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Dester v. Dester

Court of Appeals of Kansas

September 19, 2014

MELISSA ANNE DESTER, Appellee,
v.
CHAD MICHAEL DESTER, Appellant

Page 120

Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge.

SYLLABUS

BY THE COURT

1. The Protection from Stalking Act, K.S.A. 60-31a01 et seq., provides that it is to be liberally construed to protect victims of stalking and to facilitate access to judicial protection for those victims, whether they are represented by counsel or proceeding pro se.

2. To determine whether a statute applies retroactively or prospectively, the general rule is that a statute operates prospectively unless (1) the statutory language clearly indicates the legislature intended the statute to operate retrospectively or (2) the change is procedural or remedial in nature, not substantive.

3. Procedural laws deal with the manner and order of conducting suits--in other words, the mode of proceeding to enforce legal rights. Substantive laws establish the rights and duties of parties. There is no vested right in any particular remedy or method of procedure.

4. The 2012 amendments to the Protection from Stalking Act deal with the remedies portion of the Act, which sets forth the type of relief a victim of stalking may obtain from the court and the procedure for doing so, and are procedural or remedial in nature.

5. Amendments which are procedural or remedial may not be applied retrospectively if they would prejudicially affect a party's substantive or vested rights.

6. " Vested rights" is a term used to describe rights that cannot be taken away by retroactive legislation. Retroactive legislation affecting vested rights would constitute the taking of property without due process.

7. Reviewing " vested rights" cases requires a look beyond the labels to the ingredients that shaped the courts' conclusions. Important factors are: (1) the nature of the rights at stake ( e.g., procedural, substantive, remedial); (2) how the rights were affected ( e.g., were the rights partially or completely abolished by the legislation; was any substitute remedy provided); and (3) the nature and strength of the public interest furthered by the legislation.

8. There can be no vested right in an existing law which precludes its change or repeal as applied to pending litigation.

9. Because no one has a vested right in stalking or harassing anyone, the 2012 amendment to the Protection from Stalking Act that allows extensions of final protection from stalking orders beyond two years is procedural and remedial in nature, does not impact any vested rights, and therefore is to be applied retroactively to existing orders.

Dan M. McCulley, of Konza Law, L.L.C., of Manhattan, for appellant.

No appearances by appellee.

Before POWELL, P.J., MCANANY, J., and BUKATY, ...


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