Kansas appellate practice HandbooK - kscourts.org

1 Kansas appellate practice HandbooK5tH editionKansas Judicial counciliiSubscription information The Kansas appellate practice HandbooK is updated on a periodic basis with supplements to reflect important changes in both statutory law and case law. Your purchase of this publication automatically records your subscription for the update service. If you do not wish to receive the supplements, you must inform the Judicial Council. You may contact the Judicial Council by e-mail at by telephone at (785) 296-2498 or by mail at: Kansas Judicial Council301 SW 10th, Ste. 140 Topeka, KS 66612 2013 Kansas JUDICIAL COUNCILALL RIGHTS RESERVED iii2013 PREFACEThe authors and editors of this Fifth Edition of the HandbooK owe a professional debt to those who authored the First Edition of the HandbooK in 1978 and issued a revision in 1984. Members of the original KBA Kansas appellate practice HandbooK Writing Committee included Hon.

2 J. Richard Foth and Robert J. Roth, Co-Chairs, Hon. Bob Abbott, Lewis C. Carter, Professor Robert C. Casad, Professor James Concannon, Jerry G. Elliott, Don Patterson, Fred N. Six, and Hon. Jerome Harman, Editor. The 1984 revision was prepared by Hon. J. Richard Foth, Hon. Bob Abbott, and Carol Gilliam Second Edition in 1994 and the Third Edition in 1998 were edited by Hon. Bob Abbott and Carol Gilliam Green. Other contributing authors and editors to those editions were Alan F. Alderson, Hon. J. Patrick Brazil, Debra Sue Byrd Peterson, Hon. Jerry G. Elliott, Randall E. Fisher, Brian J. Moline, Robert W. Parnacott, Robert L. Phelps II, Joan K. Rowland, Robert C. Rowland, Martha M. Snyder, and Cheryl L. 2005, the Kansas Bar Association, publisher of the HandbooK , generously donated its copyright to the Kansas Judicial Council which assumed responsibility for publication.

3 In addition to traditional publication, the Judicial Council makes the HandbooK available online, as a public service, at and The Fourth Edition, published in 2007, was prepared under the direction of the Judicial Council appellate Procedure Advisory Committee, chaired by Hon. Jerry G. Elliott. Authors and editors included Janet L. Arndt, Hon. Jerry G. Elliott, Teri E. Canfield-Eye, Hon. Nancy L. Caplinger, Richard L. Cram, Nicholas S. Daily, James M. Gannon, Carol Gilliam Green, Randall L. Hodgkinson, Clinton L. Hurt, Gayle B. Larkin, Hon. Marla J. Luckert, Patricia E. McComas, Hon. Kevin P. Moriarty, Steven J. Obermeier, Debra Sue Byrd Peterson, Nancy J. Strouse, Michelle M. Watson, and Tonia Owens 2009 update of the Kansas appellate practice HandbooK , Fourth Edition, was prepared by Hon. Nancy L. Caplinger, Martha J. Coffman, Hon. Jerry G. Elliott, James M. Gannon, Carol Gilliam Green, Chelsey G.

4 Langland, Gayle B. Larkin, Kimberly D. Long, Christy R. Molzen, Steven J. Obermeier, Jonathan iv2013M. Paretsky, and Carrie A. Wortman. The 2010 supplement was prepared by Christy R. Molzen and Carol Gilliam Fifth Edition has been prepared under the direction of the Judicial Council appellate practice Advisory Committee, chaired by Carol Gilliam Green. Authors and editors included Carol Gilliam Green, Hon. Stephen D. Hill, Hon. Jared Johnson, Stephen M. Kerwick, Lydia H. Krebs, Chelsey G. Langland, Gayle B. Larkin, Christy R. Molzen, Hon. Nancy L. Moritz, Steven J. Obermeier, and Barry L. HandbooK represents a collective view of current appellate practices and procedures which are subject to change. The Kansas appellate Courts have not endorsed, nor are they bound by, statements in this references throughout are to the latest version of the Kansas Statutes Annotated unless otherwise specifically indicated.

5 Rules refer to the Kansas Supreme Court Rules, published annually in the Kansas Court Rules Gilliam Green, Chair Kansas Judicial Council appellate practice Advisory CommitteeDEDICATIONThe Honorable Jerry G. ElliottNovember 25, 1936 - April 5, 2010In recognition of his invaluable contributions to theKansas appellate practice HandbooK over more than thirty years of OF CONTENTSC hapter 1 HISTORY OF THE appellate COURTSC hapter 2 PERSONNEL OF THE appellate COURTS The Supreme Court ..2-1 The Court of Appeals ..2-2 Clerk of the appellate Courts ..2-2 appellate Reporter ..2-3 Judicial Administrator ..2-3 Law Librarian ..2-4 Disciplinary Administrator ..2-4 Chapter 3 INTERNAL OPERATING PROCEDURESI. SUPREME COURT Hearings ..3-1 Decision ..3-2 Opinions ..3-2 Motions and Original Actions ..3-2 Petitions for Review ..3-3 Disqualification and Recusal.

6 3-3II. COURT OF APPEALS Prehearing ..3-4 Decision ..3-5 Opinions ..3-6 Motions ..3-6 Disqualification ..3-6 III. CONFIDENTIALITY Confidentiality in the appellate Courts ..3-7vi2013 Chapter 4 ORIGINAL ACTIONS IN THE appellate COURTS Exercise of Concurrent Jurisdiction ..4-1 Procedure upon Filing an Original Action ..4-1 Docket Disposition ..4-2 The Record ..4-3 Quo Warranto ..4-4 Mandamus ..4-4 Habeas Corpus ..4-6 Chapter 5 appellate JURISDICTIONI. CREATION OF THE Kansas appellate COURTS Constitutional and Statutory Authority ..5-1II. appellate JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES Direct Appeals to the Supreme Court ..5-2 III. appellate JURISDICTION OF THE COURT OF APPEALS IN CRIMINAL CASES A. Appeals by the Defendant to the Court of Appeals Generally ..5-3 Following Judgment.

7 5-4 Following Pleas ..5-6 B. Appeals by the Prosecution to the Court of Appeals Generally ..5-8 From an Order Dismissing a Complaint, information or Indictment: 22-3602(b)(1) ..5-9 From an Order Arresting Judgment: 22-3602(b)(2) ..5-11 Upon a Question Reserved by the Prosecution: 22-3602(b)(3) ..5-11 Upon an Order Granting a New Trial in Any Case Involving an Off-Grid Crime: 22-3602(b)(4) ..5-14 Interlocutory Appeals: 22-3603 ..5-14 C. Sentencing Guidelines Appeals Appeals Under the Kansas Sentencing Guidelines Act ..5-16vii2013IV. appellate JURISDICTION IN JUVENILE OFFENDER CASES Appeals by the Juvenile Offender ..5-19 Appeals by the Prosecution ..5-20 Sentencing Guidelines Appeals - Juvenile.

8 5-21 V. appellate JURISDICTION IN CIVIL CASES Supreme Court ..5-22 Court of Appeals ..5-23VI. APPEALABLE ORDERS IN CIVIL CASES Final Orders ..5-24 Interlocutory Orders that are Appealable as a Matter of Right ..5-30 Interlocutory Orders that are Appealable in the Court s Discretion 5-31 60-254(b) Entry of Final Judgment as to One or More but Fewer than All Claims or Parties ..5-33 Probate Proceedings ..5-35 Juvenile Proceedings ..5-38 VII. TRANSFER OF CASES BETWEEN THE appellate COURTS General ..5-38 Upon Motion of a Party ..5-39 Upon Motion of the Supreme Court ..5-39 Upon Motion of the Court of Appeals ..5-40 Appeal of Right from Court of Appeals to Supreme Court ..5-40 Petitions for Review by Supreme Court of Court of Appeals Decisions ..5-40 VIII. MULTI-LEVEL APPEALS General.

9 5-42 Appeals from Decisions of District Magistrate Judges in Criminal Cases ..5-42 Appeals from Decisions of District Magistrate Judges in Civil Cases ..5-43 Appeals from Municipal Court to District Court in Criminal Cases ..5-44 Appeals from Municipal Court to District Court in Civil Cases ..5-45 Appeals from Decisions in Small Claims Court ..5-45 Certified Questions ..5-45viii2013 Chapter 6 JUDICIAL REVIEW OF AGENCY DECISIONS Introduction ..6-1 Scope of KJRA ..6-2 Persons Entitled to Review ..6-3 Standing ..6-3 Exhaustion of Remedies ..6-4 Primary Jurisdiction ..6-5 Initiating Review Where to File ..6-5 Timely Filing and Service ..6-6 Pleading Requirements of Petition for Judicial Review ..6-8 Stays and Other Remedies ..6-9 Preserving Issues for Review Under the KJRA.

10 6-9 The Agency Record ..6-11 Scope of Remedies ..6-15 Appeals Outside of the KJRA ..6-16 Workers Compensation Cases ..6-17 Checklist for Review of Agency Action ..6-18 Chapter 7 appellate PROCEDUREI. NOTICE OF APPEAL Generally ..7-1 Chapter 60 Chapter 61 Juvenile Appeals ..7-5 Probate Appeals ..7-6 Mortgage Foreclosure Appeals ..7-6 Criminal Appeals ..7-7 Cross-Appeals ..7-9II. FILING OR SERVICE OF PAPERS: TIME COMPUTATIONS Generally ..7-10ix2013 III. STAYS PENDING APPEAL Generally ..7-12 Chapter 60 Appeals ..7-12 Chapter 61 Appeals ..7-13 Juvenile Appeals ..7-13 Probate Appeals ..7-13 Criminal Appeals ..7-13IV. DOCKETING THE APPEAL Generally ..7-15 Parental Notice Waiver Requirements Rule ..7-18V. APPEARANCE AND WITHDRAWAL Appearance.