Summary
The Kansas Supreme Court denies the Attorney General’s motion to withdraw its prior order holding subsection (c) of K.S.A. 2014 Supp. 20-3301 unconstitutional and permitting intervention to defend the statute. The court concludes that the State failed to establish excusable neglect, surprise, another justification for relief under K.S.A. 60-260(b), or a meritorious defense. The court also determines that the prior constitutional ruling was based on an independent review of the merits rather than solely on the State’s failure to respond.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court should withdraw its July 1, 2015 order under K.S.A. 60-260(b)(1) based on excusable neglect or surprise.
- Whether fairness, public policy, or any other reason justified relief under K.S.A. 60-260(b)(6) to allow the Attorney General additional briefing and intervention.
- Whether the State established a meritorious defense to Buser's constitutional challenge sufficient to support relief from the prior order.
- Whether the Attorney General was entitled to notice or intervention under K.S.A. 2014 Supp. 60-224(b)(2)(B) or K.S.A. 2014 Supp. 75-702 when the State was already represented by counsel of record.
Holdings
- The State failed to establish excusable neglect warranting relief from the July 1 order. Counsel's asserted ignorance or mistaken understanding of the service rules, unsupported by evidence, does not constitute excusable neglect.
- The State failed to establish surprise as a basis for withdrawing the July 1 order.
- Fairness and public-policy concerns did not justify reopening the constitutional ruling or permitting additional briefing by the Attorney General.
- The Attorney General failed to demonstrate a meritorious defense to the constitutional challenge, an additional requirement for relief under Kansas precedent.
Key quotations
“a court would abuse its discretion if it were to reopen a case under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable solely to counsel’s carelessness with or misapprehension of the law or the applicable rules of court.” (302 Kan. at 20)
“The motion on behalf of the State to withdraw our July 1 Order is denied.” (302 Kan. at 31)
Factual background
Buser's defense counsel filed a motion challenging the constitutionality of K.S.A. 2014 Supp. 20-3301(c) and properly served the Mitchell County Attorney, the State's counsel of record. The County Attorney neither responded within the applicable seven-day period nor sought an extension, and the Attorney General did not learn of the motion until after the Supreme Court entered its July 1 order finding the subsection unconstitutional. The Attorney General later asserted that the County Attorney mistakenly believed filings were served on the Attorney General and moved to withdraw the order, but provided no affidavit or evidentiary support and did not present a meaningful constitutional defense.
Procedural history
Buser's counsel properly served the State's counsel of record with a motion challenging K.S.A. 2014 Supp. 20-3301(c). The Mitchell County Attorney did not respond or seek an extension, and the Supreme Court granted the motion on July 1, 2015, holding the subsection unconstitutional. After learning of the order, the Attorney General entered an appearance and sought relief from the order based on excusable neglect, surprise, public policy, and the asserted absence of a meritorious defense. The court rejected each asserted ground and denied the motion.