collateral order doctrine in Kansas

2007The exception, the collateral order doctrine, was recognized in Skahan v. Powell, 8 Kan.

2007The Court of Appeals further noted that federal courts had relied on the collateral order doctrine, an exception to the federal act, to hold that an order disqualifying an attorney from representing a litigant is appealable. 8 Kan.

2024The collateral order doctrine "permits an exception to the final order requirement in limited circumstances." In re T.S.W., 294 Kan. 423, 431 , 276 P.3d 133 (2012).

2022The collateral order doctrine provides that an order may be collaterally appealable if it: "(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. [Citation omitted.]" In re T.S.W., 294 Kan. 423, 434 , 276 P.3d 133 (2012).

2018App. 2d 353 , 579 P.2d 167 (1978), we refused to apply the collateral order doctrine to an order denying a motion to dismiss on double jeopardy grounds, even though federal courts have done so.

2018We found it significant that the federal statute, 28 U.S.C. § 1291 (1982), allowed federal courts of appeals to review "all final decisions of the district courts" in both civil and criminal cases, unlike the Kansas statute that permits a criminal defendant to appeal only after a judgment. 2 Kan.

2018The first, Cohen v. Beneficial Loan Corp. , 337 U.S. 541 , 546, 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), merely established the three elements of the collateral order doctrine later adopted by the Kansas Supreme Court in Kansas Medical Mut.

2018The first, Cohen v. Beneficial Loan Corp. , 337 U.S. 541 , 546, 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), merely established the three elements of the collateral order doctrine later adopted by the Kansas Supreme Court in Kansas Medical Mut.

2018Harsch v. Miller , 288 Kan. 280 , 290, 200 P.3d 467 (2009).

2010More recently, in Harsch, 288 Kan. at 290 , this court emphasized that a party is in a risky position when relying on the collateral order doctrine.

2016For example, the New Mexico Court of Appeals determined in State v. Apodaca, 123 N.M. 372, 375 , 940 P.2d 478 (Ct. App. 1997), that while its Supreme Court “expressed substantial agreement with the collateral order doctrine in civil cases,” it had yet to permit an appeal under that exception.

2016For example, the New Mexico Court of Appeals determined in State v. Apodaca, 123 N.M. 372, 375 , 940 P.2d 478 (Ct. App. 1997), that while its Supreme Court “expressed substantial agreement with the collateral order doctrine in civil cases,” it had yet to permit an appeal under that exception.

2016Accordingly, the exception employs a "'practical rather than a technical construction'" of the statute and uses a factor test to determine whether a decision that fails to terminate the action as a whole is nonetheless appealable under § 1291. 431 U.S. at 658 . 4 After considering the various facets of the collateral order exception, the United States Supreme Court determined that pretrial orders to dismiss for double jeopardy reasons were indeed immediately appealable. 431 U.S. at 659 .

2016After considering the various facets of the collateral order exception, the United States Supreme Court determined that pretrial orders to dismiss for double jeopardy reasons were indeed immediately appealable. 431 U.S. at 659 .

2016Similarly, in West v. Commonwealth, 249 Va. 241, 242 , 455 S.E.2d 1 (1995), the Virginia Supreme Court found Abney and the collateral order exception inapplicable due to long-standing case-law holding that “criminal appeals to [the Supreme Court] lie only to final judgments.” Courts in Alabama, Minnesota, New Jersey, and California have examined their state appellate statutes and arrived at similar conclusions.

2016Similarly, in West v. Commonwealth, 249 Va. 241, 242 , 455 S.E.2d 1 (1995), the Virginia Supreme Court found Abney and the collateral order exception inapplicable due to long-standing case-law holding that “criminal appeals to [the Supreme Court] lie only to final judgments.” Courts in Alabama, Minnesota, New Jersey, and California have examined their state appellate statutes and arrived at similar conclusions.

2018The Supreme Court has interpreted the collateral order doctrine with " 'the utmost strictness in criminal cases,' " and has narrowly limited its application. *985 Midland Asphalt Corp. v. United States , 489 U.S. 794 , 799, 109 S.Ct. 1494 , 103 L.Ed.2d 879 (1989).

2018The Supreme Court has interpreted the collateral order doctrine with " 'the utmost strictness in criminal cases,' " and has narrowly limited its application. *985 Midland Asphalt Corp. v. United States , 489 U.S. 794 , 799, 109 S.Ct. 1494 , 103 L.Ed.2d 879 (1989).

2018But Skahan was disapproved on other grounds by Reed v. Hess , 239 Kan. 46 , 54, 716 P.2d 555 (1986), and was then abrogated by Flores Rentals v. Flores , 283 Kan. 476 , 490, 153 P.3d 523 (2007).

2018But Skahan was disapproved on other grounds by Reed v. Hess , 239 Kan. 46 , 54, 716 P.2d 555 (1986), and was then abrogated by Flores Rentals v. Flores , 283 Kan. 476 , 490, 153 P.3d 523 (2007).

2018We based that ruling on: "[T]he absence of any express statutory authority for an interlocutory appeal by a criminal defendant, the general rule that there is no judgment in a criminal case until conviction and sentencing, [and] the related assumption in several cases that a criminal defendant has no right to an interlocutory appeal, and the United States Supreme Court's holding in Flanagan that a trial court's disqualification of defense counsel in a criminal case does not qualify as an immediately appealable order under the collateral order doctrine." 25 Kan.

2018App. 2d at 483 , 967 P.2d 335 .

2010Recently, in Mohawk Industries, Inc., 558 U.S. at 103 , the United States Supreme Court considered whether the collateral order doctrine applied to an appeal from discoveiy orders that were arguably adverse to the attorney-client privilege and held such orders do not qualify for immediate appeal under the collateral order doctrine.

2010In concluding that sufficiently effective review of adverse attorney-client privilege rulings can be had without resort to the collateral order doctrine, the Court reiterated that the class of collaterally appealable orders must remain “ ‘narrow and selective in its membership.’ [Citation omitted.]” Mohawk, 558 U.S. at 113 .

2010App. 138, 160 , 917 A.2d 1200 (2007) (the idea that an issue is not effectively reviewable after termination of trial, as element for immediate appeal of interlocutory order under common-law collateral order doctrine, because it involves a “right” to avoid the trial itself, should be limited to double jeopardy claims and very few other extraordinary situations; otherwise, there would be a proliferation of appeals under the collateral order doctrine).

2007Regarding the third prong of the collateral order doctrine, the Court concluded: “[T]he propriety of the trial court’s disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal.” 472 U.S. at 438 .

2007However, the Richardson-Merrell Court did not decide whether prejudice would be required or what test would be applied if prejudice must be shown because it focused more on the fact that the second prong of the collateral order test was not satisfied: “Even apart from Flanagan's analysis, we would conclude that orders disqualifying counsel in civil cases are not ‘completely separate from the merits of the action/ [Citation omitted.]” 472 U.S. at 439 .

1986Meche v. Dan-Tex International, Inc., 681 F.2d 264 (5th Cir. 1982); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir. 1981); Eastern Maico Distributors, Inc. v. Maico-Fabrzeugfabrik, 658 F.2d 944 (3d Cir. 1981); Johnny Pflocks v. Firestone Tire & Rubber Co., 634 F.3d 1215 (9th Cir. 1980); Evanson v. Union Oil Co. of California, 619 F.2d 72 (Em.

1986Meche v. Dan-Tex International, Inc., 681 F.2d 264 (5th Cir. 1982); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir. 1981); Eastern Maico Distributors, Inc. v. Maico-Fabrzeugfabrik, 658 F.2d 944 (3d Cir. 1981); Johnny Pflocks v. Firestone Tire & Rubber Co., 634 F.3d 1215 (9th Cir. 1980); Evanson v. Union Oil Co. of California, 619 F.2d 72 (Em.

1986Meche v. Dan-Tex International, Inc., 681 F.2d 264 (5th Cir. 1982); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir. 1981); Eastern Maico Distributors, Inc. v. Maico-Fabrzeugfabrik, 658 F.2d 944 (3d Cir. 1981); Johnny Pflocks v. Firestone Tire & Rubber Co., 634 F.3d 1215 (9th Cir. 1980); Evanson v. Union Oil Co. of California, 619 F.2d 72 (Em.

1986Meche v. Dan-Tex International, Inc., 681 F.2d 264 (5th Cir. 1982); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir. 1981); Eastern Maico Distributors, Inc. v. Maico-Fabrzeugfabrik, 658 F.2d 944 (3d Cir. 1981); Johnny Pflocks v. Firestone Tire & Rubber Co., 634 F.3d 1215 (9th Cir. 1980); Evanson v. Union Oil Co. of California, 619 F.2d 72 (Em.

1982In Nunn v. Morrison, 227 Kan. 730 , Syl. ¶ 1, 608 P.2d 1359 (1980), it was stated: “Mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal.” In addition, our court has consistently held: “ ‘[M]andamus cannot be used to control discretion, correct errors, or revise judicial action.

1982In Nunn v. Morrison, 227 Kan. 730 , Syl. ¶ 1, 608 P.2d 1359 (1980), it was stated: “Mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal.” In addition, our court has consistently held: “ ‘[M]andamus cannot be used to control discretion, correct errors, or revise judicial action.