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Bad Education: Does the New Kansas Law Criminalizing Falsely Representing Oneself as an Election Official Pass Constitutional Muster? [K.S.A. § 25-2438 / League of Women Voters of Kansas, et al., v. Schwab (Kan. 3d Dist. Ct. 2021) (2021-CV-000299)]

Taylor Murray | April 29, 2022 | PDF Version (228 KB)

Summary: The Kansas Legislature enacted K.S.A. § 25-2438, which makes it a felony to falsely represent oneself as an election official. Kansas voter education groups filed suit, claiming that the wording of the statute keeps them from engaging in protected political speech because of fear of prosecution. The Shawnee County District Court rejected the plaintiffs’ request for a preliminary injunction without fully acknowledging the confusion generated by the statute’s construction.

Preferred Citation: Taylor Murray, Bad Education: Does the New Kansas Law Criminalizing Falsely Representing Oneself as an Election Official Pass Constitutional Muster?, 61 Washburn L.J. Online (2022) 97,


I. Introduction

In 2021, the Kansas Legislature enacted K.S.A. § 25-2438, which is designed to enhance election security.[1] The statute makes it a felony to falsely represent oneself as an election official. The statute states:

(a) False representation of an election official is knowingly engaging in any of the following conduct by phone, mail, email, website or other online activity or by any other means of communication while not holding a position as an election official:
(1) representing oneself as an election official;
(2) engaging in conduct that gives the appearance of being an election official; or
(3) engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official.[2]


In the face of the new legislation, voter education advocates claim they are reluctant to engage in political speech organizing and registering voters because they fear prosecution.[3] They argue that the statute infringes on protected political speech and is unconstitutionally vague and overbroad.[4] These Kansas voter education groups argue the Legislature chose to word the statute in such a way that provisions (a)(2) and (3) require no element of deceptive intent.[5]

In July 2021, a group of nonprofit organizations, including the League of Women Voters of Kansas, filed suit against the law in Shawnee County District Court.[6] In an order denying the plaintiffs’ request for a preliminary injunction, the Shawnee County District Court analyzed the law under both a rational basis test and the Anderson-Burdick “flexible balancing” test.[7] The court asserted, persuasively, that the word “knowingly”[8] in the statute serves to resolve much of the ambiguity asserted by the plaintiffs.[9] However, the court failed to fully acknowledge the confusion generated by the statute’s unusual wording, the scope of which is hard to determine without assuming that some parts of the law are redundant. This remaining ambiguity is enough to raise genuine concerns about the statute’s constitutionality.

II. Background

A. Kansas House Bill 2183

Concerns about the security of the 2020 elections led to a wave of state legislation purporting to make the election process more secure.[10] K.S.A. § 25-2438 originated as Kansas House Bill 2183 (“HB 2183”). HB 2183 included a number of such provisions, including restrictions on delivering advance ballots (“ballot harvesting”) and new signature-matching requirements.[11] The bill created a new felony crime, “false representation of an election official.”[12] Impersonation of a public official is already illegal under a different Kansas statute, but that statute more clearly requires an element of intent and makes the offense only a misdemeanor.[13] HB 2183 was passed over Democratic Governor Laura Kelly’s veto.[14] Voter education groups, including the League of Women Voters of Kansas and Loud Light, Inc., paused voter registration drives as a result of the law.[15] Douglas County District Attorney Suzanne Valdez announced that her office will not prosecute violations of the new law.[16] In response, Kansas Attorney General Derek Schmidt clarified that his office is empowered to prosecute crimes anywhere in the state.[17]

B. Legal Background

Section 11 of the Kansas Constitution reads: “The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects....”[18] Despite its arguably broader wording, Kansas courts have treated Section 11 as providing the same rights and as limited to the same restrictions as the First Amendment of the United States Constitution.[19]

Content-based regulations of constitutionally protected speech “are presumptively unconstitutional.”[20] These types of regulations require the court to apply a strict scrutiny analysis, “which requires the [g]overnment to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”[21] However, not all categories of speech are protected by the First Amendment, and the government can sometimes regulate unprotected categories of speech based on the content of that speech.[22] For example, the government cannot discriminate within an unprotected category of speech.[23]

The government must also be careful not to include too much protected speech when it regulates unprotected speech.[24] At issue in the plaintiffs’ suit is whether sections (a)(2) and (a)(3) of K.S.A. § 25-2438 are unconstitutionally vague or overbroad.[25] Vague regulation means that a “reasonable person cannot distinguish between permissible and impermissible speech because of the difficulty encountered in assigning meaning to language.”[26] Vague laws can be unconstitutional either because they fail to provide notice of what is legal or illegal, or because they “authorize and even encourage arbitrary and discriminatory enforcement.”[27] Overbreadth is a closely related concept; it means that the regulation “prohibit[s] protected as well as non-protected speech.”[28] Legislation will not be struck down simply because it is overbroad, but in assessing content-based restrictions on speech, courts must go beyond a simple balancing of costs and benefits and apply “the most exacting scrutiny.”[29] For example, in United States v. Stevens, the Supreme Court found that a federal statute purporting to ban depictions of animal cruelty would also criminalize any depiction of animals being wounded or killed and thus could criminalize hunting videos.[30]

The overbreadth doctrine was developed especially for laws that “chill,” or threaten to keep parties from engaging in First Amendment protected speech due to fear of prosecution.[31] If such a law “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep,’” the proper remedy is invalidation of the law until it can be narrowed to no longer threaten protected speech.[32] Laws become increasingly subject to an overbreadth challenge as the behavior they prohibit shifts from conduct to “pure speech.”[33]

Notably, speech that is itself a criminal act is not protected speech.[34] However, it is often difficult to draw a line between fraud and protected political speech without capturing some constitutionally protected speech.[35] For example, in United States v. Alvarez, the Court applied First Amendment protection to intentional lies.[36] Now, lower courts must take Alvarez into account when determining whether, for example, “federal and state statutes regulating deception in political campaigns [can] survive First Amendment scrutiny.”[37] These changes, based on what was previously thought a nearly settled area of law, are only one example of how courts must today “navigate the...‘quagmire’...[of] effectively protecting critical political speech, while at the same time acknowledging government’s very legitimate interest in deterring political fraud.”[38]

III. Decision of the Shawnee County District Court

In July 2021, a group of nonprofit organizations, including the League of Women Voters of Kansas, filed suit against the law in Shawnee County District Court.[39] The plaintiffs made their constitutional claim under the terms of the Kansas Constitution, not the First Amendment of the United States Constitution.[40] Plaintiffs asserted that the word “knowingly” in the statute is effectively negated by provisions (a)(2) and (3): “engaging in conduct that gives the appearance of an election official” and “engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official.”[41] They argued that despite the fact that they make reasonable efforts to ensure otherwise, “volunteers with the nonprofits know they are often mistakenly perceived as election officials.”[42]

The plaintiffs requested a partial temporary injunction.[43] On September 16, 2021, the Shawnee County District Court denied plaintiffs’ request, holding that the plaintiffs did not “demonstrate[] a substantial likelihood of eventually prevailing on the merits” sufficient to grant an injunction.[44] The court rejected the plaintiffs’ assertion that Section 11 of the Kansas Bill of Rights provides more protection than the First Amendment.[45] The court similarly rejected plaintiffs’ assertion that HB 2183 deserved a First Amendment strict scrutiny analysis. According to the court, the law “requires a culpable state of mind on the part of the actor; there is no violation based solely on the subjective perception of a bystander.”[46] With this conclusion in mind, the court held that it easily survives a balancing analysis and would also survive exacting scrutiny.[47]

IV. Commentary

Although the court held that the word “knowingly” provides the requisite element of intent to prevent provisions (a)(2) and (3) from applying to protected speech, it failed to fully consider the remaining ambiguity. The government may design a constitutional law forbidding intentional impersonation.[48] However, it is questionable whether the statute is that law. First, even though the drafters of the statute are careful to use the word “conduct” throughout, it appears that the provision in fact regulates some pure speech. Second, due to vagueness in its construction, the statute threatens to impede a substantial amount of protected speech.

A. Although the Statute Purports to Regulate Conduct, It Also Regulates Pure Speech

Laws that regulate conduct are less likely to be overbroad, while laws that regulate pure speech are more so.[49] The drafters of K.S.A. § 25-2438 were careful to address the statute to target “conduct,” but a close reading of the statute suggests confusion between speech and conduct.

Provisions (a) and (a)(1) prohibit “knowingly engaging in any of the following conduct by phone, mail, email, website or other online activity or by any other means of communication…” including falsely “[r]epresenting oneself as an election official.”[50] When read in conjunction with provision (a), it is unclear what type of conduct is implicated by (a)(1). “[C]ommunication” or “representation” are the only things mentioned which might reasonably qualify as “conduct,” even though both of those things appear roughly synonymous with speech. Black’s Law Dictionary defines “representation” as “[a] presentation of fact—either by words or conduct—made to induce someone to act.”[51] Based on (a)(1), it seems that the drafters may read “conduct” to include pure speech.

Read in conjunction with provision (a), provisions (a)(2) and (a)(3) prohibit “knowingly engaging in any of the following conduct...engaging in conduct that gives the appearance of being an election official” and “engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official.”[52] Courts must attempt to interpret statutory language so that no part is rendered meaningless or redundant.[53] If provision (a)(1) includes conduct over and above pure speech, it is almost impossible to read these three clauses so that none of them are redundant. Provision (a)(1) appears to prohibit the conduct of falsely and intentionally representing an election official, and (a)(2) and (a)(3) also appear to prohibit the conduct of falsely and intentionally appearing to be an election official. It is difficult to glimpse daylight between these two definitions.

The carefully considered “plain meaning of the words used in [a] statute” is the first and best guide to the statute’s intended effect.[54] The most natural reading of the statute is that (a)(1) addresses pure speech, while (a)(2) and (a)(3) address conduct which is not speech, but which is calculated to give the same impression. This reading has the additional benefit of avoiding redundancy.

B. The Statute Impedes a Substantial Amount of Protected Speech

Even if the plaintiffs can show that the statute implicates pure speech, they still must show that this effect is substantial enough to invalidate the law.[55] Furthermore, only constitutionally protected speech will be included in this calculus.[56] Thus, to be invalidated, the statute must threaten a substantial amount of constitutionally protected speech.

Assume, for the sake of argument, that the Legislature did have an ulterior motive in crafting this statutory language. It would attempt to word the law broadly enough to create a chilling effect but would publicly represent the law’s scope as narrow. To achieve this effect, it would likely take advantage of the confusion inherent in current First Amendment doctrine.[57] On the other hand, the Legislature’s political opponents have their own incentive to portray the law as broader than it really is. Yet overbreadth is not a subjective test.[58] If the government presents an apparent threat of punishment for protected speech, that speech has been chilled.[59]

Even excepting (a)(1), which the plaintiffs did not challenge in their complaint, it is difficult to determine the functional difference between (a)(2) and (a)(3). The Shawnee County District Court held that “[t]he statute requires a culpable state of mind on the part of the actor” and does not depend on the subjective belief of another.[60] In the court’s reading, the statute “requires that the reasonably certain that what he or she is doing gives the appearance of or causes another person to believe that he or she is [an election official].”[61] Note, however, that if “gives the appearance of” and “causes another person to believe” both rely on the actor’s reasonable belief about the reasonable perception of a bystander, these clauses are redundant. An alternate reading suggests that provision (a)(2) (“gives the appearance of”) prohibits conduct that would suggest to a reasonable person that the actor is an election official. Meanwhile, provision (a)(3) (“causes another person to believe”) removes the requirement that the subject reasonably interpret the conduct, prohibiting any action that the actor knows or reasonably believes will result in an observer believing, reasonably or not, that the actor is an election official. Such a reading preserves the element of intent for the actor—but would also clearly prohibit some protected speech based only on the subjective belief of the listener. It would prohibit a volunteer worker distributing brochures or dispensing information with the knowledge that this conduct will cause some observers to unreasonably believe the volunteer is an election official, a scenario that the plaintiffs specifically mention in their complaint.[62] Jacqueline Lightcap, co-president of the League of Women Voters of Kansas, says voter education efforts and official election officer activity share overlapping goals and can be easily confused.[63] The court correctly chastises plaintiffs for “downplay[ing]...almost to the point of ignoring” the word “knowingly” in their complaint.[64] However, the court similarly glides over the bizarre language of (a)(3) when it says “the crime is to claim, through knowing conduct, to be something one is not.”[65] This reasoning does not explain why provisions (a)(1), (a)(2), and (a)(3) are different provisions, or indeed why the statute is so unlike the type of court-approved anti-impersonation laws which are used to defend its legality.[66] The statute’s ambiguity means that voter education groups are legitimately threatened with prosecution under this law.

V. Conclusion

Overbreadth challenges “should be employed sparingly and only as a last resort,”[67] and the statute may well survive a proper constitutional analysis. However, given the important speech rights at stake, it is important to acknowledge the confusion inherent in its construction. This confusion suggests that the statute is unconstitutionally overbroad. 

1. Kan. Stat. Ann. § 25-2438 (2021); Amended Petition at 22, League of Women Voters of Kansas et al. v. Schwab (Kan. 3d. Dist. Ct. 2021), [] [hereinafter “League Complaint”]; see also Minutes for HB2183: Hearing Before Comm. on Elections (Ks. 2021) (statement of Rep. Carpenter), []. [Return to Text]

2. Kan. Stat. Ann. § 25-2438.  Provision (a)(3) has an unusual wording that is not common to anti-impersonation statutes.  See, e.g., Kan. Stat. Ann. § 21-5917 (2021); Mo. Stat. § 575.120 (2021); 18 U.S.C. § 912.  In some ways, it resembles part of a definition of equitable estoppel.  E.g., John Deere Co. v. Van Conet, 174 N.W.2d 85, 87 (Neb. 1970) (“Where one, by his words or conduct, willfully causes another to believe in the existence of a certain state of facts, and induces him to act on that belief or to alter his previous condition . . . .”).  Equitable estoppel includes an element of reasonableness in the subject’s perception.  Steckline Commc’ns, Inc. v. J. Broad. Grp. Of Kansas, Inc., 388 P.3d 84 (Kan. 2017) (citing Owen Lumber Co. v. Chartrand, 157 P.3d 1109 (Kan. 2007)).  Provision (a)(3) also resembles laws prohibiting harassment and stalking.  E.g., Ohio Rev. Code Ann. § 2903.211(a)(1) (West 2021) (“No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm . . . or cause mental distress . . . .”). [Return to Text]

3. Ryann Brooks, League of Women Voters Kansas Halts Voter Registration Efforts as New State Law Goes into Effect, Emporia Gazette (Jul. 3, 2021), []. [Return to Text]

4. League Complaint, supra note 1, at 55. [Return to Text]

5. Id. at 51–53. [Return to Text]

6. Jason Tidd, As Kansas District Attorney Refuses to Enforce Election Law, Voter Groups Won’t Resume Registration Drives, Topeka Capital-J. (Aug. 2, 2021), []. [Return to Text]

7. Memorandum Decision and Order at 11–12, League of Women Voters of Kansas, et al. v. Schwab (Kan. 3d Dist. Ct. 2021), [] (order denying preliminary injunction) [hereinafter “Denial of Injunction”.  The Anderson-Burdick test analyzes election laws by asking whether the burden of the election restriction outweighs the state’s asserted interests in imposing the burden.  Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008).  The court also said that, if necessary, the law “could pass more stringent scrutiny.”  Denial of Injunction, supra at 12. [Return to Text]

8. “Knowingly” was inserted into the bill that became K.S.A. § 25-2438 at a very late stage of its development, in the Senate Conference Committee.  S. Comm. Rep., at 1 (Ks. 2021) (Conf Rep.), []. [Return to Text]

9. Denial of Injunction, supra note 7, at 7–8. [Return to Text]

10. Voting Laws Roundup: May 2021, Brennan Ctr. for Just. (May 28, 2021), []. [Return to Text]

11. Elections and Voting; Senate Sub. For HB 2183, Kan. Legis. Rsch. Dep’t, [] (last visited Jan. 22, 2022). [Return to Text]

12. Id. at 1–2.  Violations are punishable by up to 17 months in prison and a $100,000 fine.  Sherman Smith, Voting Rights Attorneys Argue Whether New Kansas Law Blocks Registration Drives, Kan. Reflector (Sep. 14, 2021, 12:32 PM), []. [Return to Text]

13. Kan. Stat. Ann. § 21-5917 (2021). [Return to Text]

14. Tidd, supra note 6. [Return to Text]

15. Id. [Return to Text]

16. Id.  Douglas County District Attorney Suzanne Valdez stated: “This law criminalizes essential efforts . . . to engage Kansans on participation in accessible, accountable and fair elections.  It is too vague and too broad and threatens to create felons out of dedicated defenders of democracy.”  Id. [Return to Text]

17. Id. [Return to Text]

18. Kan. Const. Bill of Rts. § 11.  Compare the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  U.S. Const. amend. I.  Note that while the United States Constitution expresses the free speech right as a negative right, the Kansas Constitution expresses it as a positive right.  Kan. Const. Bill of Rts. § 11. [Return to Text]

19. Prager v. State Dep’t of Revenue, 20 P.3d 39, 64 (Kan. 2001) (“[W]e have treated both provisions as ‘generally coextensive.’”). [Return to Text]

20. See Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). [Return to Text]

21. Id. at 171 (quoting Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). [Return to Text]

22. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382–83 (1992). [Return to Text]

23. Id. at 384. [Return to Text]

24. See United States v. Stevens, 559 U.S. 460, 473 (2010). [Return to Text]

25. League Complaint, supra note 1, at 55. [Return to Text]

26. Richard A. Parker & David L. Hudson, Jr., Overbreadth, First Amend. Encyclopedia (Sep. 2017), []. [Return to Text]

27. City of Chicago v. Morales, 527 U.S. 41, 56 (1999). [Return to Text]

28. Parker & Hudson, supra note 26. [Return to Text]

29. United States v. Alvarez, 567 U.S. 709, 724 (2012). [Return to Text]

30. United States v. Stevens, 559 U.S. 460, 474 (2010). [Return to Text]

31. Virginia v. Hicks, 539 U.S. 113, 118–19 (2003). [Return to Text]

32. Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). [Return to Text]

33. Id. at 124. [Return to Text]

34. Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).  The Court states in dicta that laws that prohibit a sex offender from contacting a minor would be an example of laws governing unprotected speech.  Id. [Return to Text]

35. See United States v. Alvarez, 617 F.3d 1198, 1211 (9th Cir. 2010), aff’d, 567 U.S. 709 (2012).  The Roberts Court has invigorated the First Amendment and expanded protected categories of speech to include categories with seemingly no social value.  See Marc. O. DeGirolami, The Sickness Unto Death of the First Amendment, 42 Harv. J. L. & Pub. Pol’y 751, 773–74 (2019); see also Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (Kagan, J., dissenting) (Justice Kagan accused the majority of “weaponizing the First Amendment”); see, e.g., Stevens, 559 U.S. 460 (protecting animal crush videos); Snyder v. Phelps, 556 U.S. 443 (2011) (protecting hate speech); Alvarez, 567 U.S. 709 (protecting lies); Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018) (striking down regulations of anti-abortion pregnancy health clinics).  Lower courts have extended the protection of the First Amendment to deception by investigative reporters.  See Animal Legal Def. Fund v. Kelly, 9 F.4th 1219 (10th Cir. 2021). [Return to Text]

36. Alvarez, 567 U.S. at 729–30. [Return to Text]

37. Catherine J. Ross, Ministry of Truth: Why Law Can’t Stop Prevarications, Bullshit, and Straight-Out Lies in Political Campaigns, 16 First Amend. L. Rev. 367, 388 (2017). [Return to Text]

38. Martin H. Redish & Julio Pereyra, Resolving the First Amendment’s Civil War: Political Fraud and the Democratic Goals of Free Expression, 62 Ariz. L. Rev. 451, 458 (2020). [Return to Text]

39. Tidd, supra note 6.  When the plaintiffs filed suit and the court ruled on the preliminary injunction, HB 2183 had not yet been codified as K.S.A. § 25-2438.  See generally League Complaint, supra note 1; Denial of Injunction, supra note 7. [Return to Text]

40. League Complaint, supra note 1, at 45. [Return to Text]

41. Id. at 30. [Return to Text]

42. Smith, supra note 12. [Return to Text]

43. Judge Refuses to Block Enforcement of Kansas Election Law, AP (Sep. 16, 2021), []; League Complaint, supra note 1, at 6. [Return to Text]

44. Denial of Injunction, supra note 7, at 14. [Return to Text]

45. Id. at 4. [Return to Text]

46. Id. at 9. [Return to Text]

47. Id. at 12. [Return to Text]

48. See United States v. Bonin, 932 F.3d 523, 524 (7th Cir. 2019), cert. denied, 140 S. Ct. 960 (2020) (applying “exacting scrutiny,” as in Alvarez, without holding that intermediate scrutiny could not also be applied); see also United States v. Chappell, 691 F.3d 388, 394 (4th Cir. 2012). [Return to Text]

49. See Virginia v. Hicks, 539 U.S. 113, 124 (2003). [Return to Text]

50. Kan. Stat. Ann. § 25-2438(a). [Return to Text]

51. Representation, Black’s Law Dictionary (11th ed. 2019). [Return to Text]

52. Kan. Stat. Ann. § 25-2438(a). [Return to Text]

53. State v. Roeder, 336 P.3d 831, 848 (Kan. 2014). [Return to Text]

54. Hulme v. Woleslagel, 493 P.2d 541, 547 (Kan. 1972). [Return to Text]

55. United States v. Stevens, 559 U.S. 460, 473 (2010). [Return to Text]

56. Virginia v. Hicks, 539 U.S. 113, 118–19 (2003). [Return to Text]

57. See Larry Alexander, There Is No First Amendment Overbreadth (But There Are Vague First Amendment Doctrines); Prior Restraints Aren’t “Prior”; and “As Applied” Challenges Seek Judicial Statutory Amendments, 27 Const. Comment. 439, 440–41 (2011) (“Even a citizen well-versed in these first amendment tests . . . will not be at all certain in a pretty broad swath of situations whether or not his proposed speech will turn out to be constitutionally protected.”); see also Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 Va. L. Rev. 301, 354 (2012).  Keller & Tseytlin point out that “overbroad” laws have a chilling effect because they regulate both protected and unprotected speech.  However, under a traditional analysis, courts cannot invalidate a statute in its entirety if the statute has any valid application.  Id.  Keller & Tseytlin suggest that courts may have developed invalidation under an overbreadth analysis to solve this problem.  Id. [Return to Text]

58. See Speech First, Inc. v. Schlissel, 939 F.3d 756, 764–65 (6th Cir. 2019). [Return to Text]

59. See id. [Return to Text]

60. Denial of Injunction, supra note 7, at 10. [Return to Text]

61. Id. [Return to Text]

62. League Complaint, supra note 1, at 3. [Return to Text]

63. Brooks, supra note 3 (We are sometimes at events side-by-side with election officers who are doing similar work—and we work together.). [Return to Text]

64. Denial of Injunction, supra note 7, at 9. [Return to Text]

65. Id. at 13. [Return to Text]

66. See generally id. [Return to Text]

67. Smith v. Martens, 106 P.3d 28, 37 (Kan. 2005). [Return to Text]