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Legislature Makes Quick Work of 2013 Special Session

Posted By Joseph N. Molina III, Monday, September 09, 2013
Updated: Monday, September 09, 2013

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 2002 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” reads:

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.

Proponents 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 in Alleyne v. U.S., 133 S. Ct. 420 (2012), can HB 2002 apply to defendants who are subject to the Hard 50 sentence?


Opponents 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 please see:

Quick 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.


While it 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,,


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,,


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 nomination:

Tags:  Alleyne  Brownback  Court of Appeals  Hard 50  HB 2002  legislature  Special Session  Stegall  Supreme Court 

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