                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 116,810

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          AMBER E. BURDEN,
                                             Appellant.


                                   SYLLABUS BY THE COURT


1.
        An appellate court exercises de novo review over the legal question of whether a
judge may refuse to allow a criminal defendant to exercise his or her constitutional right
of self-representation because of mental incompetence. But an appellate court will review
a district court's factual findings about mental competency for an abuse of discretion.


2.
        Under Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345
(2008), the United States Constitution does not prohibit states from insisting on
representation for defendants who are competent to stand trial but due to severe mental
illness are not competent to represent themselves. But there is no error when a court does
not appoint counsel for a defendant who wishes to exercise the right of self-
representation if there is no evidence of the defendant's severe mental illness.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 17,
2017. Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed July 17, 2020.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.



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        Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.


        Kerwin L. Spencer, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, C.J.: Amber Burden contends the district court judge erred by allowing
her to represent herself because mental illness prevented her from meeting the mental
competency standard of Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed.
2d 345 (2008). We hold the district court did not err in allowing Burden to exercise her
constitutional right of self-representation when the record does not establish that Burden
suffers from a severe mental illness. We thus affirm her convictions.


                            FACTUAL AND PROCEDURAL BACKGROUND

        This case arises from Burden's arrest for possession of marijuana, cocaine, and
drug paraphernalia. The charges arose after Burden's ex-husband visited their daughter at
school and the daughter showed him a glass marijuana pipe that she found in Burden's
bedroom. The ex-husband told the school principal, who called police.


        A law enforcement officer investigating the principal's report went to Burden's
home and knocked on her door. She answered, and the officer entered and searched
without a warrant or clearly granted consent. The first officer and others who responded
found drug paraphernalia and small amounts of marijuana and cocaine. The officers
arrested Burden, and the State later charged her with possession of marijuana, cocaine,
and drug paraphernalia.




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       At Burden's first appearance in court, she was disruptive. She interrupted the
district court judge, was nonresponsive to questions, and declared she would not
recognize the court's authority or jurisdiction. Burden asked to see the judge's oath of
office and questioned if he was a member of the bar. Burden also expressed her intent to
represent herself. After she refused to leave the courtroom, the judge found her in
contempt of court and ordered a mental competency evaluation.


       Burden underwent the evaluation at the Sumner Mental Health Center. Burden
self-reported an anxiety disorder and expressed her opinion that she had posttraumatic
stress disorder related to a history of trauma, although there was no other evidence
presented of any such diagnosis. The evaluator conducted a standardized competency test
and found that Burden had the ability to consult with counsel and possessed a factual and
rational understanding of courtroom proceedings. The evaluator also found that Burden
had the ability to assist counsel in her defense but noted that Burden reported she wanted
to represent herself. The competency evaluation concluded that Burden was competent to
stand trial and, as particularly relevant to the issue in this appeal, had "no significant
impairment that is psychiatric in nature."


       At a later hearing, the judge considered Burden's mental competency to stand trial
and her waiver of appointed counsel. The judge found, based on the competency
evaluation, that Burden was competent to stand trial.


       The judge then addressed Burden's request to waive her right to an attorney. The
judge conducted a long colloquy with Burden about her constitutional right to an
attorney, her right to have an attorney appointed, and the significant risks she took if she
represented herself. He asked her several questions about trial procedures, her
understanding of the charges against her, the State's burden of proof, and the potential
penalties. The judge encouraged Burden to get an attorney. He also asked questions about



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the voluntariness of her waiver of counsel and ultimately determined her waiver was
"expressed, explicit[], voluntary, willing, knowing, and intelligent." Burden also executed
a written waiver of her right to an attorney. The judge allowed her to represent herself,
although he appointed standby counsel.


       Burden never moved to suppress the drugs and paraphernalia found in her home
even though the judge granted three continuances to give her time to file a motion and
repeatedly urged her to do so. Burden did file two motions challenging the court's
jurisdiction and asking the judge to dismiss the case. The judge rejected these motions.


       At trial, Burden's cross-examination of witnesses often strayed from the evidence
and scope of direct examination. At one point she tried to play a video of a speech by
President Barack Obama and, when not allowed to do so, began to read it. She belatedly
tried to challenge the search of her home, and she repeatedly made statements about her
belief in the medical benefits of marijuana and cocaine. The judge frequently cautioned
her to not make speeches when asking questions. While cross-examining her ex-husband,
Burden went into irrelevant details of their 17-year relationship and subsequent divorce
and custody arrangements. And she asked both him and her daughter several questions
apparently aimed at revealing her views about the medical use of marijuana. She admitted
to possession of cocaine and marijuana but built a defense based on her belief both
substances were natural products that should be legal.


       The jury returned a guilty verdict of possession of marijuana and cocaine but not
guilty for possession of paraphernalia.


       On appeal to the Court of Appeals, Burden argued the district court judge used the
incorrect standard to determine whether she was competent to represent herself. The




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Court of Appeals affirmed. State v. Burden, No. 116,810, 2017 WL 5507728 (Kan. App.
2017) (unpublished opinion).


       Burden timely petitioned for review. We granted review and have jurisdiction
under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).


                                         ANALYSIS

       Burden's argument rests on the premise that the judge had to apply a higher
standard to determine she was mentally competent to represent herself than the standard
for evaluating competency to stand trial. Because the district court judge did not
explicitly apply any standard other than the one for determining competence to stand trial
and the Court of Appeals did not require a more exacting standard, Burden argues both
courts erred.


       To explain her argument, we examine three distinct but related concepts—mental
competency to stand trial, the capacity to waive the right to counsel, and mental
competency to self-represent.


       1. Mental Competency to Stand Trial

       Either a defendant, the State, or a judge can raise the question of whether a
defendant lacks competency to stand trial. Once mental competency is at issue, courts
apply the standard set out by the United States Supreme Court's decision in Dusky v.
United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Under the Dusky
standard, a defendant's competence to stand trial is determined by "'whether he has
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual understanding of the
proceedings against him.'" 362 U.S. at 402.


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         K.S.A. 22-3301 also defines the phrase "incompetent to stand trial." Under it, a
defendant charged with a crime is incompetent to stand trial if he or she "because of
mental illness or defect is unable: (a) To understand the nature and purpose of the
proceedings against him [or her]; or (b) to make or assist in making his [or her] defense."
K.S.A. 22-3301(1). This statutory definition "is in accord" with the Dusky standard. State
v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015); see State v. Woods, 301 Kan. 852,
857-58, 348 P.3d 583 (2015).


         The evaluator specifically noted she used the Dusky standard in evaluating
Burden, and the district court judge relied on that evaluation in finding Burden competent
to stand trial.


         Burden does not take issue on appeal with that determination. Instead, she argues
the district court judge erred by not making a separate determination that Burden was
competent to represent herself. That argument rests on Burden's right to waive counsel,
which we explain before discussing how mental competency impacts the exercise of that
right.


         2. Waiver of the Right to Counsel


         Neither the United States nor Kansas Constitutions explicitly provide for a right of
self-representation. Instead, the United States Supreme Court implied the right to waive
counsel and act as one's own attorney from the right to counsel granted in the Sixth
Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 821,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see State v. Bunyard, 307 Kan. 463, 470, 410
P.3d 902 (2018).




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       Because the right to represent oneself is "at odds with the right to be represented
by counsel, the courts must indulge every reasonable presumption against waiver of the
right to counsel[] and will not presume acquiescence in the loss of fundamental rights,
i.e., the right to counsel." State v. Vann, 280 Kan. 782, 782, Syl. ¶ 4, 127 P.3d 307
(2006). The United States Supreme Court thus requires a criminal defendant to make a
"knowing[] and intelligent[]" waiver of the right to counsel. Faretta, 422 U.S. at 835.


       This court has suggested a three-step framework for a district court judge to use in
determining if a waiver is knowing and intelligent. First, a court should advise the
defendant of the right to counsel and to appointed counsel if indigent. Second, the
defendant must possess the intelligence and capacity to appreciate the consequences of
his or her decision. And third, the defendant must comprehend the charges and
proceedings, punishments, and the facts necessary for a broad understanding of the case.
State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745 (1989).


       To assure the defendant appreciates the consequences of waiving representation by
counsel, Buckland suggests the court explain that the defendant will be held to the same
standards as an attorney; that the judge will not assist in or provide advice about
presenting a defense; and that it is advisable to have an attorney because many trial
techniques, evidence rules, and the presentation of defenses require specialized training
and knowledge. 245 Kan. at 138; see Bunyard, 307 Kan. at 475-76 (citing a seven-step
checklist found in Cateforis, Kansas Criminal Law 11-9 [5th ed. 2016]).


       This court has not required use of a checklist, however. Instead, courts weigh
whether a defendant has knowingly and intelligently waived the right to counsel by
examining the circumstances of each case. State v. Armstrong, 240 Kan. 446, 453, 731
P.2d 249 (1987).




                                              7
       Burden does not argue that the judge failed to fully advise her of her right to
counsel or of the consequences of waiving that right—the first or third steps identified in
Buckland. Indeed, the record reveals the judge took great pains to list the rights and
advantages Burden would be giving up by waiving her right to counsel. The judge
repeatedly encouraged Burden to consider accepting appointed counsel and took the
added step of having Burden review and execute a written waiver of her right to counsel.
In an abundance of caution, the judge appointed an attorney to serve as stand-by counsel,
which a court may do even over the objection of the defendant, so Burden would have
access to assistance if questions or a need for advice arose. See Vann, 280 Kan. at 793
(citing Faretta, 422 U.S. at 834 n.46).


       Nor does Burden focus on the second prong of Buckland—the capacity to waive
her constitutional right to counsel. The United States Supreme Court in Godinez v.
Moran, 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), discussed this
capacity requirement. In Godinez, the United States Supreme Court specifically rejected
"the notion that competence to plead guilty or to waive the right to counsel must be
measured by a standard that is higher than (or even different from)" the standard for
determining competence to stand trial. 509 U.S. at 398. Godinez did, however, recognize
a "'heightened' standard" in the sense it held a trial court must find both that a defendant
is competent to stand trial and that the defendant's waiver of counsel was knowing and
voluntary. But it clarified it was not imposing "a heightened standard of competence."
509 U.S. at 400-01.


       The determination of competency to waive the constitutional right to counsel (the
second Buckland prong) is closely related to the requirement that one must be mentally
competent to represent oneself. But the United States Supreme Court distinguished the
concepts in Edwards, 554 U.S. 164. Citing Edwards, Burden asserts (1) the district court
judge had to order a second evaluation to determine her mental competency to represent



                                              8
herself; (2) the standard the judge should have applied requires a more rigorous showing
than that required under the Dusky standard; and (3) she lacked the required mental
competency.


       3. Mental Competency to Self-Represent


       Before we examine the issue of whether a court must examine a defendant's
mental competency to act as his or her own attorney, we pause to draw a contrast to a
defendant's technical competency to act as his or her own attorney. The United States
Supreme Court has held that a "defendant's 'technical legal knowledge' is 'not relevant' to
the determination whether he is competent to waive his right to counsel . . . , and [it]
emphasized that although the defendant 'may conduct his own defense ultimately to his
own detriment, his choice must be honored.'" Godinez, 509 U.S. at 400; see Faretta, 422
U.S. at 836 (holding defendant's "technical legal knowledge . . . was not relevant to an
assessment of his knowing exercise of the right to defend himself"); Bunyard, 307 Kan.
at 470-71 (same); Jones, 290 Kan. at 377 (citing Godinez).


       If courts used a technical- or knowledge-based examination of a defendant's
competence to effectively handle the trial and present a defense, most self-represented
litigants would fall short. Several things Burden did or did not do (such as not moving to
suppress evidence) suggest she lacked the skill and knowledge an attorney would have
exercised. But the fact the jury found her not guilty on one count suggests she was not
totally ineffective. Either way, Burden's lack of technical skill is not our measuring stick.


       That said, the right of self-representation is not absolute. For instance, a defendant
can forfeit the right to self-representation by "deliberately engag[ing] in serious and
obstructionist misconduct." Faretta, 422 U.S. at 834 n.46. Burden suggests another
exception arises from Edwards, 554 U.S. 164, which she argues required the district court



                                              9
judge to prevent her from exercising her right of self-representation because of her
mental illness.


       Her argument presents a legal question of whether a judge may refuse to allow a
criminal defendant to exercise his or her constitutional right of self-representation
because of mental incompetence and, if so, what standard applies. Appellate courts
exercise de novo review over this legal question. See Bunyard, 307 Kan. at 470 (holding
that the extent of the right to assistance of counsel and the related right to self-
representation is a question of law subject to unlimited review).


       Yet, "the trial judge, particularly one such as the trial judge in this case, who
presided over one of [the] competency hearings and . . . trial[], will often prove best able
to make more fine-tuned mental capacity decisions, tailored to the individualized
circumstances of a particular defendant." Edwards, 554 U.S. at 177. Thus, when applying
the facts to a standard to determine mental competency to represent oneself, we review
the trial record under an abuse of discretion standard. See Marshall, 303 Kan. at 444
(same for mental competency of defendant to stand trial); State v. Cameron, 300 Kan.
384, 391, 329 P.3d 1158 (2014) (same for competence of a witness); see also In re Care
& Treatment of Cone, 309 Kan. 321, 325, 435 P.3d 45 (2019) (legal questions reviewed
de novo; conclusions drawn from the facts reviewed for an abuse of discretion).


       As Burden argues, the United States Supreme Court's decision in Edwards, 554
U.S. 164, guides our de novo review of the legal question. In Edwards, an Indiana trial
court found Ahmad Edwards mentally incompetent under the Dusky standard. After he
received seven months of treatment for schizophrenia, the court found he had regained
mental competency to stand trial. Some months later, Edwards' counsel asked for another
evaluation after Edwards became delusional. The court again committed Edwards for
treatment. Eight months of treatment followed before Edwards was found competent to



                                              10
stand trial. At that time, he asked to represent himself but then decided to proceed with
counsel. The jury found Edwards guilty on some charges but could not reach a verdict on
charges of attempted murder and battery. Before the retrial, Edwards reasserted his right
of self-representation. The trial court denied his request and, after referring to the large
record of psychiatric reports and Edwards' history of schizophrenia, found Edwards
mentally incompetent to represent himself.


       The Indiana Supreme Court reversed Edwards' conviction. Edwards v. State, 866
N.E.2d 252, 260 (Ind. 2007), vacated 554 U.S. 164 (2008). The Indiana Supreme Court
first noted that Faretta held that "'to force unwanted counsel on a defendant 'violates the
logic' of the Sixth Amendment." 866 N.E.2d at 255 (quoting Faretta, 422 U.S. at 820). It
then cited Godinez, in which the United States Supreme Court had upheld use of the
Dusky standard for determining a defendant's competence to waive the right to counsel
and to enter a guilty plea. Edwards, 866 N.E.2d at 256.


       The United States Supreme Court took a different view of the binding effect of
both Faretta and Godinez. The Court determined that, while Faretta recognized the right
to self-representation, it did not address whether mental illness would impact that right.
Edwards, 554 U.S. at 171. And the Court distinguished Godinez, even though it
acknowledged that Godinez, like Edwards, "involve[s] a mental condition that falls in a
gray area between Dusky's minimal constitutional requirement that measures a
defendant's ability to stand trial and a somewhat higher standard that measures mental
fitness for another legal purpose" such as the right to represent oneself. 554 U.S. at 173.


       In distinguishing Godinez, the Edwards Court cited several reasons. Two are
particularly relevant to our discussion. First, the Court pointed out that, "[i]n Godinez, the
higher standard sought to measure the defendant's ability to proceed on his own to enter a
guilty plea; here the higher standard seeks to measure the defendant's ability to conduct



                                              11
trial proceedings." 554 U.S. at 173. The Court recognized that "an individual may well be
able to satisfy Dusky's mental competence standard, for he will be able to work with
counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed
to present his own defense without the help of counsel." 554 U.S. at 175-76. Second,
Edwards raised the question of whether a State could deny a defendant's request to
represent oneself as compared to Godinez' holding that a State could permit a defendant
to represent himself in entering a guilty plea. 554 U.S. at 173-74.


       Thus, the Edwards Court determined, it faced the open question of whether the
United States Constitution "permits a State to limit that defendant's self-representation
right by insisting upon representation by counsel at trial—on the ground that the
defendant lacks the mental capacity to conduct his trial defense unless represented."
554 U.S. at 174. In answering this question, the United States Supreme Court reversed
the Indiana Supreme Court. The Court held that "the Constitution permits States to insist
upon representation by counsel for those competent enough to stand trial under Dusky but
who still suffer from severe mental illness to the point where they are not competent to
conduct trial proceedings by themselves." (Emphasis added.) 554 U.S. at 178.


       Burden first argues that Edwards required the trial court to explicitly evaluate her
mental competence to represent herself before accepting her waiver of her right to
counsel. But that argument flips Edwards' holding from permitting states to use a higher
standard to requiring states to do so. In other words, "The Constitution may have allowed
the trial judge to block his request to go it alone, but it certainly didn't require it." United
States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009).


       Burden suggests the Court of Appeals erred by not recognizing the possibility of
denying a request and, instead, left no room for a district court to find a defendant lacked
the competency to self-represent. We are not convinced that is accurate. See Burden,



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2017 WL 5507728, at *3 ("'No separate finding of mental competence, apart from
competence to stand trial, is necessary before a defendant may exercise the right of self-
representation.'" [Emphasis added.] [quoting State v. McCall, 38 Kan. App. 2d 236,
Syl. ¶ 1, 163 P.3d 378 (2007)]). But, in case others might read the Court of Appeals'
holding in that way, we clarify that Edwards allows a district court judge to deny a
request to waive counsel if a defendant has a severe mental illness. See Edwards,
554 U.S. at 178.


       As to Burden's second argument that the judge needed to use a more rigorous
standard than Dusky, Edwards did recognize that the two evaluations—one assessing
competence to stand trial and the other competence to represent oneself—demanded
different degrees of mental competency and that mental illness covers a broad spectrum
so that meeting one standard did not mean both were always satisfied. The Court noted
that "the nature of the problem before us cautions against the use of a single mental
competency standard for deciding both (1) whether a defendant who is represented by
counsel can proceed to trial and (2) whether a defendant who goes to trial must be
permitted to represent himself." 554 U.S. at 175. Yet, despite the discussion of reasons
courts could—and should—use two standards, Edwards stopped short of setting out a
required standard for determining whether a defendant is mentally competent to do so.
It left to trial courts to "take [a] realistic account of the particular defendant's mental
capacities." 554 U.S. at 177.


       Like the Court in Edwards, we decline Burden's invitation to define the condition
that might induce a trial court to take the step of refusing a defendant's request to waive
counsel. See 554 U.S. at 178 (declining to endorse federal constitutional standard
proposed in state's brief because Court was "sufficiently uncertain . . . as to how that
particular standard would work in practice," noting "[w]e need not now, and we do not,
adopt it"). Doing so here is even more inappropriate because this case does not meet the



                                               13
basic threshold set out in Edwards for the circumstance where a state might deny the
constitutional right of self-representation. That circumstance arises if a defendant has a
"severe mental illness." Edwards, 554 U.S. at 178; 554 U.S. at 175 (using term "'mental
derangement'"); see State v. Warren, No. 110,949, 2015 WL 4879034, at *10 (Kan. App.
2015) (unpublished opinion) (rejecting Edwards competency claim after concluding the
record "has not shown any incapacity due to mental illness or incompetency").


       Edwards, for example, was schizophrenic and delusional and had long periods of
hospitalization and treatment after charges were filed and before trial. In contrast, the
record does not suggest Burden had a severe mental illness. Berry, 565 F.3d 385,
presented a similar situation.


       In Berry, after a trial court allowed a defendant to represent himself, the defendant
argued the court should not have allowed him to do so because of his bizarre behavior.
The Seventh Circuit suggested a court needed some evidence of a severe mental illness as
a condition precedent to denying a defendant's right of self-representation, and held that
under the facts of that case the defendant had not made such a showing:


       "So even if we were to read Edwards to require counsel in certain cases—a dubious
       reading—the rule would only apply when the defendant is suffering from a 'severe mental
       illness.' Nothing in the opinion suggests that a court can deny a request for self-
       representation in the absence of this. Because there was no evidence before the trial court
       showing that [the defendant] had such an affliction, Edwards was simply off the table."
       565 F.3d at 391.


       We agree.


       Given that, we reject Burden's final point that the district court judge erred in not
finding her incompetent to represent herself. The record, at most, shows Burden had a



                                                    14
few outbursts in court, tended to engage in narrative questions, and went far afield when
seeking to admit evidence. Her outbursts appear to be related to a belief that invoking
dubious jurisdictional arguments would shield her from prosecution. This is not
uncommon among self-represented litigants. See Requena v. State, 310 Kan. 105, 110-11,
444 P.3d 918 (2019) (fact-findings unnecessary to resolve sovereign citizen claim,
argument has no conceivable validity in American law); State v. Robertson, 309 Kan.
602, 607, 439 P.3d 898 (2019) (no caselaw supports jurisdictional argument and
defendant cannot succeed by arguing district court lacked jurisdiction because complaint
incorrectly listed his name and identified him as a trust instead of an individual; alleged
criminal actor is object of criminal personal jurisdiction). Nor is it unusual for a self-
represented litigant to exhibit a profound lack of understanding of relevance or other
evidentiary issues. On paper, the trial transcripts do not show an incompetent person, and
there is no medical evidence in the record to support a finding of severe mental illness. In
fact, the mental competency evaluation stated that "it is this evaluator's opinion that Ms.
Burden has no significant impairment that is psychiatric in nature."


       The record also shows a district court judge who was engaged with the defendant
and observed and evaluated her behavior. As Edwards pointed out, the judge was in the
best position to "make more fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant." 554 U.S. at 177. Without an
indication Burden suffered from a severe mental illness, we find no basis to conclude the
district court judge abused his discretion when he allowed Burden to waive her right to
counsel and to represent herself before the jury.


       We affirm Burden's convictions.


       Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.



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       KAY HUFF, District Judge, assigned.1
       NUSS, C.J., not participating.2




_____________________



1
 REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 120,600 vice
Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution.

2
 REPORTER'S NOTE: Justice Nuss heard oral arguments but did not participate in the final
decision in case No. 120,600. Chief Justice Lawton R. Nuss retired effective December 13, 2019.




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