Walker v. Brizendine

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NOT DESIGNATED FOR PUBLICATION No. 114,776 IN THE COURT OF APPEALS OF THE STATE OF KANSAS DEBORAH WALKER, Appellee, v. DAN BRIZENDINE, Appellant. MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September
16, 2016. Reversed and remanded with directions.

Myndee M. Lee, of Lee Law, LLC, of Overland Park, for appellant.

No appearance by appellee.

Before ATCHESON, P.J., LEBEN, J., and HEBERT, S.J.
Per Curiam: Dan Brizendine appeals the district court granting Deborah Walker's
petition for an order of protection from stalking. Brizendine argues that the district court
committed reversible error by failure to follow K.S.A. 2015 Supp. 60-31a05(a) which
states that the district court "shall advise the parties of their right to be represented by
counsel" at the hearing on the petition.

We find that the context in which our legislature used the word "shall" indicates
that it intended the advisement to the parties to be mandatory rather than directory.
Therefore, on this basis, we reverse and remand for a new hearing.
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Factual and Procedural Background

On September 17, 2015, Walker filed a verified petition for protection from
stalking against Brizendine. The district court issued a temporary order and scheduled a
hearing for September 29, 2015. On September 28, 2015, Brizendine filed a detailed pro
se answer to the petition, denying Walker's allegations and attaching several exhibits. On
September 29, 2015, he filed pro se a memorandum of points and authorities in support
of his request to deny Walker's petition.

Since the matter is being remanded to the district court on procedural grounds, we
do not set out in any detail Walker's allegations, nor do we address Brizedine's claim of
insufficient evidence to support the district court's determination that he stalked Walker.

On September 29, 2015, the district court convened a hearing on Walker's petition
at which the parties both appeared pro se. The district court at no time advised the parties
of their right to be represented by counsel and, in fact, specifically noted that "[t]his is a
pro se hearing." The district court actively participated in the proceedings and ultimately
concluded that Walker's petition should be granted.

The court issued a protection order to be effective until midnight on September 29,
2016. Brizendine thereafter retained an attorney and filed a timely notice of appeal.
Walker has not filed an appellate brief and does not otherwise appear either pro se or
through counsel in this appeal.

Did the District Court Err by Failing to Inform the Parties of Their Right to Representation by Counsel?
Brizendine complains that the district court failed to comply with K.S.A. 2015
Supp. 60-31a05(a) by informing the parties of their right to be represented by counsel.
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Resolution of this issue requires this court to interpret the language of a statute, which is
a question of law over which it has unlimited review. See Cady v. Schroll, 298 Kan. 731,
734, 317 P.3d 90 (2014). The most fundamental rule of statutory construction is that the
intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins.
Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first
attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. Cady, 298 Kan. at 738. The Kansas Protection
from Stalking Act (KPSA) states that courts shall liberally construe its provisions to
protect stalking victims and to facilitate their access to judicial protection, regardless of
whether they are represented by counsel or proceeding pro se. K.S.A. 60-31a01(b);
Dester v. Dester, 50 Kan. App. 2d 914, 917, 335 P.3d 119 (2014).

When a statute is plain and unambiguous, an appellate court should not speculate
about the legislative intent behind that clear language, and it should refrain from reading
something into the statute that is not readily found in its words. 298 Kan. at 738; see
Stanley v. Sullivan, 300 Kan. 1015, 1017, 336 P.3d 870 (2014) ("This court deems the
language of a statute to be the primary consideration in ascertaining the intent of the
legislature because the best and only safe rule for determining the intent of the creators of
a written law is to abide by the language that they have chosen to use.").

K.S.A. 2015 Supp. 60-31a05(a) plainly states: "At the hearing, the court shall
advise the parties of the right to be represented by counsel." (Emphasis added.) The word
shall ordinarily connotes an obligatory meaning, although courts sometimes treat the
word as directory when the context suggests as much. See Ambrosier v. Brownback, 304
Kan. ___, 375 P.3d 1007, 1010-12 (2016); Hawley v. Kansas Dept. of Agriculture, 281
Kan. 603, 618, 132 P.3d 870 (2006); Scalia and Garner, Reading Law: The Interpretation
of Legal Texts, p. 112-15 (2012).

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In State v. Raschke, 289 Kan. 911, 921, 219 P.3d 481 (2009), our Supreme Court
designated four factors to weigh when "determining whether the legislature's use of 'shall'
makes a particular provision mandatory or directory: (1) legislative context and history;
(2) substantive effect on a party's rights versus merely form or procedural effect; (3) the
existence or nonexistence of consequences for noncompliance; and (4) the subject matter
of the statutory provision, e.g., elections or notice on charges for driving under the
influence."

The first Raschke factor is illuminating. The provision stating the district court
shall advise the parties of their right to be represented by counsel has been a part of the
KPSA since its adoption in 2002. See L. 2002, ch. 141, sec. 5; Smith v. Martens, 279
Kan. 242, 248-50, 106 P.3d 28 (2005) (discussing the KPSA's legislative history).
However, we have not been directed to any legislative history or testimony addressing
this specific provision. We thus proceed from the apparently unambiguous use of the
word shall as requiring the district court to take a specific course of action.

The text of the statute indicates that the legislature knew how to switch between
mandatory and directive language. All three sentences contained in subsection (a) contain
the word shall:

"(a) Within 21 days of the filing of a petition under the protection from stalking
act a hearing shall be held at which the plaintiff must prove the allegation of stalking by a
preponderance of the evidence and the defendant shall have an opportunity to present
evidence on the defendant's behalf. Upon the filing of the petition, the court shall set the
case for hearing. At the hearing, the court shall advise the parties of the right to be
represented by counsel." (Emphasis added.) K.S.A. 2015 Supp. 60-31a05(a).




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The remainder of the statute, however, uses "may":

"(b) Prior to the hearing on the petition and upon a finding of good cause shown,
the court on motion of a party may enter such temporary relief orders in accordance with
K.S.A. 60-31a06, and amendments thereto, or any combination thereof, as it deems
necessary to protect the victim from being stalked. Temporary orders may be granted ex
parte on presentation of a verified petition by the victim supporting a prima facie case of
stalking.
"(c) If a hearing under subsection (a) is continued, the court may make or extend
such temporary orders under subsection (b) as it deems necessary." (Emphasis added.)
K.S.A. 2015 Supp. 60-31a05(b)-(c).

"[T]he obvious intent of the legislature in specifically changing the wording of the
statute from the permissive 'may' to the mandatory 'shall' cannot be overlooked."
Szoboszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983).

The second Raschke factor also weighs in favor of a mandatory meaning. The
district court's compliance with shall in this instance has a substantive rather than simply
procedural effect on the rights of both parties. Taken with the fourth Raschke factor, the
context would indicate a legislative intent that neither party should have to stand alone
before the court in an emotional situation affecting the personal safety of the petitioner
and the competing perceptions of the respondent.

Certainly, in the context of the criminal law, "the right to counsel in Kansas is not
only guaranteed by our federal and state constitutions, but rather the Kansas Legislature
has specifically codified the right to assistance of counsel in this state." State v. Lawson,
296 Kan. 1084, 1093, 297 P.3d 1164 (2013). The consequences of not advising a person
of his or her right to counsel can deprive a party of important protections. See Sola-
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).

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Admittedly, actions for protection from stalking arise under the Kansas Civil
Code, rather than directly under the criminal laws. But a restraining order can impose
very real consequences, both direct and collateral, including potential criminal
proceedings for noncompliance. See K.S.A. 2015 Supp. 60-31a06. Applying the third
Raschke factor, these potential consequences cannot be simply dismissed as being only
"formal" or "procedural." In this instance Brizendine was ordered to "not enter or come
on or around the premises, the residence . . . where the protected person resides, stays or
works," which effectively rendered him unable to reside in his adjacent apartment.

The legislature, by use of the mandatory term shall, has statutorily recognized the
importance of advising parties of their right to assistance of counsel in the context of
proceedings for protection from stalking. The failure of the district court to do so
constitutes reversible error. Brizendine is entitled to a new hearing.

Upon careful review of the transcript of the September 29, 2015, hearing, we
direct that a different district court judge be assigned to this case for all proceedings on
remand.

Reversed and remanded with directions.