Appeal No. 121,503: State of Kansas v. Michael Glen Mulleneaux II

Appeal No. 121,503 archived oral argument

Police discovered a pipe with suspected drug residue during a search incident to arrest Mulleneaux. After the Geary County District Court suppressed evidence confirming the presence of drug residue, the State moved to dismiss the case without prejudice. The district court denied the State's motion and dismissed the case with prejudice. The Supreme Court concluded the district court erred by dismissing the case with prejudice but that any error was harmless because the State conceded it lacked evidence necessary to prove the case to the jury without the suppressed evidence. The Supreme Court affirmed the district court's dismissal in a unanimous decision written by Chief Justice Marla Luckert.

Appeal No. 122,582: Delaware Township and High Prairie Township v. City of Lansing, Kansas, and Leavenworth County Board of Commissioners

Appeal No. 122,582 archived oral argument

The Supreme Court reversed the Leavenworth County District Court and held that the City of Lansing's notice of termination of the interlocal agreement was effective. Justice Stegall, writing for a unanimous Supreme Court, held that K.S.A. 19-3601 et seq. (the Fire Protection Act) and K.S.A. 12-2901 et seq. (the Interlocal Cooperation Act) should be interpreted in pari materia and that termination of the interlocal agreement by its own terms did not end the existence of the fire district. The Court also held that the legal continuation of the fire district absent an interlocal agreement did not create a public policy concern.

Case No. 124,868: In the Matter of Bradley A. Pistotnik

Case No. 124,868 archived oral argument

In an original proceeding in attorney discipline, the Supreme Court suspended Pistotnik of Wichita, Kansas, from the practice of law for one year for violations of the Kansas Rules of Professional Conduct related to conduct resulting in his conviction for three federal class A misdemeanor violations of 18 U.S.C. § 3, accessory after the fact in relation to 18 U.S.C. § 875(d). The Court also ordered that Pistotnik undergo a reinstatement hearing before any petition for reinstatement will be considered.

Appeal No. 121,053: State of Kansas v. Joseph Miguel Valdez

Appeal No. 121,053 archived oral argument

The Supreme Court affirmed Valdez's Saline County District Court convictions for possession of methamphetamine with intent to distribute and two counts of drug paraphernalia possession. The Court reversed Valdez's conviction for unlawful possession of a firearm within 10 years of a prior felony. The drugs, paraphernalia, and firearm were discovered after Valdez was shot inside his Salina home.

In an opinion written by Justice Dan Biles, the Court held that the jury instructions at Valdez's trial incorrectly informed the jury it could conclude he intended to distribute the drugs based on the amount possessed because that instruction conflicted with state law requiring the jury to presume intent based on the amount. However, the conviction was affirmed because the error did not influence the jury's verdict. Justice Caleb Stegall wrote a concurring opinion, arguing Valdez failed to show the instruction was incorrect.

The Court unanimously reversed the firearm conviction for lack of sufficient evidence. Valdez stipulated a prior conviction at trial, but the stipulation was not detailed enough for the jury to determine the prior conviction barred Valdez from possessing a firearm at the time of his arrest.

Appeal No. 122,162: In the Matter of the Equalizations Appeals of Wal-Mart Stores, Inc; Wal-Mart Real Estate Business Trust; Sam’s Real Estate Business Trust; and TMM Roeland Park Center, L.L.C., for the year 2016 in Johnson County; and Wal-Mart Real Estate Business Trust and Sam’s Real Estate Business Trust for the year 2017 in Johnson County

Appeal No. 122,162 archived oral argument

The Supreme Court reversed a Board of Tax Appeals order determining the fair market values of 11 Johnson County Walmart and Sam's Club stores for property tax purposes for the 2016 and 2017 tax years. The Board of Tax Appeals imposed values significantly lower than the Johnson County appraisals.

At the Board of Tax Appeals hearing, the County presented expert testimony from appraisers who relied on data from build-to-suit leases to estimate the properties' fair market rental values. Build-to-suit leases are arrangements in which a developer builds a store to the retailer's unique specifications, then leases the completed store to the retailer. The County's appraisers testified that their use of data from these leases was consistent with generally accepted appraisal practices.

The Board of Tax Appeals disregarded this evidence, relying on a 2012 Kansas Court of Appeals decision, In re Prieb Properties, LLC. That case held that "rental rates contained in or reflected by commercial build-to-suit leases are not reflective of market conditions and may not be utilized for purposes of the income approach or the sales comparison approach []es to value for ad valorem tax purposes in Kansas without a disentanglement by adjustments . . ." Among the reasons for its decision, the Prieb court asserted that "such a lease is essentially a financing agreement between a lessor and lessee, and the rental rates therein are based in large part upon the revenue needed to amortize the investment required for the required construction—plus a measure of profit—over the lease term or extensions thereof."

In a unanimous opinion written by Justice Dan Biles, the Court overruled the Prieb decision and remanded the case to the Board of Tax Appeals to fully consider the County's evidence in determining the properties' values. The Court acknowledged the "unique appraisal problems" presented by big-box retail properties, but said, "Prieb represents a judicial attempt to address these concerns by simply announcing a rule of law." And that rule of law "invade[d] BOTA's longstanding province as the fact-finder in the statutory process of appraising real property at its fair market value."

Appeal No. 124,156: City of Olathe v. City of Spring Hill and James Hendershot

Appeal No. 124,156 archived oral argument

In 2006, the cities of Spring Hill and Olathe signed a written agreement to restrict their future growth by establishing boundaries for annexing land adjacent to the two cities. The agreement had no time limitations and was to remain in effect unless the two cities mutually agreed to terminate it. But in the spring of 2021, Spring Hill announced its intention to break the agreement by annexing land on Olathe’s side of the agreed boundary. The purpose of the annexation was to pursue a commercial site development. Olathe took Spring Hill and its City Administrator to court to get a restraining order and injunctions to prevent the annexation. The district court ruled against Olathe but stayed its order while the case was being appealed to the Court of Appeals. The Supreme Court assumed jurisdiction over the case at Olathe’s request.

Writing for a unanimous Supreme Court, Justice Eric Rosen affirmed the Johnson County District Court. The Court relied on the longstanding rule that elected governing bodies may not compel future elected officials to follow general policy decisions. It would undermine democratic principles if a city council could take away from future voters the power to elect city councils that could pursue their own policies. The Court concluded that the 2006 agreement cannot be enforced against the 2021 Spring Hill city council. The Court upheld the district court decision and lifted the stay on the district court’s order.

Appeal No. 125,092: Faith Rivera et al., Tom Alonzo et al., and Susan Frick et al., v. Scott Schwab, Kansas Secretary of State, in His Official Capacity, and Michael Abbott, Wyandotte County Election Commissioner, in His Official Capacity, and Jamie Shew, Douglas County Clerk, in His Official Capacity.

Appeal No. 125,092 archived oral argument

Reversing the district court’s ruling that Substitute for Senate Bill 355 (Ad Astra 2) was unconstitutional under the Kansas Constitution. Justice Stegall, writing for a majority of the Kansas Supreme Court, held that partisan gerrymandering claims were nonjusticiable under section 2 of the Kansas Constitution. The court also held that Ad Astra 2 was not a product of racial gerrymandering, because the Plaintiffs did not establish that race was the predominant factor used by the Legislature in redistricting decisions. Lastly, the court held that the Plaintiffs did not establish a claim of constitutional vote dilution because they failed to present evidence that the minority group is sufficiently large and geographically compact to constitute a majority in a single member district.

Justice Biles, joined by Justice Rosen and Justice Standridge, concurred in part, and dissented in part. These three justices would have affirmed the district court and concluded Ad Astra 2 violates the Kansas Constitution, though providing a different rationale than the district court. Justice Rosen wrote separately to explain why the equal protection guarantees in section 2 of the Kansas Bill of Rights provide broader protections than those in the Fourteenth Amendment to the United States Constitution.

Documents filed in this case are at www.kscourts.org/125092/Congressional-districts.

Original Action No. 125,083: In the Matter of the Petition of Derek Schmidt, Attorney General to Determine the Validity of Substitute for Senate Bill 563, holding the Legislature’s reapportionment of state senatorial and representative districts to be valid.

No. 125,083 archived oral argument

Article 10, section 1 of the Kansas Constitution requires the Kansas Supreme Court to review state reapportionment legislation for compliance with state and federal law. Justice Stegall, writing for the unanimous court, found that the Legislature followed the correct procedure laid out by the Kansas Constitution in enacting the maps. It also concluded that the maps were substantively valid because they did not contain any constitutional errors and they complied with the requirements of the federal Voting Rights Act.

Documents filed in this case are at www.kscourts.org/125083/Reapportionment.

Appeal No. 121,411: State of Kansas v. Darnell Lee Huey

Appeal No. 121,411 archived oral argument

In a decision written by Chief Justice Marla Luckert, a majority of the Supreme Court affirmed Huey’s conviction for failing to register in Shawnee County as required under the Kansas Offender Registration Act. Huey was required to register as a violent offender due to his use of a firearm during a robbery. He argued there was not sufficient evidence to support his conviction because the State only presented evidence that he lived in Shawnee County two months before the date he was required to register but did not present any evidence of where he lived at the time he was required to register. The Supreme Court held that it was a reasonable inference that the defendant lived in Shawnee County at the time he was required to register, and the jury could have found beyond a reasonable doubt all elements of the offense of failing to register as required by the Kansas Offender Registration Act. The dissenting justice would have reversed the conviction because they did not believe that the evidence supported a reasonable inference that the defendant was still living in that same residence two months later.

Appeal No. 122,897: State of Kansas v. Melvin Lavon Shields

Appeal No. 122,897 archived oral argument

In a direct appeal from Wyandotte County District Court, the Supreme Court affirmed Shields’ convictions for two counts of first-degree premeditated murder. In an opinion written by Justice K.J. Wall, the Court agreed with Shields that the district court should have provided a cautionary instruction to the jury on the reliability of eyewitness testimony. But the Court held that reversal was unwarranted because other procedural safeguards mitigated the error and Shields had not shown that the jury would have reached a different verdict if given the instruction. A majority of the Court rejected the other errors that Shields had alleged. In a concurring opinion, Justice Eric Rosen indicated that he agreed with the outcome of the case but would have concluded that the prosecutor erred during closing arguments.

Case No. 124,812: In the Matter of Gary W. Long

Case No. 124,812 archived oral argument

In an attorney disciplinary proceeding, the Supreme Court indefinitely suspended Long’s law license for violations arising from the representation of two clients in criminal matters as well as a case involving a property title, and mishandling of client funds. The Court found the attorney’s conduct violated Kansas Rules of Professional Conduct and Kansas Supreme Court Rules regarding diligence, communication, safekeeping property, cooperation, and professional misconduct. The attorney had previously been subject to disciplinary sanctions in 1992, 1994, and 1998, and had been disbarred in 1998, but later successfully sought reinstatement of his law license. In part because of this previous conduct, the Court imposed a greater sanction than requested by the Disciplinary Administrator and ordered indefinite suspension of the attorney’s law license. A minority of the Court would have imposed a longer period of definite suspension.

Case No. 124,869: In the Matter of Bruce W. Beye

Case No. 124,869 archived oral argument

In an original proceeding in attorney discipline, the Supreme Court publicly censured Beye for violations of Kansas Rules of Professional Conduct 1.3 (2022 Kan. S. Ct. R. 331) (diligence), 1.4 (2022 Kan. S. Ct. R. 332) (communication), and 1.5(a) and (b) (2022 Kan. S. Ct. R. 372) (safekeeping property).

Appeal No. 122,163: State of Kansas v. Jeff Hillard

Appeal No. 122,163 archived oral argument

The Supreme Court affirmed Hillard’s Sedgwick County District Court convictions for first-degree murder, aggravated kidnapping, aggravated battery, and rape, but reversed his conviction for conspiracy to distribute a controlled substance.

Hillard’s charges stem from the 2016 kidnapping, torture, and murder of Scottie Goodpaster Jr., and the kidnapping and rape of Goodpaster’s girlfriend. On appeal, Hillard argued that the district court erred by declining to suppress evidence obtained from his cell phone and his home surveillance system, by admitting transcripts of audio recordings taken from his cell phone, as well as an enhanced version of one of those recordings, and by incorrectly instructing the jury on the elements of his charged offenses and the proper venue for his trial. Hillard also argued there was insufficient evidence to support any of his convictions.

In a unanimous decision written by Justice K.J. Wall, the Court held there was insufficient evidence to support Hillard’s conviction for conspiracy to distribute a controlled substance. The Court reversed that conviction and vacated the accompanying sentence. The Court rejected Hillard’s other claims of error and affirmed his remaining convictions and sentence for first-degree murder, aggravated kidnapping, aggravated battery, and rape.

Appeal No. 123,613: State of Kansas v. Brian Bailey

Summary calendar; no oral argument

In a unanimous decision written by Chief Justice Marla Luckert, the Supreme Court held that a defendant could not seek to compel post conviction DNA testing of evidence because he had already litigated the issue in two previous appeals. Under a Kansas statute that allows defendants to have post conviction DNA testing of evidence under certain circumstances, Bailey sought testing of evidence related to his 1988 Wyandotte County District Court conviction for aggravated criminal sodomy. This was the third time Bailey had sought DNA testing of the evidence. In two prior appeals, Bailey had been denied relief, in part, because the evidence is no longer in the State’s possession. The Supreme Court held that Bailey could not relitigate this issue based on preclusionary doctrines that prohibit parties from endlessly relitigating matters that have been subject to a final ruling by previous courts.

Appeal No. 124,134: State of Kansas v. Harvey L. Ross Jr.

Summary calendar; no oral argument

On direct appeal, the Supreme Court affirmed the Sedgwick County District Court’s denial of Ross’ post conviction request to reverse his conviction based on allegations that the trial court did not have subject matter jurisdiction over his criminal proceedings. In a unanimous opinion written by Justice Melissa Standridge, the Court held that K.S.A. 22-3201 is not a procedural vehicle to bring a cause of action and that defective complaint claims are not properly raised in a motion to correct an illegal sentence under K.S.A. 22-3504. The Supreme Court affirmed the district court because Ross failed to identify a timely, unexhausted, and proper procedural vehicle for presenting his challenge.

Appeal No. 121,866: State of Kansas v. Luqman Yusef Keys

Appeal No. 121,866 archived oral argument

The Supreme Court affirmed Keys’ convictions and sentences for felony murder and aggravated robbery. In an opinion written by Justice Melissa Standridge, the Court held that: (1) a grand jury’s issuance of a second superseding indictment after mistrial is not the functional equivalent of State sought amendment of an indictment; (2) Keys’ selective prosecution claim was unsupported by the record; (3) the State made sufficient efforts to establish a witness’s unavailability; (4) no self-defense justification exists for the crimes of distributing a controlled substance or aggravated robbery; and (5) no error existed, so cumulative error was inapplicable. Justice Evelyn Wilson did not participate.

Appeal No. 123,856: State of Kansas v. Shelbert Smith

Appeal No. 123,856 archived oral argument

The Supreme Court dismissed Smith’s second overall attempt to directly appeal the sentences he received in connection with a murder he committed in 1993. Smith’s previous attempt to appeal his sentences, which brought him before the Supreme Court three times, centered on a claim under the third exception to the general rule requiring timely appeals. That exception is set forth in State v. Ortiz¸ 230 Kan. 733, 640 P.2d 1255 (1982). In the previous appeal, the Supreme Court ultimately concluded that Smith could not appeal out of time under the third Ortiz exception. The Court also declined to address two newly raised alternative arguments concerning the timeliness of Smith’s appeal. With no intervening events at the Sedgwick County District Court, Smith again appealed in an attempt to raise these two claims. This time, the Court concluded that Smith could not raise these new claims. The Court held that Smith had previously abandoned one claim early in his litigation of the first appeal and could not resurrect it in a second appeal. The Court also held that Smith’s second claim was precluded in this second appeal under the law-of-the-case doctrine. The Court thus dismissed Smith’s second appeal for lack of appellate jurisdiction.

Appeal No. 123,959: State of Kansas v. Michael Davidson

Summary calendar; no oral argument

Davidson, serving a life sentence for first-degree murder, moved for a new trial based on newly discovered evidence more than 20 years after his conviction became final. The Johnson County District Court summarily dismissed Davidson’s motion because a motion for new trial filed under K.S.A. 22-3501 must be filed within two years of final judgment. The Court affirmed in a unanimous decision written by Chief Justice Marla Luckert.

Appeal No. 124,028: State of Kansas v. Martin Vasquez

Summary calendar; no oral argument

In a unanimous decision written by Chief Justice Marla Luckert, the Supreme Court held that a defendant’s claims of insufficiency of evidence, procedural violations, and false arrest do not fall within the narrow definition of an illegal sentence as is required by the statute that allows a court to correct an illegal sentence. Vasquez filed motions to correct illegal sentences for his multiple life sentences for three convictions of first-degree murder and other crimes, but K.S.A. 22-3504 only allows a sentence to be corrected if it was imposed by a court without jurisdiction, and does not conform to statutory provisions, or is ambiguous regarding the time and manner it is to be served. Because Vasquez’s claims of error did not fall within those parameters, the Court affirmed the Edwards County District Court’s denial of Vasquez’s motions.

Case No. 123,280: In the Matter of Donna L. Huffman

Case No. 123,280 archived oral argument

The Supreme Court suspended Huffman from the practice of law for two years, with the possibility of probation after 90 days. The Kansas Board for Discipline of Attorneys found Huffman committed multiple violations of Kansas Rules of Professional Conduct while representing clients in a mortgage dispute.

Appeal No. 120,726: State of Kansas v. Keeshaun W. Milo

Appeal No. 120,726 archived oral argument

The Supreme Court affirmed Milo’s convictions for felony murder, holding that a self-defense instruction may only be given in felony murder cases to the extent it may negate an element of the underlying inherently dangerous felony. Because no legal self-defense justification exists for the sale of marijuana, Milo was not entitled to a self-defense instruction.

The Court also found no error concerning Milo’s remaining arguments. The Court concluded that the Sedgwick County District Court did not err in refusing to give an added requested jury instruction since the instruction was legally inappropriate; the district court did not wrongly deny Milo’s acquittal motion because the State had presented sufficient evidence that Milo attempted to distribute marijuana; and finally, since the Court found no trial errors, Milo’s argument that cumulative error deprived him of a fair trial also failed.

Appeal No. 120,935: Rita J.Bicknell v. Kansas Dept. of Revenue

Appeal No. 120,935 archived oral argument

The Supreme Court reversed the Court of Appeals and affirmed the Crawford County District Court judgment finding Bicknell was a nonresident in 2005 and 2006 for Kansas state income tax purposes. The appeal arose from the Kansas Department of Revenue’s determination that Bicknell should have filed his 2005 and 2006 state income taxes as a Kansas resident. After a new trial, the district court found Bicknell was a Florida resident in those years and he properly filed his state income taxes as a nonresident. The Court of Appeals reversed and remanded for a new trial, holding that the district court had improperly shifted the burden to prove residency from Bicknell to the Department of Revenue and that Crawford County was not a proper venue.

In a unanimous opinion written by Justice K.J. Wall, the Supreme Court determined that the district court properly held Bicknell to his burden to prove he had changed his residency from Kansas to Florida. The Court also rejected the Department of Revenue’s argument that taxpayers can only overcome the regulatory presumption that they share a domicile with their spouse by presenting evidence they live apart from their spouse. Instead, the Court held the regulation’s plain language enables taxpayers to overcome the presumption by presenting any “affirmative evidence to the contrary,” and affirmed the district court’s finding that Bicknell overcame the presumption he shared his spouse’s Kansas domicile. The Court also held substantial competent evidence supported the district court’s finding that Bicknell was a Florida resident in 2005 and 2006, and the district court properly applied Kansas law in reaching its judgment.

The Court held Crawford County was a proper venue under the Kansas Judicial Review Act’s venue statute, which provides the venue for judicial review of an agency order is proper in any county in which the order is entered or is effective. The Court held that when an agency order determines that an individual is a Kansas resident for tax purposes based on the individual’s contacts with a particular county, the order is effective within that county. The Court found Crawford County was a proper venue because the agency order determined Bicknell was a Kansas resident based on his contacts with Crawford County.

Appeal No. 121,181: State of Kansas v. Mark Holley III

Appeal No. 121,181 archived oral argument

The Supreme Court affirmed Holley’s convictions for felony murder and child endangerment. In 2021, the Supreme Court reversed Holley’s felony murder conviction because it concluded the jury should have been instructed on self-defense. Upon a motion for rehearing by the State, the Court now holds that a self-defense instruction is only available in felony murder cases to the extent it may negate an element of the underlying inherently dangerous felony. Because Holley’s alleged self-defense could not legally justify any of the elements of the underlying inherently dangerous felony of aggravated robbery, Holley was not entitled to a self-defense instruction.

Additionally, the Court found the evidence sufficient to support Holley’s convictions for child endangerment. The Court also vacated Holley’s lifetime postrelease supervision sentence, concluding that a sentencing court lacks authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence. Lastly, the Court declined to vacate the district court’s restitution order, as Holley did not preserve that argument for appeal.

Appeal No. 121,862: State of Kansas v. Orville William Sieg

Appeal No. 121,862 archived oral argument

The Supreme Court affirmed Sieg’s convictions for possessing methamphetamine and drug paraphernalia. In a unanimous decision written by Justice Dan Biles, the Court held the trial evidence was ample to support his drug paraphernalia conviction; that limiting jury instructions was not applicable, and therefore the Leavenworth District County Court did not err in omitting them; and that the challenged prosecutorial comment was not improper.

Appeal No. 123,410: State of Kansas v. Tanner Scott Mora

Appeal No. 123,410 archived oral argument

The Supreme Court reversed Mora’s convictions for felony murder stemming from his presence at a drug deal turned robbery gone wrong. Justice Caleb Stegall, writing for the Court, held that neither of the alternative counts of felony murder were supported by sufficient evidence.

The first conviction was based on the underlying felony of attempted aggravated robbery under an aiding and abetting theory of liability. Mora argued, and the Court agreed, that a clearly erroneous instructional error, coupled with insufficient evidence of a specific intent to aid and abet the principal in committing the attempted robbery, required reversal of this conviction.

Mora’s second felony murder conviction, charged in the alternative, was premised on the attempted underlying felony of distribution of marijuana. The Court also reversed this conviction, holding that a person who purchases or obtains a controlled substance for personal use cannot be convicted of distribution (or attempted distribution) of a controlled substance if there is no evidence that the person attempted or intended to later distribute that substance.

Case No. 124,083: In the Matter of Jacqueline J. Spradling

Case No. 124,083 archived oral argument

The Supreme Court disbarred Spradling from the practice of law. The court found the evidence presented at the disciplinary hearing demonstrated the respondent violated several rules of professional conduct by engaging in a serious pattern of grossly unethical misconduct, including ignoring the order of a district court, repeatedly making arguments that lacked evidentiary support, intentionally lying to the Supreme Court in her briefs and in oral arguments, and making false statements during the disciplinary investigation.

Case No. 124,587: In the Matter of Michael P. Jahn

Case No. 124,587 archived oral argument

Jahn was suspended from the practice of law in Kansas for a period of six months for violations of the Kansas Rules of Professional Conduct regarding scope of representation, conflict of interest, truthfulness, communication with person represented by counsel, misconduct, and jurisdiction. Jahn’s suspension will be stayed after the first three months, provided he enters a probation plan approved by the Disciplinary Administrator’s office.

Case No. 125,083: Petition of Derek Schmidt, Attorney General, to Determine Validity of Substitute for Senate Bill 563 Provisions Reapportioning State Legislative Districts

125,083 Supreme Court opinion 

125,083 oral argument video

Documents filed in this case are at www.kscourts.org/125083/Reapportionment

Case No. 125,092: Faith Rivera, et al, Tom Alonzo, et al, and Susan Frick, et al, v. Scott Schwab, Kansas Secretary of State; Michael Abbott, Wyandotte County Election Commissioner; and Jamie Shew, Douglas County Clerk 

125,092 Supreme Court opinion

125,092 oral argument video
Documents filed in this case are online at www.kscourts.org/125092/Congressional-districts.

Appeal No. 117,903: EagleMed, LLC v. Travelers Insurance

Appeal No 117,903 oral argument

The Supreme Court reversed a Kansas Workers Compensation Appeals Board order requiring Travelers Insurance to pay in full for billings by air ambulance carrier EagleMed, LLC. EagleMed provided air ambulance services to injured workers whose employers carried workers compensation insurance through Travelers. The billing dispute revolves around a medical fee schedule enforced by the Kansas Division of Workers Compensation, which permits an air ambulance carrier to be reimbursed for its “usual and customary charges” according to the federal Airline Deregulation Act. That Act prevents states from enforcing laws relating to air carrier pricing. The Appeals Board determined the prohibition required it to order EagleMed’s bills paid in full without examining the billings.

In an opinion written by Justice Dan Biles, the Court held the Appeals Board should have determined whether the charges were “usual and customary” before ordering payment. Justice Caleb Stegall dissented, joined by Senior Judge Patrick McAnany. Justice Stegall argued the “usual and customary” requirement could only be construed to conflict with the federal Act, and therefore could not be enforced.