The Kansas Legislature managed
to make quick work of the 22nd Special Session. The Legislature managed to
draft a bill, hold hearings in both chambers, pass one amendment in committee,
defeat another amendment on the House floor (Ward’s Voter’s rights bill), and
approve a bill—all in less than two full days. That is very impressive for a
group of legislators who led a nine-day overtime period in the veto session. That
type of efficiency should be commended.
As for the main reason
for the Special Session, the Hard 50 ruling, the Legislature
managed to pass out HB 2002. This bill was crafted
by the Kansas Attorney General’s Office, with input from various law
enforcement and prosecuting attorney groups. Please read the supplemental not on HB
for more information.
The Kansas County and
District Attorney Association played a vital role in moving this bill so
quickly through the process. The KCDAA enlisted a number of district attorneys to
support the bill. DAs Marc Bennett and Steve Howe testified in support of the
Hard 50 fix. They argued that the fix was needed to restore certainty to the
sentencing process. The most compelling testimony came from Sen. Greg Smith,
who testified on behalf of victim’s families.
While HB 2002 faced
little opposition when the final votes were tallied (122-0 in the House and
40-0 in the Senate), there were some concerns that the "retroactivity”
provision in the bill would fail the constitutionality test. Subsection ”d”
The amendments to subsection (c) by this act: (1) Establish a
procedural rule for sentencing proceedings, and as such shall be construed and
applied retroactively to all crimes committed prior to the effective date of
this act, except as provided further in this subsection; (2) shall not apply to
cases in which the defendant's conviction and sentence were final prior to June
17, 2013, unless the conviction or sentence has been vacated in a collateral
proceeding, including, but not limited to, K.S.A. 22-3504 or 60-1507, and
amendments thereto; and (3) shall apply only in sentencing proceedings
otherwise authorized by law.
argued that a procedural change could be applied retroactively so long as it
does not alter the substantive language of the statute. By merely providing for
a new sentencing process, which is in line with the U.S. Supreme court ruling
v. U.S., 133 S. Ct. 420 (2012), can HB 2002 apply to defendants
who are subject to the Hard 50 sentence?
of HB 2002 argued that creating a new process for sentencing is a substantive
change since the U.S. Supreme Court found the old rule unconstitutional,
thereby voiding that statute. By passing HB 2002, opponents argued, the
Legislature has re-created the Hard 50 policy that is a substantive change to
the criminal code.
How the courts interpret
this change will take some time, but revisiting the Hard 50 policy is not out
of the realm of possibilities.
For more Hard 50 news
take: Rep. Edwin Hale Bideau III (R- Chanute) passed away on September 5,
2013. Bideau was born in Chanute on October 1, 1950. He received both his business
and law degrees from Washburn University in Topeka. Bideau served two stints
in the Kansas Legislature, once in 1984 and again in 2012. Funeral services will
be held at 2 p.m. on Tuesday, September 10, 2013 at the First Presbyterian
Church in Chanute.
While the Hard 50 took a
significant portion of the Special Session, the political attention of many was
firmly placed on the confirmation hearing on Caleb Stegall. As has been
reported repeatedly, Stegall is the chief counsel to Gov. Sam Brownback. He applied
for the previous two Court of Appeals openings created with the retirement of Judge
Christel Marquardt and the sudden death of Chief Judge Richard Green. In both
instances, Stegall failed to advance to the final three nominees. Judges Kim
Schroeder and Anthony Powell were selected for these two openings.
The governor argued for
a change to the selection process for the Kansas Court of Appeals, and with the
aid of his chief counsel and the Kansas Legislature, the process was altered to
allow the governor to nominate any individual and the Senate to confirm that
nominee. It is important to point out that Stegall, on behalf of the governor’s
office, testified on several occasions in support of the change.
Stegall, along with 18
other individuals, applied for the vacant 14th Court of Appeals position. The governor
formally nominated Stegall on August 22. The Senate held his confirmation
hearing on September 3 and the full Senate confirmed him on September 4. The
final vote was along party lines 32-8.
was apparent that Stegall had a majority of individuals willing to support his
nominations, Democrats decried the process by which he was nominated. Democrats
argued that the new process was secretive and less open than the merit
selection process. See Irony
swirls around Brownback's cloak of judicial secrecy, CJOnline.com,
In addition, several
Kansas lawyers, two who wrote letters of recommendation for Stegall, found the
new process unappealing. One even stated that the new process weakened Kansans’
confidence in their judges. See Notable Kansans weighing in against new appellate
court selection process, LJWorld.com, http://www2.ljworld.com/news/2013/aug/30/notable-kansans-weighing-against-new-appeallate-co/.
Nevertheless Stegall was
easily confirmed. However, it appears likely that Democrats will push to alter
the selection process by making the application process more open. Sen. Anthony
Hensley has pre-filed a bill for the 2014 session that would require the governor
to release the names of any applicants. How this is received in January may
shape the entire session.
Reaction to the Stegall