, the statutes providing for Senate confirmation of all these positions expressly allow for withdrawal under K.S.A. 75-4315b. A Court of Appeals appointment is the obvious outlier.

The Senate points to its reliance on its rules in confirming past Court of Appeals appointees as evidence that K.S.A. 75-4315b should supplement K.S.A. 2018 Supp. 20-3020 in the circumstance before us. But the Senate cites no authority to demonstrate how the manner in which it has conducted previous confirmation proceedings has any bearing on this court's interpretation of either statute. This argument is unpersuasive.

We further note there are a handful of Kansas cases predating K.S.A. 75-4315b dealing with attempts to withdraw appointments. In Barrett v. Duff , 114 Kan. 220, 217 P. 918 (1923), the court held the incoming Governor could not withdraw the outgoing Governor's appointments. There, the outgoing Governor's appointees assumed their duties upon appointment. And because the offices were filled, when the incoming Governor tried to revoke those appointments, the court held, the Governor's power over the appointments was already exhausted and the attempted revocations were ineffective. Barrett , 114 Kan. at 232-33, 217 P. 918 ; see Matassarin , 114 Kan. 244, Syl. ¶¶ 1-2, 217 P. 930 (appointment to board of health entitled appointee to hold office until end of appointed term or appointment's rejection by Senate; attempted revocation invalid because office not vacant).

In Leek v. Theis , 217 Kan. 784, 539 P.2d 304 (1975), Governor Docking appointed Franklin Theis to the state Adult Authority. Before the Senate voted, his successor, Governor Bennett, recommended Theis' appointment not be confirmed. The Senate acceded to Governor Bennett's request and voted not to confirm Theis. Following that vote, Governor Bennett submitted a new appointee, whom the Senate confirmed. The court held that upon the Senate's refusal to confirm Theis the office became vacant and Governor Bennett could make the new appointment. 217 Kan. at 792, 810, 539 P.2d 304.

These cases follow the general rule that when "the nomination must be confirmed before the officer can take the office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive until title to the office is vested." McChesney v. Sampson , 232 Ky. 395, 23 S.W.2d 584, 587 (1930) ; see Burke v. Schmidt , 86 S.D. 71, 76-77, 191 N.W.2d 281 (1971) ("It is sometimes claimed, as defendants here claim, that if the action of the Governor is deemed an 'appointment' the Governor may not withdraw it, but if it is a 'nomination' the Governor may withdraw it. We do not believe the nomenclature used ought to be that test, but rather whether the action of the executive is final and complete and places the appointee in office without further action.").

But K.S.A. 2018 Supp. 20-3020 does not adhere to the general rule regarding withdrawal of a previously made appointment. The Barrett court's last-act rule hinged on the court's observation that "[n]o further right to exercise the executive function of appointment ... exists until there is again the happening of [a] contingency specified by law." Barrett , 114 Kan. at 233-34, 217 P. 918. Under K.S.A. 2018 Supp. 20-3020(a)(4), after 60 days from the vacancy have passed, the Governor lacks an express right to exercise any subsequent appointment power until the happening of a contingency, i.e., the Senate voting not to confirm the previous appointment under section (b). This expiration of gubernatorial authority is, with respect to the Governor's withdrawal power, analogous to an office not being vacant in the first place. And unless that contingency occurs, the Governor is powerless to make a substitute appointment.

K.S.A. 2018 Supp. 20-3020's silence on the appointing authority's ability to withdraw an appointment once it is made is, in addition, an indicator the Legislature did not intend to confer such power. As plainly shown above, the Legislature has demonstrated in K.S.A. 75-4315b that it knows how to confer the power to withdraw. It simply did not do so for appointments to the Court of Appeals.

But that was not always the case. The former nominating commission statutes for the Court of Appeals replaced by K.S.A. 2018 Supp. 20-3020 are even more on point with respect to the Legislature's intent. The former statutes expressly provided procedures for addressing a nominee's withdrawal before the last act required to install the nominee in the office, which under those statutes was the Governor's appointment. See K.S.A. 20-3008 (repealed effective July 1, 2013). And they contemplated both the nominating commission's withdrawal of a nominee for cause and a nominee's self-withdrawal. See K.S.A. 20-3008. Today, K.S.A. 2018 Supp. 20-3020 places the Governor in the same position as the nominating commission, requiring an additional act to "complete" the appointment and install the appointee into office: Senate confirmation. Yet the statute does not contain similar language contemplating the appointee's withdrawal before the Senate vote by either the Governor or the appointee.

Under these circumstances and authorities, the failure to address withdrawal in K.S.A. 2018 Supp. 20-3020 indicates the Legislature's intent that this particular appointment, once made, is irrevocable. See Zimmerman v. Board of Wabaunsee County Comm'rs , 289 Kan. 926, 974, 218 P.3d 400 (2009) ("[T]he legislature has demonstrated that it knows how to preempt with the [Kansas Corporation Commission]. Its failure to do so in our scenario strongly suggests it did not so intend.").

Further supporting this reasoning, we note the Legislature in K.S.A. 2018 Supp. 20-3020(a)(6) chose to retain language from the nominating commission statutes providing an appointment is "effective at the time it is made" when the office is vacant. See K.S.A. 20-3009(b) (repealed effective July 1, 2013). This language further cuts against reading a withdrawal power into the statute.

In Tucker v. Watkins , 737 So. 2d 443, 444 (Ala. 1999), the Alabama Supreme Court examined similar language in a statute governing appointments to a state university's board of trustees. The court noted,

"The adjective 'effective,' as it is used in the phrase '[a]ll appointments shall be effective until,' is defined as '[o]perative; in effect,' The American Heritage Dictionary of the English Language 416 (1969), or '[a]ctually in operation or in force, functioning.' The Random House Dictionary of the English Language 454 (1973)." Tucker , 737 So. 2d at 445.

The Governor, of course, contends she has the right to make a "follow-up" appointment after withdrawing the previous one, arguing it would be "unreasonable and absurd to require a governor to subject the government and the Senate to a destructive, wasteful confirmation process." This is basically a policy argument favoring why she should have that power. But the statute's plain language trumps the preferred policies advocated by the parties. State v. Spencer Gifts , 304 Kan. 755, 761, 374 P.3d 680 (2016). And history demonstrates the non confirmation process when the Governor withdraws support for a previously made appointment is workable. See Leek , 217 Kan. at 788-92, 539 P.2d 304. For these reasons, we need not address the Senate's legal fiction argument that the Governor somehow failed to make the appointment within her initial 60-day window by withdrawing the appointment, i.e., retroactively nullifying an act after it became effective.

Finally, "we must construe statutes to avoid unreasonable or absurd results ...." Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 918, 296 P.3d 1106 (2013). Having rejected the proposed statutory interpretations advanced by both the Governor and the Senate, we observe that if the Legislature intended K.S.A. 75-4315b to apply in these circumstances, we would end up at the absurd result proposed by the Attorney General, i.e., under these circumstances there is no appointing authority and the vacancy on the Court of Appeals must remain in perpetuity or until there is a legislative fix. Because we presume the Legislature did not intend to reach such absurd results, we are further persuaded it did not, in fact, intend K.S.A. 75-4315b to apply to Court of Appeals vacancies.

And once the possibility of a withdrawn appointment is out of the picture, K.S.A. 2018 Supp. 20-3020 becomes a seamless whole. By avoiding the result proposed by the Attorney General, our interpretation of K.S.A. 2018 Supp. 20-3020 actually furthers the Legislature's policy goal of protecting the process of filling appellate court vacancies from gridlock. The K.S.A. 2018 Supp. 20-3020 framework avoids that by providing strict deadlines to act and alternative methods for appointments if one actor in the process fails to act. The policy choice of not having the possibility of a withdrawn appointment reasonably protects the process from the potential for unnecessary delay and political gamesmanship.

This court ordinarily will not read a statute so as to add that which is not readily found in the language. See Nauheim , 309 Kan. at 150, 432 P.3d 647 ; Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs. , 290 Kan. 446, 464, 228 P.3d 403 (2010) ; GT, Kansas, L.L.C. v. Riley County Register of Deeds , 271 Kan. 311, 316, 22 P.3d 600 (2001). We will not do so in this case, even if the policy reasons are seductive.

We hold K.S.A. 75-4315b could not empower the Governor to withdraw Judge Jack's appointment. Under K.S.A. 2018 Supp. 20-3020 as written, we conclude the Governor is powerless to withdraw a Court of Appeals appointment once it is made.

Does Judge Jack's letter have any legal effect?

Under the statute, an appointment can fail in only one way: if the Senate holds a "vote to consent ... not later than 60 days after such appointment is received" and "a majority of the senate does not vote to consent to the appointment ...." K.S.A. 2018 Supp. 20-3020(b). On its face, this contemplates an actual vote because the Senate is deemed to have consented if it "fails to vote on an appointment" within the time limit. K.S.A. 2018 Supp. 20-3020(b). And in determining what happens after the Senate "does not vote to consent," the statute provides, "[T]he governor, within 60 days after the senate vote on the previous appointee, shall appoint another person ...." (Emphasis added.) K.S.A. 2018 Supp. 20-3020(b).

The statute contemplates that the Governor make a new appointment only "after the senate vote." The most natural reading of the statute is that every subsequent appointment for a vacancy requires a negative vote on the previous appointee. And, as with the Governor's power to withdraw, the Legislature's omission of a provision for appointee withdrawal is significant because it chose not to provide for it in K.S.A. 2018 Supp. 20-3020, even though it contemplated that scenario in the nominating-commission era statutes. See K.S.A. 20-3008 ("If a nominee dies or requests in writing that his or her name be withdrawn, the commission shall nominate another person to replace him or her.").

Because nothing in the statute envisions the appointee relieving the Senate of its power to vote or its option to acquiesce, Judge Jack's withdrawal serves only the practical purpose of clearing the path for a speedy and uncontentious vote not to confirm him. See Leek , 217 Kan. at 788, 539 P.2d 304 (noting after Governor requested that appointee not be confirmed, the appointment was set as special order of business two days later without a committee referral and rejected on a " 'bulk roll call' " vote).

Conclusion

We hold the Governor appointed Judge Jack to fill the Court of Appeals vacancy created by Judge McAnany's retirement, and the Senate has received that appointment. This effectively began the statutory 60-day Senate confirmation process under K.S.A. 2018 Supp. 20-3020(b). Under these facts, neither the Governor nor the appointee possessed statutory authority to withdraw the appointment and stop that process. Accordingly, the Governor's new appointment is ineffective because there may be only one appointee at a time. Because of this, the second appointment is treated as a matter of law as if it never happened.

Nuss, C.J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 121,061 vice Chief Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.


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