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    Michael CREECY, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
    No. 117,035
    Supreme Court of Kansas.
    Opinion filed August 23, 2019
    Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellant.
    Dwight R. Carswell, assistant solicitor general, argued the cause, and Adam D. King, of Kansas Department of Revenue, Bryan C. Clark, assistant solicitor general, Toby Crouse, solicitor general, and Jeffrey A. Chanay, chief deputy attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

Michael Creecy seeks our review of the Court of Appeals' decision to affirm the district court's upholding the suspension of Creecy's driver's license by the Kansas Department of Revenue (KDR). Creecy first challenges the constitutionality of K.S.A. 2014 Supp. 8-1020(d)(2), which requires a motorist whose driver's license has been confiscated by a law enforcement officer as a consequence of a driving under the influence (DUI) arrest to pay a $50 fee in order to be granted an administrative hearing on the propriety of the license deprivation. Further, Creecy argues his driver's license suspension must be reversed because: (1) the arresting officer failed to comply with the personal service requirements of K.S.A. 2014 Supp. 8-1001(c) ; (2) Creecy's inability to complete the breath test due to a medical condition did not qualify as a test refusal for driver's license suspension purposes; and (3) the arresting officer failed to comply with the statutorily mandated implied consent advisories.

We agree with Creecy's contention that K.S.A. 2014 Supp. 8-1020(d)(2)'s monetary requirement to obtain a due process hearing, without any exception for the indigency of the licensee, renders that provision facially unconstitutional. The remedy, however, is not a restoration of Creecy's driving privileges, but rather a refund of the $50 fee. Because we find no merit to Creecy's other claims, we affirm the suspension of his driver's license.

FACTUAL AND PROCEDURAL OVERVIEW

There is no dispute that police had probable cause to arrest Creecy for DUI in October 2014. After being taken to the Gardner Police Department for processing and testing, Creecy began to have difficulty breathing. Officer David Rollf called emergency medical personnel, who attended to Creecy and administered oxygen. Creecy appeared to recover and declined to go to the hospital.

Officer Rollf began the procedure to conduct a postarrest test for blood alcohol content (BAC) with the Intoxilyzer 8000 breath testing machine. Officer Rollf gave Creecy the implied consent advisories required by K.S.A. 2014 Supp. 8-1001(k), both orally and using the DC-70 written form, advising Creecy of his rights and potential penalties for failure or refusal.

Creecy attempted to provide a breath sample twice, but he was unable to provide breath in a sufficient amount for the machine to register a successful test. During the attempts, he displayed outward physical signs that he was having difficulty providing the breath samples. After the second unsuccessful attempt, Officer Rollf told Creecy that his failure to provide a measurable breath sample was considered a test refusal. Officer Rollf completed the Officer's Certification and Notice of Suspension form-Form DC-27-notifying Creecy that his license was being administratively suspended for refusal of a BAC test, handed it to Creecy, and prepared to take Creecy to the Johnson County Jail.

As Creecy stood up he had another medical episode, falling to the floor and jerking violently. Medical personnel again attended to Creecy, and he regained consciousness after approximately one minute. Eventually Creecy was put on an ambulance and taken to a hospital. Officer Rollf told Creecy that he would give him a ticket, instead of taking him to jail, and that all of his paperwork, including the DC-27 form, would be with Creecy's belongings.

Creecy requested an administrative hearing, pursuant to K.S.A. 2014 Supp. 8-1020(a)(1), to challenge the suspension of his driver's license. Creecy paid a $50 administrative fee, required by K.S.A. 2014 Supp. 8-1020(d)(2), to obtain administrative review. The Kansas Department of Revenue (KDR) administrative law judge affirmed the suspension, and Creecy petitioned for de novo review in Johnson County District Court. After a hearing in June 2016, Johnson County District Judge James Vano affirmed the suspension.

Creecy timely appealed the district court's decision, arguing: (1) Creecy did not refuse the breath test because his failure to complete the test was caused by a medical condition; (2) any refusal was immediately rescinded; (3) the implied consent advisories did not substantially comply with the applicable statutes; (4) Creecy did not receive personal service of the DC-27 certification and notice; and (5) the requirement to pay a $50 fee per K.S.A. 2014 Supp. 8-1020(d)(2) to get an administrative hearing is unconstitutional.

The Court of Appeals affirmed the district court. Creecy v. Kansas Dept. of Revenue , No. 117,035, 2017 WL 6397038, at *7 (Kan. App. 2017) (unpublished opinion). The panel accepted the district court's analysis of the evidence that refuted Creecy's claim that he was having an asthma attack that prevented completion of the breath test and determined the evidence did not support that Creecy asked for a third test attempt. 2017 WL 6397038, at *2-3. It determined that the DC-70 form substantially complied with the law despite "tend[ing] towards the obscure." 2017 WL 6397038, at *4. Applying a substantial compliance test, the panel opined that the DC-27 was personally served on Creecy. 2017 WL 6397038, at *4-5. Finally, the panel determined that the $50 fee was not categorically unconstitutional, albeit the panel expressly indicated that "[t]he constitutionality of the lack of a bypass for indigents is not before us." 2017 WL 6397038, at *5-7.

In his petition for review, Creecy does not raise the issue of rescission of test refusal, accordingly that issue is not considered herein. Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53).

CONSTITUTIONALITY OF MANDATORY FEE FOR DUE PROCESS HEARING

Creecy first challenges K.S.A. 2014 Supp. 8-1020(d)(2)'s mandatory fee as an unconstitutional barrier to the exercise of a driver's license holder's right to due process upon the government's seizure of that property. Before addressing that question, we pause to review Kansas' implied consent statutory scheme, which will be relevant to all of Creecy's issues.

Pursuant to K.S.A. 2014 Supp. 8-1001(a) any person operating a vehicle in this State is deemed to have given consent to submit to testing to determine the presence of alcohol or drugs. Among other things, an officer is required to request that a person submit to a test after the driver has been arrested or taken into custody for DUI. K.S.A. 2014 Supp. 8-1001(b)(1)(A).

This postarrest evidentiary test is distinguished from a preliminary breath test (PBT), which may be used to help an officer determine whether to make a DUI arrest, and which has limited admissibility in later proceedings. K.S.A. 2014 Supp. 8-1012(d). The definition of a postarrest test refusal specifically excludes refusal to submit to a PBT. K.S.A. 2014 Supp. 8-1013(i).

Before administering the postarrest test, an officer must give oral and written advisories of the various rights and notices of the implied consent law. K.S.A. 2014 Supp. 8-1001(k). The written form is known as a DC-70.

If a person refuses to submit to a test, or fails to complete one, his or her driver's license will be suspended for one year. K.S.A. 2014 Supp. 8-1001(k)(5). A person's inability to successfully complete a test is considered a test refusal unless the person can show that the failure was due to a medical condition not caused by drugs or alcohol. K.S.A. 2014 Supp. 8-1001(q).

In the event of a test refusal, an officer must prepare an officer's certification of test refusal and notice of license suspension. K.S.A. 2014 Supp. 8-1002. The written form is known as a DC-27. The officer must provide personal service of the DC-27 to the motorist. K.S.A. 2014 Supp. 8-1002(c).

A person whose license has been suspended may request an administrative hearing within 14 days of service of the DC-27. K.S.A. 2014 Supp. 8-1020(a)(1). The person is required to pay a $50 fee for the hearing. K.S.A. 2014 Supp. 8-1020(d)(2). There is no provision for a waiver of the fee or for any delay in the payment of the fee in the event the person is indigent and there is no mechanism for a refund in the event the law enforcement officer wrongfully deprived the person of his or her license. Specifically, the fee provision states:

"The division shall charge a fee of $50 for a hearing, to be paid within the time period for making a timely request for a hearing, whether held by telephone or in person, to be applied by the division for administrative costs to conduct the hearing. The division shall remit all hearing fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the division of vehicles operating fund. The hearing fee established in this section shall be the only fee collected or moneys in the nature of a fee collected for such hearing. Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee." K.S.A. 2014 Supp. 8-1020(d)(2).

After the administrative hearing order, a person may request de novo review of that order by the district court. K.S.A. 2014 Supp. 8-1020(o). Review is in accordance with the implied consent statutes and the Kansas Judicial Review Act (KJRA). K.S.A. 2014 Supp. 8-1020(p).

(a) Standing

As a preliminary matter, we address the KDR's assertion that Creecy does not have standing to challenge the statute. The agency argues that Creecy paid the fee and had an administrative hearing, and, therefore, he suffered no injury by the statute's failure to contain any bypass provision for indigent licensees. Creecy argues that the act of charging any fee as a precondition to gaining administrative review violates due process and is thus unconstitutional.

Standard of Review

The requirement that a party have standing is a component of subject matter jurisdiction, which may be raised at any time, including upon the court's own motion. Sierra Club v. Moser , 298 Kan. 22, 29, 310 P.3d 360 (2013). Jurisdiction may not be waived. Friedman v. Kansas State Bd. of Healing Arts , 287 Kan. 749, 752, 199 P.3d 781 (2009). Standing is a question of law subject to unlimited review. Sierra Club , 298 Kan. at 29, 310 P.3d 360 ; Mid-Continent Specialists, Inc. v. Capital Homes , 279 Kan. 178, 185, 106 P.3d 483 (2005).

Analysis

The requirement that a party must have standing is the first factor in the requirement that a matter must be justiciable-the party must present an actual case or controversy under the judicial power clause of Article 3, § 1 of the Kansas Constitution. Sierra Club , 298 Kan. at 29, 310 P.3d 360 ; State ex rel. Morrison v. Sebelius , 285 Kan. 875, 895-96, 179 P.3d 366 (2008). See also Solomon v. State , 303 Kan. 512, 521, 364 P.3d 536 (2015) (recognizing that under Kansas law, the case or controversy requirement means that (1) a party must have standing; (2) the issue cannot be moot; (3) the issue must be ripe; and (4) the issue cannot present a political question). A party without standing is essentially asking a court to render an advisory opinion, which would violate the separation of powers doctrine embodied in the Kansas constitutional framework. Board of Sumner County Comm'rs v. Bremby , 286 Kan. 745, 750, 189 P.3d 494 (2008) ; Sebelius , 285 Kan. at 898, 179 P.3d 366.

Review of a KDR administrative driver's license suspension falls within the purview of the KJRA. K.S.A. 2014 Supp. 8-1020(p). Therefore, a party must show that he or she has standing both under the statutory provisions of the KJRA and traditional, common-law standing. In re Adoption of T.M.M.H. , 307 Kan. 902, 908, 416 P.3d 999 (2018) ; Bremby , 286 Kan. at 750, 189 P.3d 494 ; Families Against Corporate Takeover v. Mitchell , 268 Kan. 803, 807, 1 P.3d 884 (2000) ( FACT ); City of Derby v. State ex rel. Jordan , No. 117165, 2018 WL 3673253, at * 2 (Kan. App. 2018) (unpublished opinion).

Statutory standing

K.S.A. 77-611 provides:

"The following persons have standing to obtain judicial review of final or nonfinal agency action:
"(a) A person to whom the agency action is specifically directed;
"(b) a person who was a party to the agency proceedings that led to the agency action;
"(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
"(d) a person eligible for standing under another provision of law."

KDR does not argue that Creecy lacks standing under this statute. Obviously, subsections (a) and (b) encompass Creecy.

Traditional standing

Even if a party has statutory standing, the party must also have traditional or common-law standing to challenge a statute's constitutionality. T.M.M.H. , 307 Kan. at 908, 416 P.3d 999. In order to have traditional standing, a person must "show a cognizable injury and establish a causal connection between the injury and the challenged conduct." Sierra Club , 298 Kan. at 33, 310 P.3d 360 ; see Bremby , 286 Kan. at 761, 189 P.3d 494 ; Harrison v. Long , 241 Kan. 174, 176-77, 734 P.2d 1155 (1987). In order to show a cognizable injury, " 'a party must establish a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct.' " Gannon v. State , 298 Kan. 1107, 1123, 319 P.3d 1196 (2014) (quoting Sierra Club , 298 Kan. at 33, 310 P.3d 360 ).

KDR argues essentially that Creecy has no standing because he is challenging the statute's constitutionality on behalf of hypothetical indigent third parties and that he personally was not harmed because he paid the fee and received his hearing. But that is not the question presented. Creecy is challenging the facial constitutionality of the statute because he argues that it is unconstitutional to charge a fee as a precondition to obtaining due process of law in the form of administrative review. Under this argument, it would make no difference whether Creecy was wealthy or a pauper-the harm suffered is measured by the barrier to due process, and not measured by the impact it had on his pocketbook.

Moreover, the fact that Creecy paid the fee and obtained the administrative hearing does not, as a matter of law, negate that the fee caused a cognizable injury. Given the importance of a driver's license to daily life, one can perceive a circumstance in which a licensee would forego paying for other essentials in order to pay the fee, resulting in a cognizable injury.

Accordingly, we find that Creecy has standing to challenge the constitutionality of K.S.A. 2014 Supp. 8-1020(d)(2).

(b) Merits of Constitutional Challenge

Standard of Review

The constitutionality of a statute is a matter of law subject to unlimited review. Hall v. Dillon Companies, Inc. , 286 Kan. 777, 789, 189 P.3d 508 (2008). An appellate court will endeavor to find a reasonable way in which to construe a statute as constitutionally valid. 286 Kan. at 789, 189 P.3d 508. See KNEA v. State , 305 Kan. 739, 749-50, 387 P.3d 795 (2017) ; Hoesli v. Triplett, Inc. , 303 Kan. 358, 369, 361 P.3d 504 (2015) ; Leavenworth County v. Miller , 7 Kan. 479, 498-99 (1871). The burden is on the party asserting unconstitutionality. Barrett v. U.S.D. No. 259 , 272 Kan. 250, 256, 32 P.3d 1156 (2001).

Analysis

Creecy argues that the $50 fee requirement of K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face. He claims that he was entitled to an administrative review of his driver's license suspension as a matter of right and that a fee in any amount is a violation of due process.

A civil litigant's right to due process is grounded in the Fifth and Fourteenth Amendments of the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights. In re J.D.C. , 284 Kan. 155, 166, 159 P.3d 974 (2007). Due process may refer to substantive due process, which protects individuals from arbitrary state action, or procedural due process, which at its core protects the opportunity to be heard in a meaningful time and manner. State v. Robinson , 303 Kan. 11, 175, 363 P.3d 875 (2015) (substantive due process), disapproved of on other grounds by State v. Cheever , 306 Kan. 760, 402 P.3d 1126 (2017) ; J.D.C. , 284 Kan. at 166, 159 P.3d 974 (procedural due process) (citing Mathews v. Eldridge , 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 [1976] ).

In determining whether administrative procedural protections satisfy due process requirements, under the factors set forth in Mathews , a court considers (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest; and (3) the State's interest in the procedures used. 424 U.S. at 334-35, 96 S.Ct. 893. The United States Supreme Court has applied this test to driver's license suspension proceedings. Mackey v. Montrym , 443 U.S. 1, 10, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979).

There is no dispute that a driver's license is some type of interest which is entitled to procedural due process protections before revocation or suspension. Kempke v. Kansas Dept. of Revenue , 281 Kan. 770, 776, 133 P.3d 104 (2006). This court has often characterized a driver's license as a "privilege, not a right." Martin v. Kansas Dept. of Revenue , 285 Kan. 625, 632-33, 176 P.3d 938 (2008) (driver's license is a regulated privilege), overruled on other grounds by City of Atwood v. Pianalto , 301 Kan. 1008, 350 P.3d 1048 (2015) ; Kempke , 281 Kan. at 799, 133 P.3d 104 (administrative hearing plus de novo district court review affords due process protections to driving privileges); State v. Heironimus , 262 Kan. 796, 803, 941 P.2d 1356 (1997) ("We consider possession of a driver's license a regulated privilege protected by due process but not an inherent fundamental right."); Standish v. Department of Revenue , 235 Kan. 900, 904, 683 P.2d 1276 (1984) (right to drive vehicle on public streets is not a natural right but a privilege, subject to reasonable regulation). In other words, a person is not entitled to a driver's license, but once a person has a license, he or she is entitled to due process before it is taken away-Supreme Court and Kansas caselaw establish that driver's license suspension proceedings require procedural due process. E.g., Bell v. Burson , 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) ("This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege.' "); Kempke , 281 Kan. at 776, 133 P.3d 104 ("A person's entitlement to due process in drivers' license suspension cases is well-settled."). The relevant inquiry is what amount of process is due.

The dispute here is not whether Creecy was entitled to due process or even whether Creecy received the hearing to which he was entitled. The dispute is whether his due process rights were violated by the imposition of a nonrefundable $50 fee before obtaining administrative review.

The imposition of a fee for administrative review is not, in itself, a violation of due process. The United States Supreme Court has long held that courts may enact "reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations, or, in an appropriate case, filing fees . [Citations omitted]." (Emphasis added.) Logan v. Zimmerman Brush Co. , 455 U.S. 422, 437, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982).

However, where a fundamental right or interest is implicated, allowances may need to be made for indigent litigants. For example, a statute imposing a fee on parties seeking divorce proceedings, which had no provision for indigency, was deemed a violation of due process because of the fundamental nature of the marriage relationship. Boddie v. Connecticut , 401 U.S. 371, 382-83, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). Likewise, recognizing the fundamental interest at stake in parental rights' termination cases, the State may not bar access to an appeal of termination of parental rights based on ability to pay. M.L.B. v. S.L.J. , 519 U.S. 102, 107, 124, 128, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996).

In other instances, when fundamental rights are not implicated, the assessment of a fee without a provision for indigency or waiver has been upheld. See, e.g., United States v. Kras , 409 U.S. 434, 446, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973) (upholding filing fee imposed as precondition to being granted bankruptcy discharge because "[t]here is no constitutional right to obtain a discharge of one's debts in bankruptcy"); see also Ortwein v. Schwab , 410 U.S. 656, 658-60, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (upholding $25 fee for welfare beneficiaries seeking appellate review of reductions in their benefits). Pointedly, however, the Ortwein Court noted that the appellants had already received an agency review before the appeal, suggesting that a person only gets one due process proceeding as a matter of right. 410 U.S. at 659, 93 S.Ct. 1172.

Even in criminal matters, where the right to counsel is not only a matter of due process but also guaranteed under the Sixth Amendment, an assessment of fees may be permissible. Although not strictly analogous, because it involves fees for the cost of representation as opposed to fees for the cost of the court hearing itself, in State v. Casady , 289 Kan. 150, 210 P.3d 113 (2009), this court considered a constitutional due process challenge to K.S.A. 22-4529, the statute mandating the imposition of the application fee for the Kansas Board of Indigents' Defense Services (BIDS). The court found that the fee was constitutional, even though the underlying right implicated was one as fundamental as an indigent defendant's right to effective assistance of counsel, in large part because the statute included safeguards to protect the indigent's right to counsel. 289 Kan. at 158, 210 P.3d 113. The statute expressly included a mechanism by which a court had discretion to grant a waiver of the $100 application fee if the imposition would " 'impose manifest hardship.' " 289 Kan. at 152, 210 P.3d 113. See also State v. Robinson , 281 Kan. 538, 547-48, 132 P.3d 934 (2006) (sentencing court's failure to assess validity of BIDS fees did not violate due process).

KDR draws our attention to appellate decisions from sister jurisdictions where courts have upheld the imposition of a fee to obtain a review of driver's license suspensions. Both Washington and California courts have upheld a fee charged for administrative review of a driver's license suspension. Didlake v. Washington State , 186 Wash. App. 417, 426, 345 P.3d 43 (2015) ; Nick v. Department of Motor Vehicles , 12 Cal. App. 4th 1407, 1416-17, 16 Cal. Rptr. 2d 305 (1993) (required payment of witness fee in order to compel officer to testify at license suspension hearing did not violate due process). A distinguishing feature of both cases, however, is that the applicable state statutes did include provisions for indigency and the challenges came from nonindigent litigants. In essence, the decisions determined there was no due process violation as applied to the challengers.

In contrast, the Kansas scheme makes no provision for indigency and a court has no discretion to waive the fee or to provide for a delayed payment in order for a licensee to exercise his or her right to procedural due process. On its face, the statute constructs a barrier to due process that is potentially insurmountable. "Where an act of the legislature or a portion thereof is clearly unconstitutional, it is the duty of the courts to so declare and to hold the unconstitutional provision or provisions null and void. State v. Barrett, 27 Kan. 213, Syl. ¶ 2 (1882)." State v. Cody , 272 Kan. 564, 566, 35 P.3d 800 (2001).

A person does not have a fundamental right to possess a driver's license. But once a person does possess a driver's license, that person has an interest in the license which the State cannot take away without providing procedural due process. Such due process rights should not depend upon the depth of the licensee's pockets. We therefore hold that the $50 fee under K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face, and, consequently, that provision is null and void.

Nevertheless, the facial unconstitutionality of one provision in a statute does not necessarily make the entire statute null and void. Cf. State v. Gould , 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801 (2001) (facial unconstitutionality of scheme for imposing upward departure sentences in K.S.A. 2000 Supp. 21-4716 did not affect downward departure provisions in the same statute). Consequently, Creecy's remedy in this case is not the restoration of his driving privileges, but rather the refund of the $50 fee.

CREECY RECEIVED PERSONAL SERVICE OF THE NOTICE OF SUSPENSION

Next, Creecy argues that he did not receive personal service of the DC-27 form, which is the officer's certification of a test refusal and notice of license suspension. Creecy argues that Officer Rollf shared the DC-27 with him, but took it back. As KDR argued, however, not only did Creecy retain possession of the DC-27 for a period of time in the police station, the DC-27 was placed with Creecy's other belongings when Creecy was taken by ambulance to the hospital.

Standard of Review

Factual findings are reviewed for substantial competent evidence; questions of law are reviewed de novo. Gannon, 298 Kan. at 1175-76, 319 P.3d 1196 ; Fisher v. DeCarvalho , 298 Kan. 482, 488, 314 P.3d 214 (2013) (whether statutory provisions regarding personal service were followed is reviewed de novo); Gudenkauf v. Kansas Dept. of Revenue , 35 Kan. App. 2d 682, 683, 133 P.3d 838 (2006).

Analysis

When a motorist refuses or fails to complete a breath test, K.S.A. 2014 Supp. 8-1002(c) spells out the procedure for an officer to carry out the administrative driver's licenses suspension:

"When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met ... the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles."

Personal service is defined in the Kansas Code of Civil Procedure as "delivering or offering to deliver a copy of the process and petition or other document to the person to be served." K.S.A. 2014 Supp. 60-303(d)(1)(A). The Code of Civil Procedure applies because under K.S.A. 2014 Supp. 8-1020(p), review of driver's license suspension proceedings is controlled by the KJRA unless otherwise specifically stated, and under K.S.A. 77-623 decisions on petitions for review under KJRA are reviewable by appellate courts as in other civil cases.

Creecy argues that substantial compliance is the incorrect standard for evaluating whether personal service occurred and that strict compliance is required per Anderson v. Kansas Dept. of Revenue , 18 Kan. App. 2d 347, 853 P.2d 69 (1993). In Anderson , the officer could not remember personally serving the motorist with the DC-27, and the motorist testified that he did not personally receive the DC-27. The DC-27 was evidently placed in the motorist's belongings, which he received upon being released from custody. The panel held that this was not sufficient personal service under the statute in effect at the time and that "in Kansas ... a 'bright line' rule requires strict adherence to the legislative mandate of personal service." 18 Kan. App. 2d at 355, 853 P.2d 69.

A later panel looked at subsequent legislative amendments to the implied consent statutory scheme, particularly K.S.A. 2007 Supp. 8-1001(v), which directed that " '[t]his act is remedial law and shall be liberally construed to promote public health, safety and welfare' " and held that the strict compliance standard of Anderson had been superseded by legislative mandate and that therefore substantial compliance with the service requirements of K.S.A. 2007 Supp. 8-1002(c) was sufficient. Byrd v. Kansas Dept. of Revenue , 43 Kan. App. 2d 145, 150, 154, 221 P.3d 1168 (2010).

Upon reviewing Byrd , this court did not answer the question of whether strict or substantial compliance governs personal service of a DC-27 form, because the uncontroverted evidence established that the DC-27 notice was mailed to the motorist in accordance with the terms of the statute regardless of whether a strict or substantial compliance standard was used. Byrd v. Kansas Dept. of Revenue , 295 Kan. 900, 907, 287 P.3d 232 (2012). In Byrd , the facts showed that the DC-27 was mailed to the motorist, not by the certifying officer, but by an administrative assistant who was given the DC-27 by the officer after he completed it. There was no dispute that the form was mailed to the motorist, nor any dispute that the motorist received the form.

As in Byrd , we need not decide whether strict or substantial compliance applies, because Creecy was personally served with the DC-27 notice. Officer Rollf handed the form directly to Creecy, who possessed and perused the document. Only later was it placed with his other belongings. Moreover, Creecy used the form to timely request a hearing. Creecy's complaint about the service of the DC-27 is simply unavailing.

CREECY'S FAILURE TO COMPLETE A BREATH TEST WAS A TEST REFUSAL

Creecy argues that his failure to provide a sufficient breath sample was due to a medical condition which does not qualify as a test refusal as defined by K.S.A. 2014 Supp. 8-1013(i). The district court found that Creecy did not meet his burden to show that his failure to successfully complete a breath test was due to medical reasons, and the Court of Appeals agreed.

Standard of Review

A district court's factual findings in a license suspension matter are reviewed for substantial competent evidence. Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012) ; Call v. Kansas Dept. of Revenue , 17 Kan. App. 2d 79, 82, 831 P.2d 970 (1992) (district court's findings regarding test refusal reviewed for substantial competent evidence). Creecy does not dispute the Court of Appeals' summary of the facts. See State v. Brown , 272 Kan. 843, 845, 35 P.3d 910 (2001) (substantial competent evidence standard used in cases with stipulated facts when the record includes conflicting testimony).

Substantial competent evidence is " 'evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.' "

Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 73, 350 P.3d 1071 (2015). In reviewing a court's findings, an appellate court will not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Mitchell v. Kansas Dept. of Revenue , 32 Kan. App. 2d 298, 301, 81 P.3d 1258 (2004) (citing State ex rel. Stovall v. Meneley , 271 Kan. 355, 387, 22 P.3d 124 [2001] ).

Analysis

A test refusal is defined as "a person's failure to submit to or complete any test of the person's blood, breath, urine or other bodily substance, other than a preliminary screening test, in accordance with this act, and includes refusal of any such test on a military reservation." K.S.A. 2014 Supp. 8-1013(i). Creecy bore the burden of showing the district court that his failure to complete the breath test was due to a medical condition. See K.S.A. 2014 Supp. 8-1001(q) ("Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs." [Emphasis added.] ). See Call , 17 Kan. App. 2d at 84, 831 P.2d 970.

There is no dispute that Creecy experienced an episode at the police station that required medical attention. KDR does not allege that Creecy was malingering. In addition to testimony, video from the police station shows both incidents from that evening. No one disputes that Creecy was taken from the police station to the hospital.

But there was no medical evidence submitted to the district court as to the nature of these incidents. Officer Rollf offered his opinion that the episode was in the nature of a panic attack, but Officer Rollf was not testifying as a medical expert. Creecy, testifying on his own behalf, offered that he was a lifelong sufferer of asthma, and he provided a certified letter from a physician regarding his asthma diagnosis. But the district court found no evidence that the particular episode at the police station was an asthma attack or that Creecy was medically incapable of providing a sufficient breath sample. Cf. Call , 17 Kan. App. 2d at 83-84, 831 P.2d 970 (motorist's stipulation that she blew as hard as she could insufficient to establish failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs).

It was Creecy's burden to show the causal connection between his prior asthma diagnosis and his inability to successfully complete the breath tests that Officer Rollf administered. He failed to carry that burden and the district court did not err in finding a test refusal.

THE IMPLIED CONSENT ADVISORIES COMPLIED WITH STATUTORY REQUIREMENTS

Creecy argues that the written and oral implied consent advisories in this case did not comply with the applicable statutes, to-wit: K.S.A. 2014 Supp. 8-1001(k)(4)(A) and K.S.A. 2014 Supp. 8-1013(i).

K.S.A. 2014 Supp. 8-1001(k)(4)(A) provides:

"(k) Before a test or tests are administered under this section, the person shall be given oral and written notice that:
....
(4) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence, if such person has:
(A) Any prior test refusal as defined in K.S.A. 8-1013, and amendments thereto, which occurred: (i) On or after July 1, 2001; and (ii) when such person was 18 years of age or older."

"Test refusal" is defined in K.S.A. 2014 Supp. 8-1013(i) as "a person's failure to submit to or complete any test of the person's blood, breath, urine or other bodily substances, other than a preliminary screening test ...." (Emphasis added.)

The DC-70 used in this case has a revision date of July 2013. The relevant language on the form states:

"4. If you refuse to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence if you have a prior refusal for an evidentiary test for alcohol or drugs or a prior conviction or diversion for DUI or driving a commercial motor vehicle with an alcohol content of .04 or more, and such prior refusal or conviction occurred on or after July 1, 2001, and when you were 18 years of age or older."

Creecy argues that the DC-70 did not define a prior test refusal to exclude the PBT from the definition of prior tests, giving the impression that even a prior refusal of a PBT would make him subject to a criminal sanction.

Standard of Review

Whether an implied consent advisory complies with statutory requirements and provides sufficient notice is a question of statutory interpretation, which is a question law subject to unlimited review. Shrader v. Kansas Dept. of Revenue , 296 Kan. 3, 6, 290 P.3d 549 (2012) ; State v. Dale , 293 Kan. 660, 662, 267 P.3d 743 (2011).

Analysis

An implied consent advisory need not mirror the statutory language; substantial compliance with the statute is usually sufficient. Barnhart v. Kansas Dept. of Revenue , 243 Kan. 209, 213, 755 P.2d 1337 (1988). Substantial compliance is construed to mean that the notice given must be sufficient to advise the party of the essentials of the statute. 243 Kan. at 213, 755 P.2d 1337 ; see Fisher , 298 Kan. at 490, 314 P.3d 214.

In Barnhart , the implied consent notice at issue said that a person who submits to testing " 'may have additional testing done as soon as possible and as available.' " 243 Kan. at 211, 755 P.2d 1337. The motorist argued that this did not comply with the statutory language in effect at the time, which stated that a person should have additional testing done as soon as possible. 243 Kan. at 211, 755 P.2d 1337. This court held that, although it would have been preferable if the implied consent advisory forms mirrored the statutory language, in that case the advisory substantially complied with the statute. 243 Kan. at 213-14, 755 P.2d 1337. Moreover, this court noted that the motorist's refusal in that particular case had nothing to do with the prospect of additional testing; the motorist refused because he was under stress and thought his constitutional rights were being violated. 243 Kan. at 213, 755 P.2d 1337.

Creecy draws support from State v. Gross , No. 112,229, 2015 WL 1000175, at *3-4 (Kan. App. 2015) (unpublished opinion), and Meigs v. Kansas Dept. of Revenue , 251 Kan. 677, 681-82, 840 P.2d 448 (1992), which both found that the implied consent advisories used did not sufficiently advise the person of his or her rights. Gross in particular found that the DC-70 form in question failed to draw a distinction between a prior refusal to consent to a PBT and a refusal of an evidentiary test. 2015 WL 1000175, at *4.

Both Gross and Meigs dealt with different versions of the DC-70. Here, the DC-70 form with the July 2013 revision is nearly identical to the wording of K.S.A. 2014 Supp. 8-1001(k)(4)(A), but it also incorporates the definition of "test refusal" in K.S.A. 2014 Supp. 8-1013(i) by specifically referring to an evidentiary test. The panel in this case relied on an earlier unpublished Court of Appeals opinion, Chalfant v. Kansas Dept. of Revenue , No. 112,863, 2015 WL 6620554, at *2 (Kan. App. 2015) (unpublished opinion), that held that the reference to an "evidentiary test" was sufficient to let the motorist know that PBTs were not part of the calculus. The panel recognized that Creecy's argument is not so much a substantial compliance argument as it is a statutory vagueness argument. The language of the DC-70 used in this case nearly mirrors the statutory language; Creecy's argument really concerns whether the statute itself is clear. The panel found:

"Even if the term were otherwise less than crystal clear, the DC-70 still substantially conformed to the law. The form's language isn't so much incorrect as it tends toward the obscure. ... If he were complaining that the language can't be characterized as plain English, he would have a valid point, although not necessarily one with any legal significance in this case." Creecy , 2017 WL 6397038, at *4.

We also note the under Creecy's argument, the overbroad language would induce more drivers, not less, to submit to testing, and in Creecy's case he refused testing despite the purportedly overbroad language. At any rate, we agree with the Chalfant panel that the term "evidentiary test" is sufficient to differentiate that type of test from a PBT, making the DC-70 advisories substantially compliant with the statutory language. Under Barnhart and Fisher , substantial compliance is what is required, and the language used here meets that test.

We reverse the Court of Appeals and district court on the constitutionality of K.S.A. 2014 Supp. 8-1020(d)(2) and remand with directions to refund the $50 fee. We affirm on the remaining issues.

Stegall, J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Dewayne V. HAMBRIGHT, Appellant.
    No. 115,259
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
    Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

Dewayne V. Hambright petitions this court for review of the Court of Appeals' decision that affirmed the sentencing court's imposition of an extended probation term as being a legal sentence, notwithstanding the lower court's reliance on an inapplicable statutory provision. Hambright argues that his sentence is illegal because the panel refused to apply the mandatory precedent of State v. Whitesell , 270 Kan. 259, 13 P.3d 887 (2000), which required the sentencing court to follow departure sentencing procedures to increase the statutorily recommended term of probation. We agree; Whitesell required the sentencing court to state for the record substantial and compelling reasons to depart from the presumptive duration of probation and its failure to do so resulted in an illegal sentence. Accordingly, we vacate the probation portion of Hambright's sentence and remand to the district court for resentencing.

FACTUAL AND PROCEDURAL OVERVIEW

Pursuant to a plea agreement, Hambright pled guilty to felony criminal damage to property and misdemeanor theft for events that took place on September 2, 2014. The plea agreement provided that the State would recommend the presumptive sentence of probation and restitution of $60,000. The district court followed the recommendations for probation and restitution in this case, but ordered that the probation would commence after Hambright completed his prison sentence in another case for which he was being sentenced at the same time. The total underlying period of incarceration in this case was 29 months.

The district court recognized that the "prescribed statutory period" of probation for Hambright's felony offense in this case was 24 months. But the court imposed a 36-month probation term after finding "that the welfare of the defendant w[ould] not be served by the 24-month statutory length of probation specifically due to the extremely significant amount of restitution in this case of $60,000." The district court also cited Hambright's criminal history and found it was in the public's best interest that he repay as much restitution as possible, which would require a probation term longer than 24 months. The district court established a restitution payment plan of $500 per month.

Hambright appealed to the Court of Appeals, challenging the legality of his sentence and the workability of his restitution plan. On the first issue, he argued that his sentence is illegal under K.S.A. 22-3504 because it does not conform to K.S.A. 2018 Supp. 21-6608, the statute addressing probation duration. Specifically, he pointed out that K.S.A. 2018 Supp. 21-6608(c)(1)(B) sets a 24-month recommended duration of probation for his severity level 7 felony. He asserted that the district court erroneously applied K.S.A. 2018 Supp. 21-6608(c)(5) to extend his probation term to 36 months, because that subsection only applies to severity levels 8 through 10 crimes.

Further, Hambright argued that, pursuant to Whitesell , the extended probation term was a departure sentence. Consequently, K.S.A. 2018 Supp. 21-6815(a), and K.S.A. 2018 Supp. 21-6817(a)(3), required the district court to provide notice to the parties of its intent to depart and then find substantial and compelling reasons to impose a departure sentence.

The Court of Appeals agreed with Hambright that K.S.A. 2018 Supp. 21-6608(c)(5) did not apply to his severity level 7 conviction and, therefore, that statute could not serve as the basis for the district court to increase his probation term. State v. Hambright , 53 Kan. App. 2d 355, 357, 388 P.3d 613 (2017). But the panel sua sponte held that under the plain language of K.S.A. 2018 Supp. 21-6608(c), the sentencing judge has discretion to increase the recommended probation terms set out in K.S.A. 2018 Supp. 21-6608(c)(1) and (c)(2) up to 60 months or the maximum prison sentence that could be imposed. 53 Kan. App. 2d at 361-63, 388 P.3d 613. The panel held that such a modification does not constitute a departure sentence as contemplated by K.S.A. 2018 Supp. 21-6815. 53 Kan. App. 2d at 363, 388 P.3d 613. Consequently, Hambright's sentence of 36 months' probation was not illegal. 53 Kan. App. 2d at 363-64, 388 P.3d 613.

The Court of Appeals recognized that Whitesell applied departure sentencing procedures to an increased probation term. But the panel declared that Whitesell no longer controlled due to changes in the law. Hambright , 53 Kan. App. 2d at 360-63, 388 P.3d 613. Consequently, the panel held that the sentencing judge had discretion to sentence Hambright to any term of probation from 24 months to 60 months without the necessity of making any findings and that such a sentence is not a departure. We granted Hambright's petition to review that holding.

With respect to the issue of the restitution plan's workability, the panel sided with Hambright. It determined that the court-ordered $500 per month payment was too large in relation to Hambright's monthly income and, consequently, that order was an abuse of discretion. The panel remanded to the district court to develop a workable restitution plan. 53 Kan. App. 2d at 367, 388 P.3d 613. The State did not cross-petition for our review of the panel's restitution holding, nor did the State respond in writing to Hambright's petition for review. Consequently, the panel's remand to the district court to develop a workable plan of restitution is unaffected by this decision.

LEGALITY OF THE EXTENDED TERM OF PROBATION

Under K.S.A. 22-3504, "[t]he court may correct an illegal sentence at any time," and, therefore, this court may consider an illegal sentence challenge for the first time on direct appeal. State v. Dickey , 301 Kan. 1018, 1027, 350 P.3d 1054 (2015). We have defined an "illegal sentence" under K.S.A. 22-3504 as:

"(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served." State v. Gilbert , 299 Kan. 797, 801, 326 P.3d 1060 (2014).

Hambright argues his sentence is illegal under the second option because it does not conform to K.S.A. 2018 Supp. 21-6608's provisions applicable to the permissible duration of his probation.

Even the State concedes that the district court's reliance on K.S.A. 2018 Supp. 21-6608(c)(5) for authority to extend Hambright's term of probation, as stated in the sentencing journal entry, was erroneous. That subsection simply did not apply to Hambright's sentence for a severity level 7 felony. Ordinarily, when a district court's decision is based upon an error of law, an appellate court will label that action as an abuse of discretion and remand for the district court to apply the correct legal standard. See, e.g., State v. Ardry , 295 Kan. 733, 736-37, 286 P.3d 207 (2012) (sentence based on judge's erroneous legal conclusion; remanded for resentencing under correct legal standard); see also Holt v. State , 290 Kan. 491, 503, 232 P.3d 848 (2010) (district court's ban on inmate filing motions guided by erroneous legal conclusion; remand for correction).

But here, the Court of Appeals found the journal entry to be erroneous as noncompliant with the district court's pronouncement from the bench, which the panel opined did not misapply K.S.A. 2018 Supp. 21-6608(c)(5). The panel reasoned that, although the sentencing judge's soliloquy used the particularized language contained within K.S.A. 2018 Supp. 21-6608(c)(5), it did not specifically recite the statute number. But cf. State v. Garcia , 288 Kan. 761, 766, 207 P.3d 251 (2009) ("The [sentencing] court's indistinctness, however, was clarified with its journal entry later that same day.").

But Hambright's petition for review does not challenge that aspect of the Court of Appeals' decision. Rather, he challenges the panel's overruling of our prior decision in Whitesell to hold that the increased probation term was not a departure. The panel summarized its reinterpretation of the applicable statutes in the opinion's syllabus, to-wit:

"At the time of sentencing, a district judge may, entirely within his or her discretion, increase or decrease the recommended probation terms set out in K.S.A. 2015 Supp. 21-6608(c)(1) and (c)(2) up to a maximum of 60 months. Such a modification in the probation term does not constitute a departure sentence as contemplated in K.S.A. 2015 Supp. 21-6815." Hambright , 53 Kan. App. 2d 355, 388 P.3d 613, Syl.

Hambright asks us to continue our current interpretation of the term of probation statutes, as established in Whitesell .

Standard of Review

The resolution of this case involves our interpretation of K.S.A. 2018 Supp. 21-6608 and provisions of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. Statutory interpretation is a question of law over which this court has unlimited review. State v. Urban , 291 Kan. 214, 216, 239 P.3d 837 (2010).

Analysis

Although we are dealing primarily with the meaning of subsections (c)(1) and (c)(6), for context we set forth all of the provisions of K.S.A. 2018 Supp. 21-6608(c), with emphasis added:

"(c) For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes is as follows:
(1) For nondrug crimes the recommended duration of probation is:
(A) 36 months for crimes in crime severity levels 1 through 5; and
(B) 24 months for crimes in crime severity levels 6 and 7 ;
(2) for drug crimes the recommended duration of probation is 36 months for crimes in crime severity levels 1 and 2 committed prior to July 1, 2012, and crimes in crime severity levels 1, 2 and 3 committed on or after July 1, 2012;
(3) except as provided further, in felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes, severity level 4 on the sentencing guidelines grid for drug crimes committed prior to July 1, 2012, and severity level 5 of the sentencing guidelines grid for drug crimes committed on or after July 1, 2012, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation of up to 12 months in length;
(4) in felony cases sentenced at severity level 8 on the sentencing guidelines grid for nondrug crimes, severity level 3 on the sentencing guidelines grid for drug crimes committed prior to July 1, 2012, and severity level 4 of the sentencing guidelines grid for drug crimes committed on or after July 1, 2012, and felony cases sentenced pursuant to K.S.A. 2018 Supp. 21-6824, and amendments thereto, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program, as provided under K.S.A. 75-5291 et seq., and amendments thereto, of up to 18 months in length;
(5) if the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal;
(6) except as provided in subsections (c)(7) and (c)(8), the total period in all cases shall not exceed 60 months , or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by the court at any time;
(7) if the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid; and
(8) the court may modify or extend the offender's period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term." (Emphasis added.) K.S.A. 2018 Supp. 21-6608(c).

The K.S.A. 2018 Supp. 21-6608(c) provisions germane to our discussion are that the recommended duration of probation for Hambright's crime is 24 months (subsection [c][1][B] ); that the total period of probation in this case cannot exceed 60 months (subsection [c][6] ); and that the probation may be continued as long as the $60,000 restitution order has not been paid (subsection [c][7] ).

The panel focused on the Legislature's use of the word "recommended" in K.S.A. 2018 Supp. 21-6608(c)(1). The syllabus quoted above suggests that the panel believed the Legislature used "recommended" to imbue the sentencing judge with unfettered discretion to impose any probation term-from one day up to 60 months-thereby rendering the stated 24-month term purely precatory, i.e., merely "a suggested term." See also 53 Kan. App. 2d at 361, 363, 388 P.3d 613. On the other hand, the body of the opinion declares that "the probation range in this case would be 24 months to 60 months," suggesting that the Legislature intended the stated 24-month duration of probation to be the minimum term that the sentencing court could impose. 53 Kan. App. 2d at 361, 388 P.3d 613. That inconsistency, however, does not affect our analysis here.

The panel acknowledged and discussed our prior decision in Whitesell . There, Whitesell was convicted of one count of stalking, a severity level 10 person felony. K.S.A. 21-3438(a) (Furse 1995). At that time, K.S.A. 1999 Supp. 21-4611(c)(1)(B) provided that "the recommended duration of probation" for crime severity levels 6 through 10 was 24 months. Before sentencing, the State filed a motion for a 60-month probation term. The district court agreed with Whitesell's counsel that extending probation beyond the statutorily presumed length of time was a departure, found that the State's motion met the departure requirements, and adopted the State's findings as substantial and compelling reasons to depart to a 60-month probation term. 270 Kan. at 293-94, 13 P.3d 887.

On direct appeal, this court stated that "Whitesell's conviction for stalking carried a presumptive guidelines sentence of 2 years' probation." ( Emphasis added.) 270 Kan. at 293, 13 P.3d 887. Whitesell then reviewed whether the district court had complied with the departure sentencing requirements of K.S.A. 1999 Supp. 21-4716's [now codified as amended at K.S.A. 2018 Supp. 21-6815 ] and determined that the sentencing court had failed to state substantial and compelling reasons for departure on the record. 270 Kan. at 292-94, 13 P.3d 887. This court vacated Whitesell's sentence and remanded for resentencing with the advice that the sentencing court may cite appropriate reasons justifying the imposition of a departure. 270 Kan. at 293-94, 13 P.3d 887.

Notwithstanding a dearth of analysis as to why an increased probation term constitutes a departure sentence, Whitesell clearly treated it as such. The Whitesell opinion labeled the 24-month probation term set forth in the statute as the "presumptive" sentence and required the State to justify a departure from that presumption. The result of the State's failure to provide that justification was a sentence vacation and remand for resentencing.

Thereafter, the holding in Whitesell was treated as mandatory precedent. As the Hambright panel acknowledged, a plethora of Court of Appeals panels have applied Whitesell , e.g., State v. Schad , 41 Kan. App. 2d 805, 827, 206 P.3d 22 (2009) ("[T]his court has recognized that a deviation from the recommended term of subsection [c][1] of K.S.A. 21-4611 is considered a departure."); State v. Gordon , 30 Kan. App. 2d 852, 857, 50 P.3d 100 (2002) ("While a district court may impose a greater period of probation than the recommended term ... such a deviation from the recommended term is deemed a departure requiring the court to state, on the record, substantial and compelling reasons for the deviation from the recommended term."), rev'd on other grounds 275 Kan. 393, 66 P.3d 903 (2003) ; State v. McIntyre , No. 111634, 2015 WL 4486795, at *2 (Kan. App. 2015) (unpublished opinion) ("A district court must 'state on the record substantial and compelling reasons to deviate from the recommended term' of probation."); State v. Berry , No. 103788, 2010 WL 5490751, at *1 (Kan. App. 2010) (unpublished opinion) (vacating 60-month probation term under Whitesell because the recommended duration of probation was 24 months and the departure sentencing statute "is very clear; a court must give its reasons for departing from our sentencing guidelines"). See also State v. Bost , 21 Kan. App. 2d 560, 571, 903 P.2d 160 (1995) ("The presumptive or 'recommended' nonimprisonment [probation, community corrections] term for a severity level 5 crime is 36 months."). But see State v. Huff , 31 Kan. App. 2d 717, 724, 71 P.3d 1185 (2003) (holding sentencing a severity level 7 crime to 36 months instead of the recommended 24 months was not a departure and was not an appealable sentence based on K.S.A. 2002 Supp. 21-4611 [c][5] ), aff'd on other grounds 277 Kan. 195, 83 P.3d 206 (2004).

The panel did not discuss what it believed that this court had done to indicate that it was departing from its previous position. See State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017) ("Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent indication Supreme Court is departing from previous position."). Instead, the panel endeavored to interpret what the Legislature meant when it used the "recommended."

The panel makes some points that would be mildly seductive if one were to be writing on a clean slate. But that is not the case. As Hambright points out, when this court decided Whitesell , K.S.A. 1999 Supp. 21-4611(c) contained the same "recommended duration of probation" language upon which the Court of Appeals relies to interpret the statutory term of 24 months to be advisory, i.e., merely a suggestion. As noted above, Whitesell interpreted the language to manifest an opposite legislative intent, i.e., the stated term of months is intended to be the presumptive duration of probation. In other words, the Hambright panel purports to overrule the Kansas Supreme Court's statutory interpretation.

Of course, this court could choose to overrule its prior holding in Whitesell , albeit such a tack should not be employed simply to reach a result the current court deems more desirable. "The doctrine of stare decisis recognizes that ' "once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised." ' " McCullough v. Wilson , 308 Kan. 1025, 1032, 426 P.3d 494 (2018). We should not "lightly disapprove of precedent" because "adherence to precedent promotes the systemic stability in our legal system." State v. Spencer Gifts, 304 Kan. 755, 766, 374 P.3d 680 (2016). While "stare decisis is not an inexorable command," this court endeavors to adhere to the principle unless clearly convinced a rule of law established in its earlier cases " 'was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.' " 304 Kan. at 766, 374 P.3d 680 ; Hoesli v. Triplett, Inc. , 303 Kan. 358, 363, 361 P.3d 504 (2015).

The panel's rationale intimated that Whitesell was originally erroneous under the KSGA sentencing scheme, as it discussed portions of the "existing sentencing scheme" that were in place when this court decided Whitesell . The panel noted that the term " 'presumptive sentence' " was defined as " 'the sentence provided in a grid block,' " K.S.A. 2018 Supp. 21-6803(q) (formerly K.S.A. 21-4703 [q] [Furse 1995] ), and the term "departure" was defined as "a sentence 'which is inconsistent with the presumptive sentence for an offender,' " K.S.A. 2018 Supp. 21-6803(f) (formerly K.S.A. 21-4703 [f] [Furse 1995] ). Hambright , 53 Kan. App. 2d at 361, 388 P.3d 613. Because the grid box does not contain a number indicating the presumptive duration of the nonprison sanction-the length of probation was found in "K.S.A. 201[8] Supp. 21-6608, which is not part of the KSGA"-the panel contended that the increase in the probation duration should not have been defined as a departure by Whitesell . 53 Kan. App. 2d at 360-61, 388 P.3d 613.

Hambright counters that the panel overlooked other provisions in the KSGA. For instance, the KSGA definition of "durational departure" is "a departure sentence which is inconsistent with the presumptive term of imprisonment or nonimprisonment ." (Emphasis added.) K.S.A. 2018 Supp. 21-6803(i) ; see also K.S.A. 21-4703(i) (Furse 1995) (defining "durational departure" as "a sentence which is inconsistent with the presumptive sentence as to the term of imprisonment, or the term of nonimprisonment"). Importantly, the term "nonimprisonment" includes probation. See K.S.A. 2018 Supp. 21-6803(o) (" 'nonimprisonment,' 'nonprison' or 'nonprison sanction' means probation, community corrections, conservation camp, house arrest or any other community based disposition"); K.S.A. 21-4703(o) (Furse 1995) (same). Consequently, KSGA's definition of "durational departure" would indicate that the Legislature intended for there to be presumptive terms of probation. If so, deviating from the presumptive term would be a departure.

In their briefing to the Court of Appeals, neither party asked the court to overrule Whitesell ; the panel embarked on that mission on its own, without the benefit of the litigant's advocacy. We are further disadvantaged by the State's failure to respond to the petition for review. The better practice would have been to have the benefit of thorough briefing before declaring a predecessor court's holding to be erroneous.

The panel also relied heavily on its assessment that changing conditions rendered Whitesell 's holdings unsound. As we noted above, the word the panel finds dispositive-"recommended"-did not change. In addition, the panel fashions an argument based upon the Legislature's amendments to K.S.A. 2018 Supp. 21-6608(c)(3) to (c)(5), which were effective on May 25, 2000. See K.S.A. 2000 Supp. 21-4611 ; L. 2000, ch. 182, § 6. Hambright points out that the amendments actually became effective before Whitesell was issued, but obviously that opinion did not take into account the amendments.

Specifically, the Hambright panel asserted that the terms of probation for the less severe felonies addressed in (c)(3) and (c)(4) are mandatory, unlike the "recommended" terms in subsections (c)(1) and (c)(2). But those mandatory probation terms can be increased under subsection (c)(5) if the sentencing court finds and sets forth with particularity the reasons that the safety of the public or the welfare of the inmate will not be served by the mandatory terms. Subsection (c)(5) expressly declares that an increase based on those findings is not considered a departure. The Court of Appeals opined that "it would be inconsistent to hold that variance from the recommended probation terms [in subsections (c)(1) and (c)(2) ] would constitute a departure when the legislature clearly expressed that variance from the mandatory terms is not even to be considered a departure as long as certain findings are made." Hambright , 53 Kan. App. 2d at 362, 388 P.3d 613.

But there is a different way in which to view the structure of the statute. Subsection (c)(5)'s express statement that an extension to a subsection (c)(3) or (c)(4) probation term is not a departure tells us that the Legislature would have known how to express that extensions to a (c)(1) probation are not to be considered a departure, but chose not to do so. Cf. Schad , 41 Kan. App. 2d at 825-27, 206 P.3d 22 ("By its plain and unambiguous language, K.S.A. 21-4611 [c][5] applies only to those crimes covered by subsections [c][3] and [c][4] of that statute."). Similarly, the inclusion in one subsection but not another would invoke the rule of construction that the inclusion of one thing implies the exclusion of another, i.e. expressio unius est exclusio alterius . Moreover, the Legislature expressly provided for disparate treatment between subsections (c)(1) and (c)(2) and subsections (c)(3) and (c)(4), so that the panel's declaration of inconsistency is unpersuasive.

Perhaps more importantly, since Whitesell and Schad were published, the Legislature has amended K.S.A. 2018 Supp. 21-6608 six times and has declined to overrule the departure sentencing statutory interpretation set forth in Whitesell and followed in Schad . See L. 2014, ch. 102, § 5; L. 2013, ch. 76, § 3; L. 2012, ch. 150, § 30; L. 2011 ch. 30, § 65; L. 2010 ch. 136, § 248; L. 2009, ch. 132, § 9. "Legislative inaction may not be the strongest indicator of specific legislative purpose, [citation omitted], but it is an indicator." State v. Jordan , 303 Kan. 1017, 1021, 370 P.3d 417 (2016). See also State v. Kleypas , 305 Kan. 224, 261, 382 P.3d 373 (2016) ("[L]egislatures are presumed to be familiar with court precedent and to expect that its enactments will be interpreted accordingly."); State v. Quested , 302 Kan. 262, 278, 352 P.3d 553 (2015) ("The doctrine of stare decisis is particularly compelling in cases where, as here, the legislature is free to alter a statute in response to court precedent with which it disagrees but declines to do so."). Certainly, in recent years, the Legislature has not been shy about legislatively overruling our decisions. Its inaction for nearly two decades on such a common occurrence as setting the term of probation is significant.

The panel also pointed to subsequent caselaw as support for its abandonment of Whitesell. For instance, the panel reasoned that if the increased probation term is considered a departure sentence, it is an upward durational departure, which requires a jury determination under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and State v. Gould , 271 Kan. 394, 23 P.3d 801 (2001). See K.S.A. 2018 Supp. 21-6815(b) ("[A]ny fact that would increase the penalty for a crime beyond the statutory maximum, other than a prior conviction, shall be submitted to a jury and proved beyond a reasonable doubt."). But it is not abundantly clear that Apprendi would be applicable here. Cf. State v. Carr , 274 Kan. 442, 452, 53 P.3d 843 (2002) ("The distinction between probation and the imposition of a prison sentence renders the United States Supreme Court's Apprendi decision inapplicable to a sentencing judge's decision to impose a dispositional departure prison sentence rather than to grant probation."). Again, the panel's sua sponte consideration of the issue without briefing from the parties hampers the analysis. But certainly no party raised the issue that the sentencing scheme required by Whitesell is unconstitutional. See State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review). That question will have to wait until it is properly presented on appeal.

The foregoing leads us to inquire whether more good than harm will come by departing from the holding in Whitesell . The panel did not expressly address that question, although it inadvertently pointed to the resultant harm from its decision when it string-cited the many Court of Appeals decisions that have followed the precedent. Two decades of reliance on Whitesell by the lower courts counsels against discarding it, unless there is a compelling reason to do so. Given that a sentencing court is still able to impose an extended duration of probation under the Whitesell paradigm and a sentencing court that orders restitution can still invoke K.S.A. 2018 Supp. 21-6608(c)(7) to continue probation until restitution is paid, the compulsion to change the procedure for imposing an extended probation is not readily apparent.

In short, the Court of Appeals decision overruling our holding in Whitesell and affirming the district court's departure to a 36-month period of probation is reversed. The matter is remanded to the district court for resentencing on the duration of probation under the correct legal standard.

Reversed and remanded with directions.


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    Warren D. MEATS Jr., Appellee/Cross-appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellant/Cross-appellee.
    No. 116,469
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Dwight R. Carswell, assistant solicitor general, argued the cause, and J. Brian Cox, deputy general counsel, Kansas Department of Revenue, Jeffrey A. Chanay, chief deputy attorney general, and Bryan C. Clark, assistant solicitor general, were with him on the briefs for appellant.
    Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

Kansas Department of Revenue (KDOR) appeals the Johnson County District Court's ruling that the $50 fee mandated by K.S.A. 2014 Supp. 8-1020(d)(2) to gain administrative review of a driver's license suspension is unconstitutional. Warren D. Meats Jr. cross-appeals the district judge's order affirming his license suspension, arguing that the arresting officer failed to comply with the statutorily mandated implied consent advisories and that the arresting officer failed to comply with the personal service requirements of K.S.A. 2014 Supp. 8-1001(c).

We have considered these identical issues in Creecy v. Kansas Dept. of Revenue , 310 Kan. ----, ----, 447 P.3d 959, 2019 WL 3977508 (No. 117035, this day decided), slip op. at 3, and have held that the $50 fee requirement in K.S.A. 2014 Supp. 8-1020(d)(2) is facially unconstitutional. We therefore affirm the district court's ruling on the fee issue, but because Meats did not appeal the district court's ruling that the issue was moot as to him, he is not entitled to any relief in this appeal. We find no merit to Meats' other claims, and affirm the suspension of his driver's license.

FACTUAL AND PROCEDURAL OVERVIEW

Following his arrest for DUI in March 2014, Meats refused to submit to a postarrest evidentiary breath test to measure his blood alcohol content (BAC) while at the Olathe jail. Olathe Police Officer John Forcier testified that his standard procedure was to give the required implied consent advisories per K.S.A. 2014 Supp. 8-1001(k), both orally and using the DC-70 written form, advising Meats of his rights and the potential penalties for failure or refusal. Once Meats refused the test, Officer Forcier would have provided him with the Officer's Certification and Notice of Suspension form-Form DC-27-notifying Meats that his license was being administratively suspended for a refusal of a BAC test. Although Officer Forcier testified to the standard procedure he followed under these circumstances, he was unable to specifically recall the events and procedures used during Meats' arrest.

Meats testified that he received some paperwork but he did not know whether it included a DC-70 or a DC-27. He did acknowledge receiving a pink copy of a form, which would have been consistent with a DC-27 form. Further, he admitted that the DC-27 form was with his other belongings when he was released from jail.

Meats requested an administrative hearing, pursuant to K.S.A. 2014 Supp. 8-1020(a)(1), to challenge the suspension of his driver's license. The KDOR administrative law judge affirmed the suspension, and Meats petitioned for de novo review in Johnson County District Court. In those proceedings, Meats argued that he did not receive personal service of the DC-27 as required by statute; that the DC-70 did not substantially comply with K.S.A. 2014 Supp. 8-1001 ; and that the $50 fee required by K.S.A. 2014 Supp. 8-1020(d)(2) to obtain an administrative hearing was unconstitutional.

After a hearing conducted January 15 and February 19, 2016, Johnson County District Judge Kevin Moriarty affirmed the driver's license suspension and found that the DC-70 complied with the statute, and that Meats received personal service of the DC-27. But the district court ruled that K.S.A. 2014 Supp. 8-1020(d)(2)'s requirement that a driver pay a $50 fee to get an administrative hearing on the driver's license suspension was unconstitutional, albeit the issue was moot with respect to Meats. Specifically, the district court held:

"The constitutional challenge with respect to Meats is moot because he paid the $50 fee. Thus, his driver's license shall remain suspended. However, subsequent to this ruling, K.S.A. 8-1020(d) is unconstitutional because it lacks reasonable accommodations for indigent drivers to obtain an initial administrative hearing. This amounts to the State depriving the driver of his or her license without procedural due process."

KDOR filed a motion to alter or amend pursuant to K.S.A. 60-259(f) ; the district court held a hearing on June 29, 2016, and denied the motion. Judge Moriarty explicitly stated that his intent was to have the issue of the indigent waiver reviewed by an appellate court:

"[T]his is something that needs to be addressed by the legislature. Here is what my intent is. Someone can be [sic ] a 1983 action. They can't afford to do that, especially because it is going to be have to be somebody that is not indigent doing it for a person who is indigent. It isn't going to happen. All I want to do is have this be reviewed, the Court of Appeals or the Supreme Court say I am right or wrong. But what will happen is ... the legislature is going to put in their [sic ] subject to maybe the exact wording that is in the-that indigents can have it under the review."

KDOR timely appealed directly to this court. This court has jurisdiction under K.S.A. 60-2101(b), based on the district court's finding that K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional ("An appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United States has been held unconstitutional shall be taken directly to the supreme court.").

Meats cross-appealed, arguing that the DC-70 did not substantially comply with statutory requirements and that Meats did not receive personal service of the DC-27. Pointedly, Meats did not challenge the district court finding that the constitutional challenge was moot as to him.

CONSTITUTIONALITY OF MANDATORY FEE FOR DUE PROCESS HEARING

Our decision today in Creecy , 310 Kan. at ----, 447 P.3d 959, slip op. at 3, 7, establishes that the $50 fee imposed by K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires payment of a fee, without provision for indigency, before a motorist can obtain procedural due process to which he or she is entitled before a driver's license is suspended or revoked.

Consequently, we affirm the district court's ruling that this portion of the statute is unconstitutional. Nevertheless, the facial unconstitutionality of one provision in a statute does not necessarily make the entire statute null and void. Cf. State v. Gould , 271 Kan. 394, Syl ¶ 3, 23 P.3d 801 (2001) (facial unconstitutionality of scheme for imposing upward departure sentences in K.S.A. 2000 Supp. 21-4716 did not affect downward departure provisions in the same statute). Consequently, Meats' remedy in this case is not the restoration of his driving privileges, but rather the most that he would be entitled to would be a refund of the $50 fee. But Meats did not appeal the district court's determination that his challenge to the $50 fee was moot, so he gets no relief here.

THE IMPLIED CONSENT ADVISORY COMPLIES WITH STATUTORY REQUIREMENTS

Meats argues that the implied consent advisory form, DC-70, did not substantially comply with K.S.A. 2014 Supp. 8-1001(k)(4)(A) and K.S.A. 2014 Supp. 8-1013(i). The thrust of Meats' argument is that the DC-70 does not sufficiently differentiate the refusal or failure to complete a postarrest evidentiary test, which can lead to additional sanctions, and a refusal to submit to a prearrest preliminary breath test (PBT) which is not subject to sanctions and which has limited admissibility in later proceedings.

We have considered this identical argument in Creecy and have found it to be unavailing. Creecy , 310 Kan. at ----, 447 P.3d 959, slip op. at 21-24. The DC-70 in this case is the same as the form used in Creecy , which we found to sufficiently comply with statutory directives. The phrase "evidentiary test," which K.S.A. 2014 Supp. 8-1013(i) refers to in its definition of "test refusal" is sufficient to distinguish the postarrest BAC test from the prearrest PBT, and the language in the DC-70 form used in this case nearly mirrors the statutory language. Under Fisher v. DeCarvalho , 298 Kan. 482, 490, 314 P.3d 214 (2013), and Barnhart v. Kansas Dept. of Revenue , 243 Kan. 209, 213, 755 P.2d 1337 (1988), substantial compliance with statutory language is what is required, and that level of compliance was met here. We find Meats' arguments unavailing.

MEATS RECEIVED PERSONAL SERVICE OF THE NOTICE OF SUSPENSION

Meats argues that he was not personally served with the DC-27 form, which is the officer's certification of a test refusal and notice of license suspension, as required by K.S.A. 2014 Supp. 8-1002(c).

Standard of Review

Factual findings are reviewed for substantial competent evidence; questions of law are reviewed de novo. Gannon v. State , 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014) ; Fisher , 298 Kan. at 488, 314 P.3d 214 (whether statutory provisions regarding personal service were followed is reviewed de novo); Gudenkauf v. Kansas Dept. of Revenue , 35 Kan. App. 2d 682, 683, 133 P.3d 838 (2006).

Analysis

This issue was also argued in Creecy , where we found that the officer complied with the statutory requirements for service of the DC-27. Creecy , 310 Kan. at ----, 447 P.3d 959, slip op. at 16-19. We reach the same result here.

Although Officer Forcier testified that he personally served Meats with a copy of the DC-27, his testimony was not based on independent recollection; rather, it was based on that being his standard practice in the course of hundreds of DUI cases over a 10-year period. For his part, Meats testified that while he remembered getting paperwork, he did not remember specifically if he got the DC-27 or other forms. Meats testified that he was given the paperwork while he was still in handcuffs and that the DC-27 was in his belongings when he was released from jail. Meats agreed that one of the pieces of paperwork was pink, and the parties established that the copy of the DC-27 given to a driver is pink.

The district court's findings of fact amount to a conclusory statement that "Meats's [sic ] arguments regarding the oral notice not being properly read to him and the alleged improper service of the DC-27 are non-issues because [Officer] Forcier substantially complied with the statute." The district court appears to have combined the analysis of whether the DC-70 complies with the statute with the analysis of whether Meats received personal service of the DC-27.

But Meats does not make the specific argument that the district court's implicit finding that Officer Forcier personally served the DC-27 form was not supported by substantial competent evidence. Critically for Meats, he has the burden of proof to show that he did not receive personal service and that the agency decision should be set aside. K.S.A. 2014 Supp. 8-1020(k), (q). The DC-27 itself contains a place for the officer to indicate that the motorist has been personally served with the form; and Meats did not show by a preponderance of evidence that this fact was untrue. Rather, Meats reiterates the arguments also made in Creecy that strict compliance is the proper standard, rather than substantial compliance. But, as in Creecy , the evidence before us shows that Officer Forcier complied with the statute and served Meats with the DC-27 under any standard.

We affirm the district court's ruling on the unconstitutionality of K.S.A. 2014 Supp. 8-1020(d)(2) and the affirming of Meats' driver's license suspension.

Stegall, J., concurs in the result.


text:
    In the MATTER OF David E. HERRON II, Respondent.
    No. 119,726
    Supreme Court of Kansas.
    September 11, 2019.
    ORDER OF REINSTATEMENT
   On May 10, 2019, this court suspended the respondent's license to practice law in Kansas for a period of 60 days. In re Herron , 309 Kan. 839, 441 P.3d 24 (2019).

On July 10, 2019, the respondent filed a petition for reinstatement under Supreme Court Rule 219 (2019 Kan. S. Ct. R. 270). The office of the Disciplinary Administrator responded that it has no objection to the respondent's petition for reinstatement.

The court has considered and grants the petition for reinstatement.

IT IS THEREFORE ORDERED that the respondent's license to practice law in Kansas is reinstated, conditioned upon the respondent's compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. See Supreme Court Rule 208 (adopted April 25, 2019) (attorney registration); Supreme Court Rule 811(a) (2019 Kan. S. Ct. R. 553) (continuing legal education). Upon receipt of proof of the completion of these conditions, the Clerk is directed to enter the respondent's name on the roster of attorneys actively engaged in the practice of law in Kansas.

IT IS FURTHER ORDERED that this order be published in the official Kansas Reports and that the costs herein be assessed to the respondent.


text:
    In the MATTER OF Harry Louis NAJIM, Respondent.
    No. 116,943
    Supreme Court of Kansas.
    September 11, 2019
    ORDER OF REINSTATEMENT
   On December 1, 2017, this court indefinitely suspended the respondent Harry Louis Najim's license to practice law in Kansas retroactive to the May 15, 2015, order of temporary suspension. The court further ordered that the respondent undergo a reinstatement hearing under Supreme Court Rule 219(d) (2017 Kan. S. Ct. R. 263) prior to its consideration of any petition for reinstatement filed under Supreme Court Rule 219(b). In re Najim , 307 Kan. 76, 405 P.3d 1223 (2017).

On November 19, 2018, the respondent filed a petition for reinstatement. The Disciplinary Administrator agreed that sufficient time had passed for the court to reconsider the suspension order. The court then ordered the Disciplinary Administrator to conduct an investigation of the facts alleged in the petition for reinstatement and the respondent's conduct since the court suspended the respondent's license. See Rule 219(d)(2) (2019 Kan. S. Ct. R. 270). The court further ordered that upon completion of the Disciplinary Administrator's investigation, the respondent appear for a reinstatement hearing before a hearing panel appointed by the Kansas Board for Discipline of Attorneys and that the reinstatement matter proceed pursuant to Rule 219. The court has since received the final hearing report detailing the panel's findings in support of its recommendation for reinstatement.

After careful consideration and a thorough review of the final hearing report, the court finds the respondent's license to practice law in Kansas courts should be reinstated. The court further finds such reinstatement should be conditioned upon the respondent's compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. See Supreme Court Rule 208 (adopted April 25, 2019) (attorney registration); Supreme Court Rule 811(b) (2019 Kan. S. Ct. R. 553) (continuing legal education).

IT IS THEREFORE ORDERED that the respondent's license to practice law in Kansas is reinstated, conditioned upon the respondent's compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. Upon receipt of proof of the completion of these conditions, the Clerk is directed to enter the respondent's name on the roster of attorneys actively engaged in the practice of law in Kansas.

IT IS FURTHER ORDERED that this order be published in the official Kansas Reports and that the costs herein be assessed to the respondent.