Petition for Writ of Certiorari — Sharp v. Kansas

Supreme Court brief1992

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Bpreme Court, U.S.

FILED

No. | OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

REX A. SHARP, KERRY McQUEEN, JAMES H. MORAIN

and DANIEL H. DIEPENBROCK, as Individuals,

NEUBAUER, SHARP, McQUEEN, DREILING &

MORAIN, P.A., as a firm, and ALL OTHER

LAWYERS AS A CLASS REQUIRED BY THE

. STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Kansas

PETITION FOR A WRIT OF CERTIORARI

Rex A. SHARP

419 North Kansas

P.O. Box 2619

Liberal, Kansas 67905-2619

(316) 624-2548

Counsel of Record for

Petitioners

COCKLE LAW BRIEF PRINTING CO, om 225-6964

OR CALL COLLECT (402) 342-283

—_——

QUESTIONS PRESENTED FOR REVIEW

Can a State, despite a previous court determination

that it has engaged in an unconstitutional regulatory

taking of private property, avoid the U.S. Fifth Amend-

ment remedial mandate of paying just compensation by

invoking the common law doctrine of prospectivity?

a) Ifso, does James Beam apply to require retro-

activity if the previous court rulings were

not purely prospective?

b) If James Beam does not apply, does federal,

instead of state, retroactivity law govern the

federal constitutional issue of taking with-

out just compensation?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW..... rere i

TABLE OF AUTIOORIVIGS «<< sicsvnsavaass vere reer iv

OPENING DELIA os 0x05 ivexeeseduavsceiawens tase 2

JURISI TRON «is sacdcnkes ewe aed ee 2

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATEMENT OF THE CAGE, ..505:0s0nsescnccevecrs 3

1. Smith - State Court Appointment System

Unconstitutional, Prospective Relief Granted.. 3

2. Sharp-Fed - Federal Court Damage Action Dis-

missed on Eleventh Amendment Grounds.... 6

3. Sharp I — State Damage Action ~ Inverse Con-

demnation and Unjust Enrichment Not

Decided on Merits, All Other Causes of Action

DismninGOG. .....0kks Ria eee Rae REE Le La kek 6

4. Sharp II - The Instant Case .................. 8

REASONS FOR GRANTING THE WRIT ........... 10

I. THE KANSAS SUPREME COURT’S ERRO-

NEOUS DECISION ALLOWS THE STATE TO

TAKE PRIVATE PROPERTY FOR PUBLIC USE

WITHOUT PAYING JUST COMPENSATION

WHICH IS CONTRARY TO THE EXPRESS

LANGUAGE OF THE JUST COMPENSATION

CLAUSE, CONTRADICTS THIS COURT’S

HOLDING AND RATIONALE IN FIRST

LUTHERAN CHURCH, AND UNDERMINES

THE FUNDAMENTAL FIFTH AMENDMENT

PROTEL. THIN . . 1 sas cow eeeneeees Pua eu ekki 10

A. A Common Law Doctrine, Such As Pro-

spectivity/Retroactivity, Cannot Over-

come A Constitutional Doctrine ......... 12

B. The Opinion Below Conflicts With The

Holding Of First Lutheran Church....... 12

TABLE OF CONTENTS - Continued

Page

C. The Opinion Below Disregards The Intent

Of The Fifth Amendment And Thereby

Permits States To Exploit Political Minor-

ee eee hee ek ee es Gh SARS EEAEO 14

- D. The Decision Below Could Undermine All

eee eee 16

E. The Decision Below Is Critically Important

To All States, Counties, Cities, And Regu-

latory Bodies And The Citizens Over

Which They Govern - That Means Every-

ae ive h cis eersasheeesnesaswnenseess 17

F. Attempts By The States To Avoid Paying

Just Compensation Are A Recurring Prob-

lem With Overwhelming Economic Impli-

GE ean ees ie etc narsenwesacaeunessc 19

G. The Decision Below Actually Encourages,

Rather Than Discourages, Abuse Of Con-

SEIS Whos Aan eon ke nv nnse enn en 21

H. The Decision Below Is Unjust........... 23

Il. EVEN IF THE PROSPECTIVITY DOCTRINE

COULD NEGATE THE JUST COMPENSA-

TION CLAUSE, THE WRONG RETROAC-

TIVITY LAW WAS APPLIED BELOW WHICH

RESULTED IN A DENIAL OF PLAINTIFFS’

FEDERALLY PROTECTED CONSTITU-

ES MNEs 6 hws sean sdsannstsanceennae 24

Ree eae re eee eer ae 28

APPENDIX 1 (Opinion of Seward County District

ae Lead we Roh ERAN A KE ONS BEERS la

APPENDIX 2 (Opinion of Kansas Supreme Court) ... 10a

APPENDIX 3 (Order of Kansas Supreme Court

Eee eee eee Te Te ee eee 23a

TABLE OF AUTHORITIES

Page

Unitep States SUPREME Court CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)......... 19

American Trucking Assn. v. Smith, 495 U.S. __, 110

ot. 2325, 110 L.bd.20 366 (1900) ............. 24, 28

Armstrong v. United States, 364 U.S. 40 (1960)........ 15

Barker v. Kansas, 504 U.S. __, 112 S.Ct. ___, 118

UR DES CO Te, PORE). xe ike cinss cnn si 20, 21

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 402 U.S. 388 (1977)............ 16

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)...9, 26, 28

_ Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226

Sn eee re ee ee ee re ny pee 10

First Lutheran Church v. Los Angeles County, 482

SF REE Dev bens eee et Saeean te ieekaseen's passim

Golden State Transit v. Los Angeles, 493 U.S. 103

PRUE 554d ANN WERENS Dh MARE SERA EON CaN NR eRS CoA hE A 12

\ Hans v. Louisiana, 134 U.S. 1 (1890) ..............-.. 21

James B. Beam Distilling Co. v. Georgia, 501 U.S. __,

111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) ......9, 25, 26

Limbach v. Hooven & Allison Co., 466 U.S. 353

Se errr rrr TT rr ere rey See Tere 14

MacDonald, Sommer & Frates v. Yolo County, 477

SO ID 6 bn 055 4 du OUT MEK R ORES Wis cebusen xs 19

McKesson Corp. v. Div. of Alcoholic Beverages &

Tobacco, 496 U.S. ___, 110 S.Ct. 2238, 110 L.Ed.2d

Se RNA aN Ks inde vu sewse eee ceceassar ter eeken se. 27

Penn Central Transp. Co. v. New York City, 438 U.S.

8, Serre Per err er rey erie rT re ter Tre 29

i scanertaneeneeaaennameetaae amid

TABLE OF AUTHORITIES —- Continued

Page

Pennell v. San Jose, 405 U.S. 1 (1988) ................ 15

San Diego Gas and Electric Co. v. San Diego, 450 U.S.

Re SOE cas cake ake cance cree 14, 16, 19, 23

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)................ 19

FEDERAL Court Cases

Sharp, et al. v. State, et al., No. 88-1001-K (D.Kan.

Minecn 26, 1966) (SRAPP-TOE) «oo doce sce anaveaness 6, 21

STaTE Court Cases

Corrigan v. City of Scotsdale, 149 Ariz. 538 (1978) ....19

Davis v. Pima County, 121 Ariz. 343, 590 P.2d 459

ec ae Nid ERY a 19

Keith v. Schiefen-Stockman Ins. Agency, Inc., 209

Kan. S37, 490 Poe De C0Ga) «os ciseicccakicacsess 11

Sharp v. State, 245 Kan. 749, 783 P.2d 343, reh.

dented (2909) (Step 1B) on cscs ccueivesees 7, 8, 9, 20, 26

Sharp v. State, 250 Kan. 408, 827 P.2d 12 reh. denied

toe 8 were errr rere ror rr passim

Sharp ex rel. Stephan v. Smith, 242 Kan. 336, 747

Bt yg Pre ee ree anger passim

Webd ov. Baird, © tad. 13 €YTG6) «<i x ccdn cd ccvccipeies 27

UnNiteD STATES CONSTITUTION

US. Comak. Wee. Ws 6. liissccssacsacee eebeeee passim

U.S. Comet. qm: SIV. ok chsdekas ioe ete 10

TABLE OF AUTHORITIES - Continued

Page

SECONDARY AUTHORITIES

Chemerinsky, State Sovereignty and Federal Court

Power: The Eleventh Amendment after Pennhurst v.

Halderman, 12 Hastings Const. L.Q. 643, 664

CROGS) 6 ssc vncncenenennsacauee seal peeeeeeree le 21

Fallon and Meltzer, New Law, Non-Retroactivity,

and Constitutional Remedies, 104 Harv.L.Rev.

RFSS CISSE) ys 2 onnh:deees a ueewes4ee ene eee eee 15

Gilbert and Gorenfeld, The Constitution Should Pro-

tect Everyone — Even Lawyers, 12 Pepperdine

L.. Rav. Fo (URGE) oo sss0cichvavaewe eee eee 24

Neuborne, The Myth of Parity, 90 Harv.L.Rev. 1105

(1GF7) oc on o5 654 cba ee 85a ae ee ee 22

Shapiro, The Enigma of the Lawyer's Duty to Serve,

So NLL. Baw Far Cees sus ecsdeeeee eee eeee 27

L. Tribe, American Constitutional Law, Sec. 9-4

(TD 7G) ov skandeseaccendeese een eee cae ean eaten 15

Wichita Eagle (April 22, T00Z) oss somo scacsyeeneeu sea 21

In The

Supreme Court of the United States

October Term, 1992

REX .A. SHARP, KERRY McQUEEN, JAMES H. MORAIN

” and DANIEL H. DIEPENBROCK, as Individuals,

NEUBAUER, SHARP, McQUEEN, DREILING &

MORAIN, P.A., as a firm, and ALL OTHER

LAWYERS AS A CLASS REQUIRED BY THE

STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

-——_—- —-6

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Kansas

PETITION FOR A WRIT OF CERTIORARI

The Petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

Supreme Court of the State of Kansas entered in the

above-entitled proceeding.

OPINIONS BELOW

The opinion of the District Court of Seward County,

Kansas, is unreported, but is set forth in Appendix 1.

The opinion of the Supreme Court of the State of

Kansas is reported at 250 Kan. 408, 827 P.2d 12 (1992). See

also Appendix 2.

JURISDICTION

Jurisdiction of this Court to review the judgment of

the Supreme Court of the State of Kansas, entered Febru-

ary 28, 1992, rehearing denied on April 21, 1992, is

invoked under 28 U.S.C. Section 1257.

UNITED STATES CONSTITUTIONAL

PROVISIONS INVOLVED

amend. V provides in relevant part:

No person shall be . . . deprived of life, liberty

Or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

amend. XIV provides in relevant part:

Se:tion 1... . No State shall make or enforce any

law which shall abridge the privileges or immu-

nities of citizens of the United States; or shall

any State deprive any person of life, liberty or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of laws.

STATEMENT OF THE CASE

This is a class action suit brought by rural! Kansas

lawyers seeking damages for past violations of their con-

stitutional rights under a court appointment system that

was held unconstitutional by the unanimous Kansas

Supreme Court in State ex rel. Stephan v. Smith, 242 Kan.

336, 747 P.2d 816 (1987) (“Smith”).

1. Smith - State Court Appointment System Uncon-

stitutional, Prospective Relief Granted.

Kansas country lawyers (“Plaintiffs”) have been

court appointed to represent indigent criminal defen-

dants for many years. Over the last few years, the burden

on court appointed counsel has increased dramatically

because of the combined effect of the increase in the

number of criminal cases, the complexitiy of the criminal

and constitutional law, and the cost of maintaining a law

practice. Smith, 242 Kan. at 360-61, 368. Kansas court

appointments have been made for the last 20 years under

the Indigent Defense Services Act, and its more recent

rules and regulations promulgated by the State Board of

Indigents’ Defense Services (collectively, “Act”). See Kan.

Stat. Ann. Sec. 22-4501, et seq. and Kan. Admin. Regs.

105-1-1, et seq.

Not all Kansas attorneys were court appointed under

the Act. Only about 35% of the Kansas bar were required

to represent indigent criminal defendants. The other 65%,

located mainly in large cities where public defenders

were supplied, were not required to donate any of their

time or money to indigent criminal defense. Smith, 242

Kan. at 375-76. Thus, the country lawyers and public

defenders carried the burden of representing the indigent

criminal defendants.

Under the Act, the State Board of Indigents’ Defense

Services (“State Board”) set standards and guidelines for

compensating court appointed attorneys. Without even

considering the cost of providing legal services or the

cost of a lawyers’ overhead, the State Board adopted

regulations allowing a maximum fee of $30.00 per hour,

with a $250.00 cap in felony cases which did not go to

trial, $1,000.00 cap for cases that did go to trial, and

$100.00 cap for representation of indigent grand jury

witnesses, revocation of probation hearings, and motions

to modify sentences. Id. at 345-46, 364. But the average

office overhead for court appointed lawyers was more

than the $30.00 per hour plus out-of-pocket expenses, so

the overhead alone was more than the maximum fee

allowed, which was often reduced further by the caps. Id.

at 351. The payment of legal fees to court appointed

lawyers was cut even more, approximately another 12%

reduction in 1987, when the State legislature reduced the

State Board’s budget by 3.8% even though under the

same budget the public defenders’ salaries and paid over-

head was not reduced. Id. at 376.

Presented with these facts, the Honorable James J.

Smith, District Judge for Anderson County, entered an

order that court appointed lawyers were entitled to be

paid a reasonable fee of at least $68.00 per hour. Id. at

337-39. The Kansas Attorney General filed a Petition for

Mandamus to require Judge Smith to make appointments

of counsel to indigent criminal defendants as directed by

the Act. Id. at 340. The Kansas Supreme Court in Smith

unanimously declared the Act unconstitutional.

The Smith court held:

1. Although lawyers had an ethical obligation to

provide pro bono services, the State had the legal duty to

provide counsel for indigent criminal defendants, and the

“State had an obligation to compensate attorneys appoin-

ted.” Id. at 359-61.

2. The Act “on its face does not violate [substantive]

due process . .. , [but] the application or administration-

... could render it unreasonable and arbitrary.” Id. at 363.

3. “Attorney’s services are property . . . subject to

Fifth Amendment protection”, and since the Act did not

provide just compensation, “the system violates the Fifth

Amendment.” Id. at 370.

4. The Act violated the equal protection clause

because (a) it treated lawyers differently from other pro-

fessionals by requiring them to subsidize indigent crimi-

nal defense; and (b) it treated lawyers differently

depending on their geographic location because rural

lawyers were court appointed and lawyers in large, urban

counties were not. Id. at 373-77; 381-83.

Therefore, the Smith court struck down the Act, but

required Judge Smith to continue court appointing and

the country lawyers to continue representing indigent

criminal defendants for another 6-'/2 months (until July 1,

1988) while the State took legislative or administrative

action to comply with the Constitution. Id. at 383.

2. Sharp-Fed - Federal Court Damage Action Dis-

missed on Eleventh Amendment

Grounds.

With no State action being taken, Plaintiffs filed suit

in federal court seeking immediate injunctive relief to

protect their constitutional rights in the future and dam-

ages for violations of their constitutional rights in the

past. Sharp, et al. v. State et al. No. 88-1001-K (D. Kan.

March 16, 1988) (hereinafter referred to as “Sharp-Fed”).

On July 1, 1988, the State adopted a new indigent defense

services system which made representation voluntary

and increased the hourly fee to $50.00 per hour with no

caps or budget reductions.! To fund this new system, the

State Board’s annual budget was increased by more than

$2,000,000.00. This mooted Plaintiffs’ suit for injunctive

relief, and the remaining damage suit in federal district

court was dismissed on Eleventh Amendment grounds.

3. Sharp I - State Damage Action - Inverse Condem-

nation and Unjust Enrichment Not

Decided on Merits, All Other Causes of

Action Dismissed.

On March 16, 1988, Plaintiffs’ filed a Class Action

Petition in state district court raising numerous federal

and state substantive causes of action, including Just

Compensation/ Taking Violations.

1 But the “promise of a voluntary system in practice is

questionable as shown by the reinstitution of arbitrary caps,

albeit slightly higher than before, (Vol. 1, P. 51-52), and the

threat of budget restrictions again. (Vol. 1, P. 53).

—————

The State of Kansas moved to dismiss, claiming that

under the Takings/Just Compensation Clause Plaintiffs

were only entitled to injunctive reiief, not damages,

because Smith had already provided all the relief that was

available. Plaintiffs, however, argued that Smith was not a

damage suit so the issue was never raised and that the

State was subject to inverse condemnation actions and

had to pay from the date of the taking.

Without mentioning any of the specific causes of

action asserted, the state trial court granted the State’s

Motion to Dismiss. Plaintiffs appealed to the state court

of appeals, and, due to the importance of the issues

presented, the case was transferred to the Kansas

Supreme Court.

The Kansas Supreme Court affirmed the dismissal,

specifically finding that the theory of inverse condemna-

tion was not presented to the trial court and that inverse

condemnation actions did not apply to the taking of

services, only to the taking of real property (an issue

never presented or argued by either party). Sharp v. State,

245 Kan. 749, 783 P.2d 343 (1989) (“Sharp I”).

Plaintiffs moved for a rehearing or modification of

the decision, arguing that the decision was important for

the constitutional rights of all service providers and was

contrary to the language and intent of First Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987), which

required compensation for governmental taking of prop-

erty. The motion for rehearing was denied.

4. Sharp II - The Instant Case.

The same named Plaintiffs in Sharp I, plus a new

party, Daniel H. Diepenbrock, alleged a class action again

with inverse condemnation for taking Plaintiffs’ property

or liberty in violation of the Fifth Amendment to the

United States Constitution as one cause of action. (Vol. 1,

P. 2-26). The State of Kansas again moved to dismiss

Plaintiffs’ Petition. (Vol. 1, P. 30-40). At the Motion to

Dismiss hearing, the State argued that res judicata barred

all of the causes of action asserted, and, if not, that

Plaintiffs failed to state a cause of action for inverse

condemnation because such only applied to real, not

personal, property. (Vol. 2, P. 1-19). The State also argued

that “in essence, requiring the legislature to create a

voluntary system with double the budget, that was your

relief.” (Vol. 2, P. 5).

Plaintiffs argued that Sharp I was not res judicata

because the inverse condemnation action was supposedly

not before the court so it was never considered on the

merits; the parties were not identical; and the damage

relief sought in Sharp I was not identical to the instant

case. (Vol. 2, P. 1-19). Plaintiffs also argued that they had

stated a cause of action for inverse condemnation because

the Smith court already held that the State unconstitu-

tionally took Plaintiffs’ Fifth Amendment protected

“property”, and, as such, the United States Constitution

required the State to pay just compensation. Id. Plaintiffs

further argued that the State had been unjustly enriched,

as evidenced by the change from the involuntary to the

voluntary court appointment system requiring

$2,000,000.00 budget increase. (Vol. 2, P. 8). Nevertheless,

the district court granted Defendant’s Motion to Dismiss.

eo eee ETD

Plaintiffs timely appealed, which again due to the impor-

tance of the issues, was transferred to the Kansas

Supreme Court. (Vol. 1, P. 89-90).

As in Sharp I, the Kansas Supreme Court again relied

on a legal doctrine never even mentioned, presented, or

argued below in affirming the dismissal. This time the

Kansas Supreme Court held that its decision in Smith

applied only prospectively, so that a retroactive remedy

such as just compensation was barred. Sharp v. State, 250

Kan. 408, 827 P.2d 12, reh. denied (1992) (“Sharp II”). With

the unraised retroactivity issue suddenly being control-

ling, Plaintiffs moved for a re-hearing and submitted a 23

page brief on the following federal grounds:

1. The Fifth Amendment Just Compensation

Clause requires retroactive relief for govern-

mental takings from the date of the taking under

First Lutheran Church;

2. Since Smith and Sharp I were not applied

purely prospectively, all subsequent cases based on

Smith and Sharp I must be applied retroactively

under james B. Beam Distilling Co. v. Georgia, 501

U.S. __, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991);

and

3. Even if James Beam did not apply, the federal

retroactivity Chevron Oil factors should have

been applied when considering a federal consti-

tutional claim which would have required retro-

activity.

The State of Kansas filed a 12 page Response Brief,

and Plaintiffs filed a 4 page Brief in Reply. However, the

Kansas Supreme Court denied Plaintiffs’ Motion for

Rehearing on April 21, 1992. See Appendix 3. Accord-

ingly, Plaintiffs’ timeiy petition this Court for a writ of

certiorari.

REASONS FOR GRANTING THE WRIT

I. THE KANSAS SUPREME COURT’S ERRONEOUS

DECISION ALLOWS THE STATE TO TAKE PRI-

VATE PROPERTY FOR PUBLIC USE WITHOUT

PAYING JUST COMPENSATION WHICH IS CON-

TRARY TO THE EXPRESS LANGUAGE OF THE

JUST COMPENSATION CLAUSE, CONTRADICTS

THIS COURT’S HOLDING AND RATIONALE IN

FIRST LUTHERAN CHURCH, AND UNDERMINES

THE FUNDAMENTAL FIFTH AMENDMENT PRO-

TECTION.

The Fifth Amendment? to the United States Constitu-

tion provides in relevant part:

[NJor shall private property be taken for

public use, without just compensation.

Smith unanimously established that Plaintiff’s “pri-

vate property”? was “taken”4 by the State of Kansas for

2 The Fifth Amendment applies to the States through the

Fourteenth Amendment. See Chicago, B & Q.R. Co. v. Chicago,

166 U.S. 226 (1987).

3 The Smith court held that Plaintiffs’ money and services

were “private property”: “[T]he attorneys are deprived of

property in the form of money. We conclude that attorneys’

services are property, and are thus subject to Fifth Amendment

protection.” 242 Kan. 370.

4 In determining that the court appointed regulations went

too far constituting a taking the Smith court found: “Attorneys

make their living through their services. Their services are the

means of their livelihood. We do not expect architects to design

public buildings, engineers to design highways, dikes, and

bridges, or physicians to treat the indigent without compensa-

tion. When attorneys’ services are conscripted for the public

(Continued on following page)

“public use”.5 Nonetheless, the State of Kansas (and the

Kansas Supreme Court below) claims it can do so without

paying just compensation.® One could hardly imagine a

claim more patently wrong. Nor could one imagine a

claim, if allowed to stand, that could more severely

undermine the fundamental individual freedoms embod-

ied in the Fifth Amendment. The court below must be

overruled.”

(Continued from previous page)

good, such a taking is akin to the taking of food or clothing

from a merchant or the taking of services from any other

professional for the public good . . . We conclude that attor-

neys’ services are property, and are thus subject to the Fifth

Amendment protection. . . . [T]he [old court appointment]

system violated the Fifth Amendment.” 242 Kan. at 370.

° “The obligation to provide counsel for indigent defendants

is that of the State, not of the individual attorney.” Smith, 242 Kan.

at 359-60. “Kansas attorneys have an ethical obligation to provide

pro bono services for indigents, but the legal obligation rests on the

State, not upon the bar as a whole or upon a select few members of

the profession. Id. at 383. Of course, lawyers always have volun-

tarily fulfilled their ethical obligation, perhaps more than any other

profession or business.

¢ Although the Kansas Supreme Court in Smith did not

reach the issue of what hourly fee would be just compensation,

like the trial court’s finding of at least $68.00 per hour, it did

find that the State of Kansas under the old court appointment

system was paying less than the average office overhead of

most attorneys, thereby taking their money and paying essen-

tially nothing to the attorneys for services rendered. Smith, 242

Kan. at 351.

7 It should also be noted that under Kansas law, for pur-

poses of a Motion to Dismiss as filed by the Defendant in the

instant case, Plaintiffs’ pleadings of inverse condemnation

must be taken as true. Keith v. Schiefen-Stockman Inc. Agency,

Inc., 209 Kan. 537, 538, 498 P.2d 265 (1972).

A. A Common Law Doctrine, Such As Prospec-

tivity/Retroactivity, Cannot Overcome A Con-

stitutional Doctrine.

Without supporting authority, the Kansas Supreme

Court in Sharp II held that a regulatory taking without

just compensation was valid because Smith created “new

law” and should only be applied prospectively.® But the

legal authority is just the opposite. The Just Compensa-

tion Clause provides a specific constitutional remedy that

cannot be taken away by a common law doctrine. The

Constitution is the supreme law of the land; it cannot be

trumped by any common law doctrine, federal or state.

See, e.g., Golden State Transit v. Los Angeles, 493 U.S. 103,

107 (1989). See also infra at 26 (perhaps it is unconstitu-

tional to apply the prospectivity doctrine to any constitu-

tional rights, not only to specific remedy rights like just

compensation).

B. The Opinion Below Conflicts With The Hold-

ing Of First Lutheran Church.

Sharp II is the same argument that this Court rejected

in First Lutheran Church v. Los Angeles County, 482 U.S. 304

(1987). In that case, based on the theory that if a regula-

tion is withdrawn or amended it is only a “temporary”

taking, the California State court was overruled holding:

8 If the first time a regulation is court tested the law is

considered “changed” because the regulation is invalidated,

then the alleged “law changing decision” would never be

applied retroactively. The state legislature, like dogs, would get

“one free bite” at a person’s constitutional rights each time a

regulation is promulgated.

[A] landowner who claims his property has

been “taken” by a land-use regulation may not

recover damages for the time before it is finally

determined that the regulation constitutes a

“taking” of his property. We disagree, and con-

clude in these circumstances the Fifth and Four-

teenth Amendments to the United States

Constitution would require compensation for

that period.

Id. at 306-07. Now, the State of Kansas attempts to reach

the same result with a different theory. This time the

theory is the common law doctrine of prospectivity. This

theory is no better, and perhaps worse since it is not an

attempt to interpret away the application of a constitu-

tional doctrine but an attempt to overcome it with a

common law doctrine.

After finding that the Fifth Amendment Just Com-

pensation Clause was a “self-executing” constitutional

provision permitting an inverse condemnation action, the

Court held:

Government action that works a taking of prop-

erty rights necessarily implicates the constitu-

tional obligation to pay just compensation. . . .

The Court has frequently repeated the view that,

in the event of a taking, the compensation rem-

edy is required by the Constitution.

Invalidation of the ordinance . . . though con-

verting the taking into a “temporary” one, is not

a sufficient remedy to meet the demands of the

Just Compensation Clause. .. . The owner has a

right to bring an “inverse condemnation” suit to

recover the value of the land on the date of the

intrusion by the Government . . . [N]o subsequent

action by the government can relieve it of the

duty to provide compensation for the period

during which the taking was effective.

Id. at 315, 316, 319, 320 n.10, 321 (emphasis in original).

First Lutheran Church also quotes and cites Justice Bren-

nan’s dissent in San Diego Gas and Electric Co. v. San Diego,

450 U.S. 621, 637 (1981), where he succinctly stated the

constitutional law with respect to regulatory takings as

follows:

The government entity must pay just compensa-

tion for the period commencing on the date the

regulation first effected the “taking” and ending

on the date the government entity chooses to

rescind or otherwise amend the regulation.

Id. at 658 (J. Brennan, dissenting, joined by J.J. Stewart,

Marshall, and Powell). The Kansas Supreme Court’s opin-

ion below, however, disregards the constitutional duty to

pay from the date of the taking. That alone, on such a

fundamental constitutional right, is enough to grant a

writ of certiorari. See Limbach v. Hooven & Allison Co., 466

U.S. 353, 362 (1984) (“We are concerned with federal

issues and a contention that a state court disregarded a

federal constitutional ruling of this Court.”)

Not only is the opinion below contrary to the express

language of the Fifth Amendment and the clear holding

of First Lutheran Church, but it also ignores the intent of -

the Fifth Amendment Just Compensation Clause. o

C. The Opinion Below Disregards The Intent Of

The Fifth Amendment And Thereby Permits

States To Exploit Political Minorities.

The Fifth Amendment’s guaranty that private

property shall not be taken for public use with-

out just compensation was designed to bar gov-

ernment from forcing some. people to bear

public burdens, which, in all fairness and jus-

tice, should be borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960) (quoted

in First Lutheran Church, 482 U.S. at 318-19). See also

L.Tribe, American Constitutional Law, Sec. 9-4 (1978) (just

compensation limits government’s power to isolate par-

ticular individuals for sacrifice to the public good). This

is exactly the type of discriminatory burden which the

Smith court found abhorrent in the old court appointment

system: “Assisting the indigent is a legitimate public

goal, but cannot be accomplished at the expense of a

particular group of people.” Smith, 242 Kan. at 373.

Accord Pennell v. San Jose, 405 U.S. 1, 21-24 (1988) (Scalia,

J., concurring and dissenting in part, joined by J. O’Con-

nor). Now that just compensation must actually be made,

however, the Kansas Supreme Court wants to ignore the

discriminatory isolation of a small group of people it

previously found in Smith.

The old court appointment system unfairly singled

out a politically unpopular group based on its profession

(lawyers) and on its geographic location (rural). Next

time the exploited individuals may be based on another

profession, another geographic region, race, religion, sex,

or age. The possible regulatory abuses of power are as

endless as they are disconcerting. The Constitution has

long been a savior for the rights of individuals from the

whims of the political majority. The Fifth Amendment

Just Compensation Clause is one such protection. The

opinion below subverts that protection, and, by doing so,

paves the way for future regulatory discrimination. See

Fallon and Meltzer, New Law, Non-Retroactivity, and Con-

stitutional Remedies, 104 Harv.L.Rev. 1733, 1831 (1991)

(“strong political incentives push states to impose and

maintain discriminatory taxes”). Such discrimination can-

not be sanctioned, even for a short period of time. See San

Diego Gas, 450 U.S. at 656 (mere invalidation would fall

far short of fulfilling the fundamental purpose of the Just

Compensation Clause) (J. Brennan, dissenting, joined by

J.J. Stewart, Marshall, and Powell). To uphold the plain

language and intent of the Just Compensation Clause, just

compensation must be paid to Plaintiffs who were

unfairly singled out to shoulder a public burden.

D. The Decision Below Could Undermine All

Constitutional Rights.

The decision below conflicts with and even negates

the fundamental reason for the Just Compensation

Clause. Worse yet, if the common law doctrine of retroac-

tivity is supreme Over express remedies provided in the

Fifth Amendment, it most likely would be superior to: (1)

other express constitutional rights, such as free speech,

equal protection, and due process; (2) implied constitu-

tional remedies as previously recognized in Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics,

402 U.S. 388 (1977) and its progeny; and (3) of course,

other federal and state statutes, regulations, and common

law rights generally thought to be subordinate to the

Constitution. Worse still, the decision below may open

the door for other common law doctrines to trump consti-

tutional doctrines.? The generally accepted superiority of

° The Solicitor General argued in First Lutheran Church that

the common law doctrine of sovereign immunity prevented

(Continued on following page)

— Ee

laws (federal constitution, then federal statutes, common

law, state constitution, state statutes and state common

law) would be turned topsy-turvy or at least cast into a

state of confusion. Constitutional rights would no longer

be as secure, and the confidence generally placed in the

judiciary for objectively administering a rule of law

would be undermined as cases, even constitutional ones,

are decided on an ad hoc basis.

E. The Decision Below Is Critically Important To

All States, Counties, Cities, And Regulatory

Bodies And The Citizens Over Which They

Govern - That Means Everyone.

If the Just Compensation Clause can be read out of

existence through the retroactivity doctrine, the effect

will be to overrule or severely undercut First Lutheran

Church. The importance of this case can be gauged by

looking at First Lutheran Church. The importance of that

case can be measured by the sheer number of amicus

curiae briefs filed and the prominence of the entities

which filed them. In First Lutheran Church, thirty-four (34)

amicus briefs were filed. See 96 L.Ed.2d at 731-33. Those

writing amicus briefs in favor of allowing regulatory tak-

ings without paying just compensation (contrary to this

Court’s holding in First Lutheran Church) were the follow-

ing: Solicitor General for the United States; Attorney Gen-

erals for 23 states, Alaska, Arkansas, California, Florida,

(Continued from previous page)

operation of the Just Compensation Clause against the Govern-

ment, but that common law reason for ignoring the express

language of the Fifth Amendment was rejected. First Lutheran

Church, 482 US. at 316 n. 9.

Hawaii, Illinois, Maine, Massachusetts, Minnesota, Mis-

sissippi, Missouri, New Hampshire, New York, North

Dakota, Oklahoma, South Carolina, South Dakota, Texas,

Utah, Vermont, Virginia, Washington, and Wyoming;

Attorney General for the Commonwealth of Puerto Rico;

City of Los Angeles (joined by 15 other cities); National

Association of Counties (joined by the National League of

Cities. U.S. Conference of Mayors, National Conference

of State Legislatures, National Governors’ Association,

and others); and Conservation Foundation. Id.!° Six other

amicus briefs urged the Court to require just compensa-

tion: American College of Real Estate Lawyers; California

Association of Realtors; California Building Industry

Association; National Association of Home Builders;

National Association of Realtors; and Pacific Legal Foun-

dation. Id. at 731.

Moreover, as this case illustrates, the definition of

“property” under the Fifth Amendment is not limited

simply to real estate, so the implications for this case are

even greater than that considered in First

10 This Court recognized the substantial interest states,

counties, and cities had in First Lutheran Church, but held that

those concerns were overcome by the more fundamental con-

cerns addressed in the Fifth Amendment. “We realize that even

our present holding will undoubtedly lessen to some extent the

freedom and flexibility of land-use planners and governing

bodies of municipal corporations when enacting land-use regu-

lations. But such consequences necessarily flow from any deci-

sion upholding a claim of constitutional right; many of the

provisions of the Constitution are designed to limit the flex-

ibility and freedom of governmental authorities, and the Just

Compensation Clause of the Fifth Amendment is one of them.”

482 U.S. at 321.

Lutheran Church. The importance of this case would be

even more far reaching than First Lutheran Church since

the retroactivity doctrine here could be used to ignore

other constitutional rights, whereas, the “temporary tak-

ing” theory in First Lutheran Church was specifically lim-

ited to the Just Compensation Clause. Thus, the national

stakes are higher in this case than in the seminal case of

First Lutheran Church. Certiorari should be granted, and

the decision below reversed. .

F. Attempts By The States To Avoid Paying Just

Compensation Are A Recurring Problem With

Overwhelming Economic Implications.

Before First Lutheran Church, this Court’s own

docket'! showed the recurring nature of the just compen-

sation issue. “Four times this decade, we have considered

similar claims and have found ourselves for one reason or

another unable to consider the merits of the Agins rule.”

First Lutheran Church, 482 U.S. at 310 (citing Agins v.

Tiburon, 447 U.S. 255 (1980); San Diego Gas; MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); and

Williamson County Regional Planning Commission v. Ham-

ilton Bank, 473 U.S. 172 (1985)). Although First Lutheran

Church should have brought an end to the issue, the

instant case demonstrates’ that States continue to

seek ways to avoid the clear language of the Just

" Cases which did not reach this Court also denied effect

to the Just Compensation Clause. See, e.g., Davis v. Pima County,

121 Ariz. 343, 590 P.2d 459 (1978) (later overruled by Corrigan v.

City of Scottsdale, 149 Ariz. 538, 720 P.2d 513 (1986)).

Compensation Clause and First Lutheran Church.}?

Allowing the decision below to remain the law will no

doubt touch off an exception to First Lutheran Church that

will swallow the rule, and the Just Compensation Clause

in the process. States, for obvious financial reasons as

well as ease in planning regulations, would flock to the

exception.

The economic impact of ignoring the just compensa-

tion clause would be overwhelming. For instance, this

case involves a claim in excess of $2 million per year, for

many years. Although relative to a State’s annual budget

that is not significant, it is to those whose property has

been illegally taken. The recurring nature and magnitude

of this problem is illustrated by another Kansas case

which this Court recently reversed on constitutional

grounds. Barker v. Kansas, 503 U.S. ___, 112 S.Ct. __, 118

L.Ed. 2d 243 (April 22, 1992).

12 The recurring nature of the just compensation issue is

further demonstrated by the desperate attempt of the Kansas

Supreme Court to avoid the Just Compensation Clause in Sharp

I. In dictum, without any reasoning or legal support, and with

neither party raising the issue, the Sharp I court found that the

Just Compensation Clause only protected real, not personal,

property. This real versus personal property distinction was

squarely before the court in Sharp II, but the Kansas Supreme

Court chose to avoid its own issue. Instead, the Kansas

Supreme Court again seized on an issue never before raised by

either party, prospectivity, to accomplish the same result of

denying Plaintiffs’ just compensation. As shown herein, the

prospectivity ruling is equally without legal support, reason-

ing, or justification. Worse yet, the real versus personal prop-

erty distinction with respect to the Just Compensation Clause

remains as dictum in Sharp I.

In Barker, the Kansas Legislature decided to tax mili-

tary retiree benefits received from the United States Gov-

ernment but not retiree benefits received from state and

local governments. The Kansas Supreme Court upheld

the discrimination as rationally based, having the effect

of protecting the state fisc. The United States Supreme

Court reversed and remanded. Id. After the decision, an

attorney for the State of Kansas stated publicly that the

State of Kansas would seek in Kansas courts to avoid

retroactivity which would cost an estimated 60-100 mil-

lion dollars. Wichita Eagle (April 22, 1992) at 1, 6. The

State of Kansas in the decision below as well as in Barker

has already focused on the retroactivity doctrine as an

opportunity to avoid its constitutional obligations. It iis

vital to Kansans, as well as to all other citizens, to nip in

the bud this disregard for constitutional rights.

G. The Decision Below Actually Encourages,

Rather Than Discourages, Abuse Of Constitu-

tional Rights.

Hans v. Louisiana, 134 U.S. 1 (1890), relegates Plain-

tiffs to state court jurisdiction when they seek damages

against the State. See also, Sharp-Fed. Thus, Plaintiffs are

stuck in a potentially biased and politically pressured

court. The State is judged by its own employee - a State

judge, who is not permanently appointed or elected, and

therefore must engage in some “politics”.!3 The State

13 History shows that State courts often are inhospitable to

suits against state governments and state officers for violating

the federal Constitution.” Chemerinsky, State Sovereignty and

(Continued on following page)

controls the purse strings of the state judiciary which

Sharp II admitted left the Kansas judiciary “already

underfunded and understaffed”. 250 Kan. at 416. The

conflict of interest, or at least the appearance of impropri-

ety, is obvious.

With state court as the playing field, individuals may

only take solace in clear, unmistakable rules, without ad

hoc exceptions, such as the Constitution. However, the

opinion below permits the Constitution to be applied on

an ad hoc basis, not uniformly to everyone. So, the consti-

tutional rights can be different for some people than they

are for others. Perhaps worse than allowing the constitu-

tional rules to shift and change depending on the case, is

the possibility that this Court will become more remote in

Overseeing constitutional rights adjudicated in state

courts. Because retroactivity determinations are largely

made based on a factual analyses or a judgment call, this

Court may give up much of its power to review state

court decisions, which by some estimations (though

understandably) is already too small to have any real

deterrent effect on state courts or any remedial effect on

the numerous errors committed therein.

Moreover, even before a regulation reaches a state

court for determination of its constitutionality and ulti-

mately its retroactivity such that just compensation could

be allowed, the State Legislature will realize that it can

regulate however it wants with no risk and great poten-

tial benefits. If the regulation is invalid, retroactivity may

(Continued from previous page)

Federal Court Power: The Eleventh Amendment after Pennhurst v.

Halderman, 12 Hastings Const. L.Q. 643, 664 (1985) (citing

Neuborne, The Myth of Parity, 90 Harv.L.Rev. 1105 (1977)).

be denied so that the State gets to keep the benefit of its

ill-gotten gains. At the very least, the State will have to

disgorge what it illegally took by paying just compensa-

tion, so it essentially breaks even. In other words, over-

regulation is a no risk situation. See San Diego Gas, 450

U.S. at 655 n. 22. Perhaps the Just Compensation Clause

was never intended to deter excessive regulations, but it

was never intended to promote them. To allow an excep-

tion that leaves the victims empty-handed is to condone

unconstitutional behavior. Accordingly, the subversive

opinion below should be reversed.

H. The Decision Below Is Unjust.

Smith held that the State of Kansas had unconstitu-

tionaily taken private property from Plaintiffs. Now,

Sharp II holds that despite the unconstitutional conduct

which took approximately $2 million dollars per year

from a class of rural Kansas lawyers, the State gets to

keep what it unconstitutionally took. The State should

not be unjustly enriched by virtue of its illegal activity.

Nor should Plaintiffs be unjustly diminished while hav-

ing their constitutional rights violated. Plaintiffs do not

ask for a windfall, they only ask that the State disgorge

what it illegally took. Since Biblical times, it has been

fundamentally wrong, if not a crime, for a person, com-

pany or entity to take from anyone else something which

is not thejrs. In this particular context, it would be even

more unjust, and, indeed, ironic:

How ironic it would be if in our effort to pro-

vide justice to the indigent litigant, we deny it to

his attorney.

Gilbert and Gorenfeld, The Constitution Should Protect

Everyone — Even Lawyers, 12 Pepperdine L.Rev. 75, 86

(1984). The unjust and unconstitutional decision below

should be reversed and remanded for a determination of

what “just compensation” is.

Il. EVEN IF THE PROSPECTIVITY DOCTRINE

COULD NEGATE THE JUST COMPENSATION

CLAUSE, THE WRONG RETROACTIVITY LAW

WAS APPLIED BELOW WHICH RESULTED IN A

DENIAL OF PLAINTIFFS’ FEDERALLY PRO-

TECTED CONSTITUTIONAL RIGHTS.

_ The Court below wrongfully applied state retroac-

tivity law instead of federal law. “When questions of state

law are at issue, state courts generally have the authority

to determine the retroactivity of their own decisions.”

American Trucking Assn. v. Smith, 495 U.S. __, 110 S.Ct.

2323, 110 L.Ed.2d 148, 159 (1990). But, as here, where

federal rights are involved, the retroactivity decision “is a

matter of federal law”. Id. The reason that federal retroac-

tivity law must be applied, which is particularly applica-

ble in this case, is:

In order to insure the uniform applications of

decisions construing constitutional require-

ments and to prevent States from denying or

curtailing federally protected rights, we have

consistently required that state courts adhere to

our retroactivity decision.

Id. Therefore, the case should be reversed because the

court below applied state, rather than federal, retroac-

tivity law.

Federal retroactivity law has recently undergone sig-

nificant clarification. James B. Beam Distilling Co. v. Geor-

gia, 501 U.S. __, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991)

indicates that there are only two possibilities available:

Fully retroactive or purely prospective. “Purely prospec-

tive” means applying a new decision “neither to the

parties in the law-making decision nor to others against

or by whom it might be applied to conduct or events

occuring before the decision.” Id. at 488. “Fully retroac-

tive” means that the new decision applies “both to the

parties before the Court and to all others by and against

whom claims may be pressed, consistent with res judicata

and procedural barriers such as statute of limitations.” Id.

Fully retroactive “is overwhelmingly the norm... and is

in keeping with the traditional functions of the courts to

decide cases before them based upon their best current

understanding of the law. . . . It also reflects the declara-

tory theory of law, . . . according to which the courts are

understood only to find the law, not to make it.” Id.

(citations omitted). Purely prospective application is

“infrequently” used. Id. (citations omitted).

James Beam went further and held that if a case is not

initially applied purely prospectively, it must be applied

fully retroactively. Therefore, under James Beam, the case

below should have been applied retroactively to allow

just compensation. First, the Kansas Supreme Court did

not reserve the question of retroactivity in Smith, and

therefore, should be properly understood to have fol-

lowed the normal rule of retractive application. James

Beam, 115 L.Ed.2d at 490. Second, Smith was not applied

purely prospectively, it bound the parties before it, and

even ordered rural Kansas attorneys not before the Court

to abide by its decision. 242 Kan. 383-84. Third, the Kan-

sas Supreme Court has already applied Smith retroac--

tively or there would have been no need to consider any

causes of action in Sharp I. Accordingly, Smith should be

applied retroactively under James Beam.

There is also substantial question whether it is even

constitutional to apply constitutional law purely prospec-

tively. Three Supreme Court Justices believe prospective

application of constitutional rules, such as involved here,

is unconstitutional. James Beam, 115 L.Ed.2d at 495-96

(Blackmun, J. concurring, joined by J.J. Marshall and

Scalia) and at 496-97 (Scalia, J. concurring, joined by J.J.

Marshall and Blackmun). It appears Justice Souter may

also lean in favor of barring prospective application as

Justice White noted in James Beam. Id. at 495. (White, J.

concurring). Thus, prospective application of all deci-

sions, including the one below, may be unconstitutional.

Even if the Chevron Oil Co. v. Huson, 404 U.S. 97

(1971), factors are considered, retroactivity is still

required.'4 First, a new principle of law was not estab-

lished. The Constitution remained the same. It was

merely applied to an illegal Act. Besides, the fact that the

Act was illegal must have been clearly foreshadowed or

the Kansas Supreme Court would not have unanimously

held in Smith that it was unconstitutional, while acknowl-

edging that under old English common law it was ques-

tionable whether lawyers could be court appointed for

nothing, quoting a case over a century old holding that

attorneys must be properly compensated, relying on com-

mentators who in 1980 persuasively argued that lawyers

14 Whether Chevron Oil is still good law is questionable.

“{O]Jur decision here does limit the possible applications of the

Chevron Oil analysis, however, irrelevant Chevron Oil may oth-

erwise be to this case.” James Beam, 111 S.Ct. at 2447.

must be compensated, and recognizing that a majority of

35 American jurisdictions, especially those to recently

consider the issue, have held that court appointing law-

yers without just compensation is illegal. Smith, 242 Kan.

at 358-59 (quoting Webb v. Baird, 6 Ind. 13, 17 (1954), and

citing Shapiro, The Enigma of the Lawyers’ Duty to Serve, 55

N.Y.U.L. Rev. 737 (1980)). The State of Kansas should not

have, and did not, actually rely on the notion that law-

yers could be court appointed for free. If the State of

Kansas had actually relied, it would not have enacted a

Statute which provided some compensation for rural

attorneys and a public defender system in big cities.15

Second, the purpose of Smith was to apply the Fifth

Amendment protections to attorneys who were being

illegally court appointed. Only retroactive relief effectu-

ates the purpose of the Fifth Amendment which is to

provide just compensation.

Third, equities of the situation weigh heavily in favor

of those who were victimized. It can hardly be argued

that the State faces a hardship having to disgorge what it

unconstitutionally took relative to those who have had

their constitutional rights and property taken. Indeed, it

can be argued that this factor always weighs in favor of

retroactivity if the burden resulting from retroactivity

falls on a government entity, which has the taxing power

ages & Tobacco, 496 U.S. __, 110 S.Ct. 2238, 110 L.Ed.2d 17

(1990) also rejected the State’s argument (adopted below in

Sharp II, 250 Kan. at 415) that reimbursement is not required

because the State relied in good faith on a presumptively valid

Statute. 110 L.Ed. 2d 29, 41-45.

to spread the burden. See American Trucking, 110 L.Ed.2d

at 163. Because this is a class action, there will be vir-

tually no added burden of administration of justice on the

courts by allowing retroactive relief. There will be few, if

any, other cases arising out of this issue and no other

cases will have to be reversed or retired as a result of

retroactive application. Thus, even under the Chevron Oil

factors, retroactivity should apply and the constitu-

tionally guaranteed remedy of just compensation should

be provided to Plaintiffs.

CONCLUSION

The State of Kansas did not pay compensation when

it took Plaintiffs’ private property for a public use in the

instant case. The question is does it have to? The answer

is emphatically, “Yes”. The Just Compensation Clause

means exactly what it says — just compensation must be

paid. The remedy of just compensation for a taking is

absolute. There is no distinction based on who owns the

property (doctors, grocers, teachers, laborers, and even

lawyers are protected). There is no distinction based on

the type of public purpose, on the type of property (tang-

ible or intangible, personal or real, so long as it is “prop-

erty”), on whether the taking is a physical taking or

regulatory taking (though only regulations which go “too

far” are takings), on who determines the taking occurred

(legislative body formally by eminent domain or courts in

an inverse condemnation suit, which is particularly prev-

alent in regulatory taking cases), on when the determina-

tion is made (before the taking by the legislative body or

after the taking by the courts), on whether subsequent

government action is taken or not to invalidate, with-

draw, or amend the offending regulation, or on who

forces the subsequent action (legislature or courts). Nor is

some compensation enough. “Of all the terms used in the

Takings Clause, ‘just compensation’ has the strictest

meaning. The Fifth Amendment does not allow simply an

approximate compensation but requires ‘a full and per-

fect equivalent for the property taken.’” Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 150 (1978).

(quotation omitted) (Rehnquist, J., dissenting, joined by

C.J. Burger and J. Stevens).

As Justice Holmes aptly noted more than 50

years ago, “a strong public desire to improve the

public condition is not enough to warrant

achieving the desire by a shorter cut than the

constitutional way of paying for the change.”

First Lutheran Church, 482 U.S. 321-22 (quotation omitted).

The constitutional way in this case is to pay “just com-

pensation” to Plaintiffs for the taking. Certiorari should

be granted to do exactly that.

Respectfully submitted,

Rex A. SHARP

P.O. Box 2619

419 North Kansas

Liberal, Kansas 67905-2619

Attorney for Petitioners

APPENDIX 1

John W. Campbell, #10349

Deputy Attorney General

Kansas Judicial Center, 2nd Floor

Topeka, Kansas 66612-1597

913/296-2215

SHRP/JE

IN THE TWENTY-SIXTH JUDICIAL DISTRICT

DISTRICT COURT OF SEWARD COUNTY, KANSAS

REX A. SHARP, et al.,

Plaintiff, Case No.: 90 C 14

THE STATE OF KANSAS,

Defendant.

ee eee ee

JOURNAL ENTRY OF JUDGMENT

NOW on this 14th day of September, 1990, the above-

captioned matter comes before the court on defendant’s

motion to dismiss. The plaintiffs appear by counsel, Rex

A. Sharp of the firm of Neubauer, Sharp, McQueen, Dreil-

ing & Morain, P.A. Defendant, State of Kansas, appears

by and through Deputy Attorney General John W. Cam-

pbell. Pursuant to K.S.A. 60-255 and Sup.Ct.R. 165, the

statement of controlling facts and legal principles are as

follows:

STATEMENT OF CONTROLLING FACTS

1. Plaintiffs are attorneys at law, as well as a profes-

sional association of attorneys, who provided legal ser-

vices to indigent criminal defendants pursuant to

Indigent Defense Services Act, K.S.A. 22-4501, et seq.

(Weeks) as amended and the rules of regulations promul-

gated to the Act prior to July 1, 1988.

2. On December 15, 1987 the Kansas Supreme Court

issued its opinion in the case of State, ex rel., Stephan v.

Smith, 242 Kan. 336, 747 P.2d 816 (1987). In its opinion, the

Court held that the then current indigent defense system

was constitutionally defective. The Court ordered district

courts to continue the appointment of counsel under the

system until July 1, 1988.

3. On January 4, 1988 some of the plaintiffs filed a

Class Action Complaint and Mandamus Proceeding

against the defendant in the United States District Court.

This action was subsequently dismissed without preju-

dice on the basis of 11th Amendment immunity. The

dismissal was upheld by the Tenth Circuit Court of

Appeals. Sharp, et al. v. State, et al., No. 88-1001-K (D.Kan.

March 16, 1988); Sharp, et al. v. State, No. 88-1553 (10th

Cir. May 7, 1990).

4. On March 16, 1988 some of the plaintiffs filed a

Class Action Petition against the defendant in the District

Court of Seward County, Kansas. Summary judgment

was entered on behalf of the defendant by the Honorable

Kim D. Ramey, District Court Judge, on October 17, 1988.

(Sharp, et al. v. State, Seward County Case No. 88-C-33.)

\ eeeeeene cere ee

5. On December 8, 1989 the Kansas Supreme Court

affirmed the district court’s judgment. (Sharp v. State, 245

Kan. 749, 783 P.2d 343 (1989), rehearing denied, March 14,

1990.)

6. On January 18, 1990 plaintiffs filed a Class Action

Petition against the defendant in the District Court of

Seward County, Kansas.

CONTROLLING LEGAL PRINCIPLES

The court has considered defendant’s motion and

memorandum, as well as plaintiffs’ response. Further,

oral argument of counsel have been heard and an oppor-

tunity to submit additional case support has been given.

The following are the court’s findings regarding the legal

principles upon which its decision is based.

I. THIS COURT LACKS THE SUBJECT MATTER JURIS-

DICTION TO RETRY PLAINTIFFS’ CAUSE OF

ACTION.

In the original state action (88 C 33) some of the

plaintiffs sought to recover money damages for services

rendered to indigent criminal defendants under a variety

of legal theories. At the district court level, plaintiffs

raised their unjust compensation theory (Count II). The

Supreme Court found that the inverse condemnation the-

ory (Count I) had not been raised at the district court, but

even if it had been raised, it would not have stated a

valid cause of action.

This court lacks subject matter jurisdiction to retry

plaintiffs’ cause of action. Plaintiffs’ attempt to secure a

second action is barred by the doctrine of res judicata.

The Kansas Supreme Court held in the case of In Re Estate

of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985):

The doctrine of res judicata is a bar to a second

action upon the same claim, demand or cause of

action. It is founded upon the principle that the

party, or some other with whom he is in privity,

has litigated or had an opportunity to litigate,

the same matter in a former action in a court of

competent jurisdiction. Penachio v. Walker, 207

Kan. 54, 56, 483 P.2d 1119 (1971). The salutary

rule of res judicata forbids a suitor from twice

litigating a claim for relief against the same

party. The rule is binding, not only as to every

question actually presented, considered and

decided, but also to every question which might

have been presented and decided. Hutchinson

Nat'l Bank & Trust Co. v. English, 209 Kan. 127,

130, 495 P.2d 1011 (1972). The doctrine of res

judicata prevents the splitting of a single cause

of action or claim into two or more suits; it

requires that all the grounds or theories upon

which a cause of action or claim is founded be

asserted in one action or they will be barred in

any subsequent action. Parsons Mobile Products,

Inc. v. Remmert, 216 Kan. 138, 140, 531 P.2d

(1975). This rule is one of public policy. It is to

the interest of the state that there be an end to

litigation and an end to the hardship on a party

being vexed more than once for the same cause.

The doctrine of res judicata is, therefore, to be

given a liberal application but not applied so

rigidly as to defeat the ends of justice. Wells,

Administrator v. Ross, 204 Kan. 676, 678, 465 P.2d

966 (1970).

An issue is res judicata when there is a concur-

rence of four conditions: (1) identity in the

things sued for, (2) identity of the cause of

action, (3) identity of persons and parties to the

action, and (4) identity in the quality of the

persons for or against whom the claim is made.

Kumberg v. Kumberg, 232 Kan. 692, Syl. J 6, 659

P.2d 823 (1983); Adamson v. Hill, 202 Kan. 482,

487, 449 P.2d 536 (1969).

This case fits perfectly into the res judicata doctrine.

The claim or cause of action is identical: plaintiffs still

seek additional reimbursement for legal services per-

formed for indigent criminal defendants. The parties are

the same or in privity: Rex Sharp, his law firm, and

various members thereof versus the State of Kansas. The

facts are the same: no fact complained of in the petition

occurred prior to the entry of judgment in plaintiffs’ first

case (88-C-3). The issues are the same: are plaintiffs enti-

tled to additional reimbursement for services provided to

indigent criminal defendants prior to July 1, 1988?

Plaintiffs may contend they should be able to main-

tain Count I (inverse condemnation) of the petition

because the Supreme Court found that they failed to raise

the issue in the district court. Sharp, supra at 753-754. In

addition, they may contend that they should be able to

maintain Count II (Unjust Enrichment) of the petition

because the Supreme Court affirmed the district court’s

dismissal of the first unjust enrichment claim due to

plaintiffs’ failure to satisfy the condition precedent

required to prosecute such an action against the State.

Sharp, supra at 754.

—

Under Hutchinson National Bank, supra at 130, these

are not grounds sufficient to disregard a prior court’s

determination. Opportunity to litigate is the key to res

judicata not actual litigating. Plaintiffs could have

asserted their inverse condemnation claim in the first

district court action. Plaintiffs could have followed the

provisions of K.S.A. 46-907, as interpreted in 1981 in the

case of Wheat v. Finney, 230 Kan. 217, 220-222, 630 P.2d

1160 (1981), and met the precedent necessary for filing an

unjust enrichment claim against the state.

The fact that plaintiffs did not present their full case

before the district court is not grounds for a second

attempt.

Thus, this action is barred by the doctrine of res

judicata and should be dismissed.

II. PLAINTIFFS FAIL TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED.

In Count I of plaintiffs’ newest petition, they assert

the theory of inverse condemnation. This theory was

considered by Chief Justice Miller when, writing for a

unanimous Supreme Court (Justice Six not participating),

he found:

Even were we to consider this theory, we find

no case in which we have applied inverse con-

demnation to the taking of services. Condemna-

tion and inverse condemnation ordinarily

involve a taking of real property without the

owner’s consent. Lone Star Industries, Inc. v. Sec-

retary, Kansas Department of Transp., 234 Kan.

121, 124, 671 P.2d 511 (1983). It appears to be an

inappropriate vehicle, in light of all of the usual

and existing theories upon which recovery may

be based, and we decline to extend it to the

claims asserted here. Sharp, supra at 753-754.

This rejection is much more than dicta, it is “the law

of the case.”

The theory of inverse condemnation was examined

and rejected by the Supreme Court. Even if plaintiffs

could bring a second action, this theory would be barred.

The theory of inverse condemnation having been rejected

can not now be re-exaimined [sic]. Barlett v. Davis Corpo-

ration, 219 Kan. 148, 547 P.2d 800 (1976); Headley v. Chal-

liss, 15 Kan. 602, 606 (1875).

In Count II of plaintiffs’ petition, they assert the

theory of unjust enrichment. Even if the court did not

strike this count under the doctrine of res judicata, the

theory would not state a claim upon which relief could be

granted.

The services rendered by plaintiffs were done so

according to statute (K.S.A. 22-4519, et seq.), rules and

regulations (K.A.R. 105-11-1, et seq.), and court orders.

All of the terms of plaintiffs’ contract for services were

expressed. The duties of the attorneys were dictated by

the canon of ethics. The wages plaintiffs were to be paid

were set out by rule and regulation.

The basis of unjust enrichment lies in a promise

implied in law. Peterson v. Midland Nat'l Bank, 242 Kan.

266, 275, 747 P.2d 159 (1987). The statutes and regulations

which directed plaintiffs never promised more compensa-

tion than plaintiffs received. Without this promise,

implied in law, as it existed prior to July 1, 1988, plaintiffs

—_

can not maintain an action based on unjust enrichment.

].W. Thompson Co. v. Welles Products Corp., 243 Kan. 503,

512, 758 P.2d 738 (1988).

The Kansas Supreme Court held in Sharp, supra at

754-755:

We have found no case, and none has been

cited, which mandates the award of monetary

damages in such a case in addition to equitable

relief. We conclude that the district court did not

err when it granted summary judgment.

Plaintiffs’ petition fails to state a claim upon which

relief can be granted. It should be dismissed.

CONCLUSION

WHEREUPON, in consideration of the above, the

court finds for the defendant and grants defendant’s

motion and summary judgment is given to the defendant

State of Kansas in this matter.

IT IS SO ORDERED.

/s/ Keaton G. Duckworth

Keaton G. Duckworth

Judge of the District Court

APPROVED BY:

NEUBAUER, SHARP, McQUEEN

DREILING & MORAIN, P.A.

419 N. Kansas

P.O. Box 2619

Liberal, Kansas 67905-2619

/s/ Rex A. Sharp

Rex A. Sharp

Attorneys for Plaintiffs

STATE OF KANSAS )

COUNTY OF SEWARD ) ss

I certify that this is a full, true and

correct copy of the document on file in

this office.

Date July 13 1992

FAYE SHOEMAKER, CLERK

SEWARD COUNTY DISTRICT COURT

By Rebecca L. Alquist

PREPARED BY:

OFFICE OF THE ATTORNEY GENERAL

Robert T. Stephan

Kansas Judicial Center, 2d Floor

Topeka, Kansas 66612-1597

(913) 296-2215

/s/ John W. Campbell

John W. Campbell

Deputy Attorney General

Attorneys for Defendant

10a

APPENDIX 2

No. 66,282

Rex A. SHARP, Kerry MCQUEEN, JAMeEs H. Morain,

and Danie. H. Dierensrock, as individuals; Nevu-

BAUER, SHARP, MCQUEEN, DreEILING & Morain, P.A.,

as a firm; and all Otner Lawyers as A CLass

REQUIRED BY THE STATE OF KANSAS TO REPRESENT

Kansas INDIGENT CRIMINAL DEFENDANTS, Appel-

lants, v. THe State oF Kansas, Appellee.

SYLLABUS BY THE COURT

APPELLATE PROCEDURE - Overruling Decision -

Prospective or Retroactive Application. General princi-

ples underlying the prospective-retroactive applica-

tion of an appellate court’s overruling decision are

stated and applied.

SAME - Overruling Decision — Prospective or Retroactive

Application — Options of Appellate Court. In determin-

ing whether an overruling decision should be applied

prospectively or retroactively, an appellate court has

at least four options: (1) purely prosective [sic] appli-

cation where the law declared will not even apply to

the parties to the overruling case; (2) limited retroac-

tive effect where the law declared will govern the

rights of the parties to the overruling case but in all

other cases will be applied prospectively; (3) general

retroactive effect governing the rights of the parties to

the overruling case and to all pending and future

cases unless further litigation is barred by statutes of

limitation or jurisdictional rules of appellate pro-

cedure; and (4) retroactive effect governing the rights

of the parties to the overruling case and to other cases

pending when the overruling case was decided and

all future cases, but limited so the new law will not

govern the rights of parties to cases terminated by a

lla

judgment or verdict before the overruling decision

was announced.

3. SAME - Overruling Decision — Prospective or Retroactive

Application - Options of Appellate Court. In determin-

ing whether an overruling decision shall be applied

prospectively or retroactively, an appellate court is

free to adopt any of the alternatives set forth in

syllabus { 2, any combination thereof, or any other

rule to establish an effective date which is fair, just,

and equitable.

4. SAME - Overruling Decision — Prospective or Retroactive

Application - Considerations by Appellate Court in

Making Determination. Some of the factors com-

monly relied upon by courts in determining the pro-

spective-retroactive application of a decision include

(1) justifiable reliance on the earlier law; (2) the

nature and purpose of the overruling decision; (3) res

judicata; (4) vested rights, if any, which may have

accrued by reason of the earlier law; and (5) the effect

retroactive application may have on the administra-

tion of justice in the courts.

5. ATTORNEY AND CLIENT - Indigent Criminal Defen-

dant — Appointed Counsel — Prospective Application of

Prior Appellate Decision that Held Unconstitutional the

System then in Effect for Appointment of Counsel. In a

class action suit for damages brought by lawyers for

themselves and as representatives of all lawyers who

were required to represent indigent criminal defen-

dants in Kansas prior to July 1, 1988, pursuant to the

Indigent Defense Services Act, K.S.A. 22-4501 et seq.,

and regulations promulgated thereunder, it is held

that the decision in State ex rel. Stephan v. Smith, 242

Kan. 336, 747 P.2d 816 (1987), was prospective and

applies only to services rendered by attorneys

appointed pursuant to the Act after July 1, 1988.

12a

6. APPEAL AND ERROR - Trial Court Judgment Upheld if

Correct Even if Based on Wrong Reason. The decision of

a trial court, if correct, is to be upheld even though

the court may have relied upon an erroneous ground

or reason for its decision.

Appeal from Seward district court, Keaton G. Duck-

worTH, judge. Opinion filed February 28, 1992. Affirmed.

Rex A. Sharp, of Neubauer, Sharp, McQueen, Dreiling

& Morain, P.A., of Liberal, argued the cause and was on

the brief for appellants.

John W. Campbell, deputy attorney general, argued the

cause, and Robert T. Stephan, attorney general, was with

him on the brief for appellee.

The opinion of the court was delivered by

Homes, C.J.: Plaintiffs appeal, in what was filed as a

class action, from an order of the district court granting

summary judgment to the State and dismissing the case.

We affirm.

Plaintiffs, lawyers practicing in Liberal, Kansas,

brought this suit as a class action for themselves and as

representatives of all lawyers who were required to rep-

resent indigent criminal defendants in this state prior to

July 1, 1988, pursuant to the Indigent Defense Services

Act, K.S.A. 22-4501 et seq., and the rules and regulations

promulgated thereunder.

On December 15, 1987, the Kansas Supreme Court

decided State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.

2d 816 (1987). Smith held that the appointment of attor-

neys under the indigent defense appointment system as it

was then being applied was unconstitutional and granted

13a

prospective relief to take effect July 1, 1988. By that date,

changes were made in statutory law and in the adminis-

trative regulations, and plaintiffs do not attack the system

which has been in operation since July 1, 1988.

This is the third action filed by these plaintiffs

against the State of Kansas since our decision in Smith.

On January 4, 1988, suit was filed in the United States

District Court for the District of Kansas seeking injunc-

tive relief and monetary damages. That action was subse-

quently dismissed on 11th Amendment grounds and the

dismissal was upheld on appeal. The federal court action

has no bearing on the issues in this case and will not be

considered further in this opinion.

On March 16, 1988, plaintiffs filed a class action

petition against the State of Kansas in the district court of

Seward County, Kansas, seeking to recover money dam-

ages for legal services rendered under the then-existing

court appointment system. The district court granted the

State’s motion for summary judgment, and plaintiffs

appealed. The Kansas Supreme Court affirmed the dis-

missal of numerous causes of action for damages arising

out of the court appointment system held unconstitu-

tional in Smith. Sharp v. State, 245 Kan. 749, 783 P.2d 343

(1989), cert. denied 112 L. Ed. 2d 45 (1990) (hereinafter

referred to as Sharp I). Two of the issues raised in Sharp I

were claims for monetary damages based upon the theo-

ries of unjust enrichment and inverse condemnation. This

court found that plaintiffs had not exhausted their

administrative remedies as to the claim for unjust enrich-

ment and affirmed the trial court’s dismissal of that

alleged claim for damages. The court also found that the

inverse condemnation theory had not been raised in the

14a

trial court and therefore was not properly before the

Supreme Court. However, the court went on to note that

even if an inverse condemnation theory had been raised,

that theory would not state a valid cause of action.

Plaintiffs brought this action for damages as a class

action suit, naming the same plaintiffs as in Sharp I, plus

an additional party, Daniel H. Diepenbrock. Having

exhausted their administrative remedies, plaintiffs

renewed their unjust enrichment cause of action and also

asserted a cause of action based upon inverse condemna-

tion.

In the trial court the State filed a motion to dismiss

on the grounds that Sharp I was res judicata to the issues

in this case and that plaintiffs’ petition based upon claims

of inverse condemnation and unjust enrichment failed to

state a claim for which relief could be granted. Following

briefs and a hearing on the State’s motion, the court

adopted both arguments of the State, granted summary

judgment to the State, and dismissed plaintiffs’ petition.

Plaintiffs have timely appealed, asserting (1) that the

district court erred in finding Sharp I precluded this

action under the theory of res judicata, (2) that the district

court erred in holding that the inverse condemnation

claim failed to state a claim upon which relief could be

granted, and (3) that the court erred in holding that the

unjust enrichment claim failed to state a claim upon

which relief could be granted.

Before considering the issues raised by the plaintiffs,

there is a threshold question raised by our decision in

Smith which should be addressed and which we find

dispositive of the issues herein. In Smith the attorney

15a

general filed an original action in mandamus to compel

Judges Smith and Fromme, of the Fourth Judicial District,

to perform duties specified by the Indigent Defense Ser-

vices Act, K.S.A. 22-4501 et seq., and the rules and regula-

tions promulgated by the State Board of Indigents’

Defense Services as published at K.A.R. 105-1-1 et seq.

The respondent judges had issued orders which allegedly

violated the statutes and rules and regulations.

In Smith, former Chief Justice Miller, in a lengthy and

scholarly opinion, exhaustively reviewed the history of

appointed counsel in criminal cases and the constitu-

tionality of the statutory system as it was being adminis-

tered in Kansas at the time. In a unanimous opinion this

court held that the statutory scheme for appointment and

payment of counsel for indigent defendants as adminis-

tered violated both the federal and Kansas Constitutions.

In doing so, the court concluded:

“The present system as now operated, we have held,

violates certain provisions of the United States and the

Kansas Constitutions. Changes are required. These may

come about by both legislative and administrative action.

The adoption of different bases for computing appointed

counsel’s compensation, the budgeting and funding of

the same, and the possible extension of public defender

systems or the adoption of contracts to provide counsel

for indigents in some areas, or an intermixture of those

and possibly other solutions, takes time. Meanwhile, the

indigent criminal defendants must have counsel, and that is a

burden which the bar must continue to shoulder, at least

temporarily, under the present system.

“... Respondents are directed to comply with the present

Statutes and regulations until July 1, 1988, and to appoint

counsel under the present system until that date, taking care

l6a

to see that competent counsel are appointed and no

unreasonable burden or hardship is placed upon any

attorney or attorneys. As we indicated in our temporary

order, entered on July 17, 1987, it is the time necessarily

spent by an attorney on indigent appointments, and not

the number of appointments, which is the important fac-

tor in determining reasonableness or unreasonableness,

fairness or hardship.

“The requested order of mandamus is denied.” 242

Kan. at 383-84.

Does Smith, implicitly if not specifically, preclude the

present action because our decision that the previous

statutory scheme was unconstitutional was not to become

effective until July 1, 1988, some five and a ha!f months

after the rendering of the opinion? We think so.

Unfortunately, the issue which we now deem to be

controlling was not raised in Sharp I, although it should

have been, and as a result was not considered by this

court in reaching its prior decision. The learned trial

judge in Sharp I, in a short letter opinion, stated:

“The motion for summary judgment is granted.

“The plaintiffs brought this action for damages aris-

ing out of an alleged failure by the state to pay them for

court appointed attorney services. The plaintiffs stress

several theories which they believe entitle them to

recover. The real issue here is whether or not the plain-

tiffs have stated a cause of action upon which relief may

be granted. I think not.

“Damages alone do not create a cause of action. A

party must present a recognizable cause of action to

support their claim. The Kansas Supreme Court has ruled

in the case of State ex rel. Stephan v. Smith, 242 Kan. 336,

that the former method of compensation for appointed

17a

counsel violated the equal protection clauses of the U.S.

and Kansas Constitutions. The court required the state to

comply with existing statutes and regulations until July 1,

1988, and then adopt’ . . . different bases for computing

appointed counsel’s compensation, the budgeting and

funding of the same, and the possible extension of public

defender systems or the adoption of contracts to provide

counsel for indigents in some areas, or an intermixture of

those and possibly other solutions .... ’ The court

recognized that such action‘. . . takes time,’ and simply

stated that indigent defendants must have counsel, ‘and

that is a burden which the bar must continue to shoulder,

at least temporarily, under the present system.’

“It is clear to me that the Kansas Supreme Court

decidedly settled the issue presented by the plaintiffs.

“Accordingly, | am directing summary judgment for

the defense. Mr. Campbell is to prepare a Journal Entry

for Mr. Sharp’s review and approval.”

It appears to us that although counsel for the parties

in Sharp I made numerous constitutional and other argu-

ments, the trial court cut through all of them and actually

determined that our opinion in Smith controlled and was

to be applied prospectively only, beginning July 1, 1988.

We conclude the trial court’s interpretation of our opinion

in Smith was correct.

The determination of whether a judicial decision

which overrules prior case law or holds statutory law to

be unconstitutional should be applied prospectively or

retroactively has been the subject of literally hundreds, if

not thousands, of cases. It has also been the subject of

numerous treatises, articles, and legal encyclopedias. We

will not attempt to consider the subject at length, but

some basic principles and rules are worthy of repeating.

18a

The guiding principles underlying the prospective-

retroactive application of an appellate court’s decision are

well settled. It has long been recognized that an appellate

court has the power to give a decision prospective appli-

cation without offending constitutional principles. Carroll

v. Kittle, 203 Kan. 841, 851-52, 457 P.2d 21 (1969). See Gt.

Northern Ry. v. Sunburst Co., 287 U.S. 358, 77 L. Ed. 360, 53

S. Ct. 145 (1932); Vaughn v. Murray, 214 Kan. 457, 464, 521

P.2d 262 (1974). In Vaughn, we said, “As a matter of

constitutional law, it can safely be said, retroactive opera-

tion of an overruling decision is neither required nor

prohibited.” 214 Kan. at 464.

In the landmark case of Henry v. Bauder, 213 Kan. 751,

518 P.2d 362 (1974), this court held the longstanding

Kansas guest statute to be unconstitutional. In addition to

striking down the statute, the opinion also overruled

prior existing case law. 213 Kan. at 762. However, there

was no determination of whether the decision was to be

applied retroactively or prospectively. Shortly thereafter,

in Vaughn, 214 Kan. 456, the court was called upon to

determine the retroactive or prospective effect of its ear-

lier holding in Bauder.

In considering whether an overruling decision

should be applied prospectively or retroactively, this

court in Vaughn identified four options:

“(1) Purely prospective application where the law

declared will not even apply to the parties to the overrul-

ing case; (See cases collected 10 A.L.R.3d, § 7, p. 1393) (2)

Limited retroactive effect where the law declared will

govern the rights of the parties to the overruling case but

in all other cases will be applied prospectively; (See Car-

roll v. Kittle, 203 Kan. 841, Syl. { 10, 457 P.2d 21; and cases

19a

collected in 10 A.L.R.3d, § 8[b], p. 1399.) (3) General

retroactive effect governing the rights of the parties to the

overruling case and to all pending and future cases

unless further litigation is barred by statutes of limitation

or jurisdictional rules of appellate procedure; (See cases

collected in 10 A.L.R.3d, § 8[e], pp. 1407-1412.) and (4)

Retroactive effect governing the rights of the parties to

the overruling case and to other cases pending when the

overruling case was decided and all future cases, but

limited so the new law will not govern the rights of

parties to cases terminated by a judgment or verdict

before the overruling decision was announced. (See Hanes

v. State, 196 Kan. 404, 411 P.2d 643, and cases collected in

10 A.L.R.3d, § 8 [c, d], pp. 1401-1407.)” 214 Kan. at 465-66.

This court has also noted that “it is clear that the court is

free to adopt any of the alternatives set forth in Vaughn v.

Murray, any combination thereof, or any other rule to

establish an effective date of an overruling decision

which is fair, just and equitable.” Thome v. City of Newton,

229 Kan. 375, 379, 624 P.2d 454 (1981).

While it should be noted that the annotation found in

10 A.L.R.3d 1371 was directed to judicial decisions which

overruled prior court decisions, the principles set forth

therein have generally been applied to decisions holding

statutes to be unconstitutional, as this court did in

Vaughn.

In Vaughn, this court recognized five factors com-

monly relied upon by courts in determining the retroac-

tivity question:

“Some of the factors which have been considered are: (1)

Justifiable reliance on the earlier law; (2) The nature and

purpose of the overruling decision; (3) Res Judicata; (4)

Vested rights, if any, which may have accrued by reason

20a

of the earlier law; and (5) The effect retroactive applica-

tion may have on the administration of justice in the

courts.” 214 Kan. at 464.

Although we might have been more specific in our

concluding language in Smith, we think it is clear that the

intent of that decision was that it would only operate

prospectively beginning July 1, 1988. In Smith we held:

“Respondents are directed to comply with the present

statutes and regulations until July 1, 1988, and to appoint

counsel under the present system until that date.” 242

Kan. at 384.

Assuming, for the sake of argument, that our directions

in Smith did not clearly and specifically state the decision

was only to be applied prospectively, an evaluation of the

five factors identified in Vaughn would certainly support,

if not compel, such a conclusion.

The first factor is whether there was any justifiable

reliance on the earlier law which worked to the detriment

of the plaintiffs. Certainly the plaintiffs cannot demon-

strate any detrimental reliance in performing services

under the old system. The historical and time-honored

duty of a lawyer to provide pro bono services to the

indigent was explored in depth in Smith and need not be

repeated here. On the other hand, the State of Kansas and

the State Board of Indigents’ Defense Services had, in

good faith, relied upon the statutes and regulations since

their inception and had of necessity used general fund

tax dollars of the citizens of Kansas in doing so. Such

reliance was fully justified not only by the duly enacted

statutes but also by the historical precedent which existed

prior to the statutes and as recognized in numerous cases,

‘ee,

2la

dating back as far as Case v. Shawnee Co., 4 Kan. 511

(1868).

The second factor recognized in Vaughn is the nature

and purpose of the overruling decision. The announced

purpose of the decision in Smith was to prevent future

constitutionally inadequate compensation of attorneys. It

was not to create any new rights to additional compensa-

tion for services already rendered and paid for under the

existing law. This court recognized the seriousness of the

situation when it directed the bar of Kansas to continue to

furnish services under a system the court found to be

constitutionally deficient. That holding does not comport

with any intent to create additional retroactive rights and

certainly it was never intended that the purpose of the

decision was to reach back into the past and provide

further compensation for services already rendered.

The third factor is res judicata, and it must be con-

ceded that the principles of that doctrine are not applica-

ble to the Smith decision as it relates to the present case.

The fourth factor is the extent to which vested rights,

if any, may have accrued by reason of the earlier law.

Prior to our decision in Smith, there were no vested rights

for attorneys to receive compensation over and above the

amounts paid pursuant to the then-existing law.

The final factor from Vaughn is the effect that retroac-

tive application might bear on the administration of jus-

tice in the courts. While the actual impact would be

impossible to predict with any great degree of certainty, it

is obvious that extensive litigation and judicial time

would be required to determine on a case-by-case basis

22a

the extent to which each attorney might have been under-

compensated. Even in a class action suit, each claim

would have to be given individual attention, and consid-

eration of the numerous variables applicable to each case

would result in an intolerable burden upon an already

underfunded and understaffed judicial system.

We conclude and, therefore, hold that our decision in

Smith which found the indigent defense services system

then in effect to be unconstitutional as then applied had

prospective application only as to services rendered after

July 1, 1988. The system as administered prior to that date

controlled payment for services rendered prior to July 1,

1988, and plaintiffs have no claim or cause of action for

any additional compensation for services rendered prior

to such date.

While it is true that the trial court in this case did not

base its decision on the issue here determined, it has long

been the rule that a trial court decision which reaches the

right result will be upheld on appeal even though it is

based upon an erroneous reason. Collins v. Heavener Prop-

erties, Inc., 245 Kan. 623, Syl. { 2, 783 P.2d 883 (1989);

Prairie State Bank v. Hoefgen, 245 Kan. 236, Syl. ¥ 3, 777

P.2d 811 (1989).

In view of the decision reached herein, it is not

necessary to consider further the arguments of the plain-

tiffs.

The judgment is affirmed.

23a

APPENDIX 3

SUPREME COURT ORDER DISTRICT CASE

NO. 90C14

IN THE SUPREME COURT

OF THE STATE OF KANSAS

REX A SHARP

NEUBAUER SHARP MCQUEEN

DREILING & MORAIN P A

P O BOX 2619

LIBERAL KS 67905-2619

REX A. SHARP, ET AL., APPELLANTS,

V. NO. 91-66282-AS

STATE OF KANSAS, APPELLEE.

YOU ARE HEREBY NOTIFIED OF THE FOLLOW-

ING ACTION TAKEN BY THE COURT:

MOTION FOR REHEARING BY APPELLANT,

REX SHARP, ET AL.

DENIED.

DATE: 04/21/92

CAROL G. GREEN

CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.