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The KBA Advocate is the weekly KBA legislative newsletter that contains up-to-date information on legislation that impacts your practice. It is only published when the legislature is in session and is sent to all KBA members electronically via the KBA Weekly.

 

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Sine Die

Posted By Joseph N. Molina III, Tuesday, May 24, 2016
Updated: Tuesday, May 24, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas Legislature will officially close shop on June 1, sine die. Normally this is a simple formality run by a skeleton crew of legislators and staff. However, this year there may be some significant work done relating to transgender individuals and public restrooms. Several conservative lawmakers would like to pass a resolution on the last day of the session.  The matter of transgender individuals’ access to public restrooms that match their gender identify was discussed early this year, but it failed to move through the legislative process. See: http://bit.ly/245REFb.

In May, the governor did sign a few pieces of legislation that will affect the practice of law in Kansas.  For instance, Gov. Brownback approved of Sen Sub for HB 2112 that amends and recodifies the Kansas Business Combinations with Interested Shareholders Act, defining key terms and prohibiting corporations from engaging in any business combination with any interested stockholder for three years following the time such stockholder became an interested stockholder, and makes other updates to the entire code.

The governor also signed off on House Sub for SB 128 which requires applicants for admission to practice law to provide the following information: name, place of residence, date of birth, sex, and the last four digits of the person’s Social Security number or the person’s full driver’s license or non-driver identification card number. A pending applicant must notify the Clerk of the Supreme Court (Clerk) in writing of any change in name or address within ten days of such change. The bill requires any person whose application is pending as of the effective date of the bill to provide the correct information required above to the Clerk within 60 days of the effective date of the bill, and requires the Clerk to send notice of this requirement within 30 days of the effective date.  This roster of licensed attorneys will be used to receive and cast ballots for lawyer members of the supreme court nominating commission.  These elections will be administered by the Kansas Secretary of State’s Office.

To view all the other bills approved and set to become law on July 1, please visit the following links:

http://www.kslegresearch.org/... 2016-preliminary-summary.pdf

http://www.kslegresearch.org/... 2016-preliminary-summary-supp-I.pdf

http://www.kslegresearch.org/... 2016-preliminary-summary-supp-II.pdf

After sine die, the legislature will close the lawmaking portion of the year and jump immediately into the election season.  We have already seen a number of ads and postcards aimed at the Kansas Supreme Court, and the Kansas GOP passed a resolution to non-retain four justices (Nuss, Luckert, Biles and Beier).  The supreme court seats up for retention election are held by Chief Justice Lawton Nuss, Justice Marla Luckert, Justice Carol Beier, Justice Daniel Biles and Justice Caleb Stegall. If retained, a justice serves for six years prior to the next retention election. Judges Steve Leben, Joseph Pierron, David E. Bruns, G. Gordon Atcheson, Karen Arnold-Burger and Kathryn Gardner hold the appeals court seats up for retention election in 2016. If retained, an appeals court judge serves for four years prior to the next retention election. Outside of the presidential race, the retention election vote looks to be the most intriguing of the lot.

However, all 165 Kansas legislative seats are up for election and with the large amount of retirements from office or individuals not seeking re-election we could see a swing towards the political center. The candidate list has grown significantly this last few weeks. 

Here is an updated list for the Kansas Secretary of State’s website. http://www.kssos.org/elections/elections_upcoming_candidate_display.asp

Interestingly, Kansas voter turnout over the last four presidential election cycles runs nearly 16 percent higher (58.25%) than in the previous four non-presidential election years (42.9%). The last day to register to vote for the Kansas State Primary Election is July 12, 2016.  The last day to vote in the general election is October 18, 2016.

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Adjournment!

Posted By Joseph N. Molina III, Tuesday, May 03, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

Early Monday morning the Kansas Legislature closed shop and headed home. The session lasted a mere 73 days, tied for the 4th shortest in history. However, add that to the 110 day record session from 2015 and the two-year running total is three days more than expected.

The legislature closed out the year by voting on the state budget (Sub for SB 249) which transfers heavily from KDOT, delays payments to KPERS and makes another round of cuts to higher education. The approved budget gives the governor more authority to handle shortfalls with further cuts with the exception of K-12.

See; http://www2.ljworld.com/news/2016/may/02/lawmakers-end-session-after-narrowly-passing-budge/;

See also; http://www.kansas.com/news/politics-government/article75256752.html

and; http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article75097932.html

In total the budget provides for $480 million in cuts by the executive, transfer of $115 million from KDOT and delaying $100 million from KPERS. All of this came after the House failed to close the 2012 LLC loophole and the Senate decided against the issue in committee.

For the KBA’s part the legislature passed its Kansas General Corporate Code update (Senate Sub for HB 2112) mere hours before the budget debate began. The corporate code update would have been a casualty of a shorter veto session, however, the Judiciary Conference Committee found time when issues surrounding a health bill sprung up. Many thanks to Judiciary Conference Committee for getting this important piece of legislation across the finish line.  Special thanks to Chairman King, Chairman Barker, Rep. Carmichael, Rep. Bruchman and Rep. Macheers.  The bill now heads to the governor for approval.

Another bill approved during veto session was a conference committee report House Sub for SB 128.  The base bill, SB 128 amends the process for filling district court judge vacancies expanding the number of nominees sent to the governor from no less than three to no more than five. In addition, when the local district judicial nominating commission stops accepting nominations, the bill requires the chairperson to make the name of each person whose nomination is accepted available to the public no less than 10 days prior to submitting to the governor.

Additionally, House sub for SB 128 included some portions of SB 197.  SB 197 would amend and create law related to the roster of Kansas attorneys, selection of lawyer members of judicial district nominating commissions, and the applicability of the Kansas Open Meetings Act (KOMA) and Kansas Open Records Act (KORA).

The Judicial Branch had its budget worked on during veto session with the passage of House sub for SB 255. This bill creates new law while reviving previously repealed statutes related to Kansas court docket fees as a result of the Solomon court case. In essence, House sub for SB 255 returns the judicial budget to the position it held immediately prior to the Solomon ruling. This includes all docket fee authority, dispositive motion fees, and surcharge limits.  Everything would be put back into place except for the non-severability clause and the provisions the Solomon case found unconstitutional.

The remaining judicial budget fixes (SB 440 and SB 454) introduced by Sen. Jeff King will be referred to the Kansas Judicial Council for further study or be reviewed in an interim committee. This determination will take place at a later date.

The official close of the session, also called Sine Die, is scheduled for 10 a.m. on June 1. This is purely ceremonial and no business is on the agenda.  It also marks the opening of campaign contributions season. Look for those in your mailbox.

It should be noted that the Kansas Supreme Court is scheduled to hear arguments on the constitutionality of the school finance equity legislation passed earlier this spring.  Should that law be found unconstitutional, the legislature may be called back for a special session. It really all depends on how the court rules.

In the meantime, please take a look at the Kansas Legislative website for a summary of bills that have passed and been signed into law. 

Summary of Legislation:

http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2016-preliminary-summary.pdf

http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2016-preliminary-summary-supp-I.pdf

Another summary is due in June.

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Veto Session Kicks Off

Posted By Joseph N. Molina III, Tuesday, April 26, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

Legislators are starting to trickle in to Topeka to wrap up the 2016 legislative session.  The main goal is to figure out how to balance the state budget after a poor Consensus Revenue Estimate. The new forecast has the state $347 million below previous estimates.  The governor has proposed three ideas on closing the gap, but none include raising revenue. The main contributors for closing the gap would be shifting money from KDOT and KPERS. All three proposals call for a 3 percent, or $17 million, cut to higher education, a transfer of $185 million from KDOT and the possibility of delaying a KPERS payment. It should be noted that this is not tied to the governor’s authority to borrow up to $100 million from KPERS with repayment this fall with 8 percent interest.

One option would also allow the state to sell off future tobacco payments. This idea was roundly criticized by advocates for children.

One option would also allow the state to sell off future tobacco payments. This idea was roundly criticized by advocates for children. Another option would be an across-the-board cut for all state agencies, K-12 education and Medicaid. See; http://www2.ljworld.com/news/2016/apr/20/new-kansas-revenue-forecast-expected-spur-budget-c/

Adding to the pressure is yesterday’s announcement by Standard & Poor that Kansas has been put on a credit watch with the intent to lower the state’s credit rating based on poor revenue numbers. See; http://www.kansascity.com/news/politics-government/article73789707.html

The idea of closing the LLC loophole has gained some momentum over the break, but the governor is still not ready to support the action. How members of the legislature (who are up for re-election) and the governor (who is not) broker a compromise remains to be seen.

The legislature has competed some of its work by passing several bills prior to the break. Here is a summary put out by the Kansas Legislative Research Department. One more summary will be released after the session closes.

http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2016-preliminary-summary.pdf

http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2016-preliminary-summary-supp-I.pdf

To break up the routine committee meeting process, the Kansas Bar Association is hosting a CLE at the Capitol again this year. This CLE is free to any lawyer-legislator. Special thanks to the Kansas Disciplinary Officer for presenting this CLE. The CLE will take place at noon on May 4.

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Veto Session Outlook

Posted By Joseph N. Molina III, Tuesday, April 05, 2016
Updated: Tuesday, April 05, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas legislature will resume its work on Wednesday, April 27. There is hallway talk that the session could last a few days, unlike last year’s record-breaking occurrence. During veto session, leadership determines when the session will come to an end; this could last from a few days to several weeks. This year, with a busy first week back, it is not unreasonable to believe the session will last more than a week.

The main issue is how poorly the April Consensus Revenue Estimates tend to come back. If revenue falls just short—like in March ($1.6 million under)—then things will move quickly. But if things get worse and numbers run similar to February ($54 million under), we may be in for a longer haul. News reports have indicated the governor has several options he could use to shore up the state budget. Sweeping from the Kansas Department of Transportation (KDOT) is always a consideration, and using his newly created authority to borrow from The Kansas Public Employees Retirement System (KPERS) dollars is another. The governor could also sell off future tobacco payments to stabilize the budget, but that seems unlikely.

The Kansas Supreme Court’s budget is in a very different position. After discussions with OJA and KDJA representatives, the judicial branch should be able to maintain its current level of service without interruptions if the major portions of the FY 15 budget remain in place. However, the judicial branch could be impacted if revenues plunge, forcing the governor to make across-the-board cuts to deal with any budget shortfall.

Forgoing that scenario, focus is on the future of the judicial branch. Sen. King introduced two bills dealing with this issue: The first is SB 440 that appears to clarify the role the Kansas Supreme Court plays in the judicial branch. The other bill, SB 454 deals with docket fees and gives authority to the Kansas Supreme Court to set rates. Both bills have been passed by the Kansas Senate.

SB 440

Supreme court’s authority of the judicial branch

SB 454

Docket fees

The Kansas House introduced their own fix to the Solomon decision and it is quite simple. Under their proposal, the judicial budget would return the court to the position it held immediately prior to the Solomon ruling. This would include all docket fee authority, dispositive motion fees, and surcharge limits. Everything would be put back into place except for the non-severability clause and the provisions the Solomon case found unconstitutional. The bill, House Sub for SB 255, cleared the Kansas House 122-0. The faith of the bill will be determined by the Judicial Conference Committee and its 6 members.

OJA also recommended raises for judges and staff, along with funds to fill the 80 full-time positions and other positions recommended by the Blue Ribbon Commission. Unfortunately, the legislature does not have the funds to make these recommendations law. Moreover, during a hearing on the topic, many found raises for judges to be ludicrous, and they would be more inclined to increase salaries for staff. The bill did not make it out of committee.

During Veto Session conference committee negotiated bills that have passed both chambers, but in different forms. These bills are considered “bills in conference”. The conference committee also discussed bills that have only passed one chamber. These bills are referred to as “conferenceable” bills. The committee can bundle bills that satisfy a subject matter test including those bills only passed by one chamber. For our purposes, many issues will be discussed in the Judiciary Conference Committee (JCC). The JCC consist of six members, the chair, vice-chair and ranking minority members of the Senate and House Judiciary Committees. The Senate members are Sen. Jeff King (chair), Sen. Greg Smith (vice-chair) and Se. David Haley (ranking minority). The House is represented by Rep. John Barker (chair), Rep. Charles Macheers (vice-chair) and Rep. John Carmichael (ranking minority).

Below are a few bills that are being considered in the JCC.

House Sub for SB 128

Increasing the number of district court judge nominees sent to the governor by district judicial nominating commissions

A bill expanding the number of nominees from no less than three to no more than five has passed the Kansas House and been discussed in conference committee. This bill, House sub for SB 128, would amend the process for filling district court judge vacancies. Specifically, when the district judicial nominating commission (commission) stops accepting nominations, the bill would require the chairperson to make the name of each person whose nomination is accepted available to the public no less than ten days prior to submitting the nominees’ names to the governor.

There is a strong possibility that House sub for SB 128 will be bundled with SB 197. SB 197 would amend and create law related to the roster of Kansas attorneys, the selection of the chairperson and lawyer members of the Supreme Court Nominating Commission, selection of lawyer members of judicial district nominating commissions, and the applicability of the Kansas Open Meetings Act (KOMA) and Kansas Open Records Act (KORA). The KBA opposes this bill.

The KBA continues to work for passage of HB 2713 dealing with the Kansas General Corporate Code. HB 2713 has passed one chamber and is a conferenceable bill. The KBA hopes to find an avenue for passed through the conference committee process.

The Kansas Legislative Research Department has complied a listing of those bills that have already passed the legislature and been signed into law by the governor. Those new laws can be found here: http://bit.ly/22YGqDQ.

Finally, the KBA will host a CLE at the Capitol on May 4 beginning at noon. All lawyer/legislators are welcomed to attend this free hour of Ethics CLE. The KBA would like to thank the Kansas Disciplinary Office for agreeing to present at this year’s CLE.

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First Adjournment

Posted By Joseph N. Molina III, Tuesday, March 29, 2016
Updated: Tuesday, March 29, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas Legislature concluded the regular session last Thursday and emptied the Capitol. First Adjournment marks the end of the normal stuff. The deadline was moved up nearly a week to “bank” those extra days for the Veto Session. Once again, the legislature has pushed off budget issues ‘til after the April Consensus Revenue Estimates come back in late April. However, the numbers for March will be out this Friday, and many suspect a lot of red.

In the past, the last day of the regular session has been a hurried affair where a few odds and ends made some noise, but nothing very spectacular. However, the end of this regular session did not go quietly as Rep. Tom Burroughs got into a heated exchange on the House floor while debating the school finance equity fix. Rep. Burroughs did apologize for his lack of decorum, but the room was still a little charged. The bill still passed out on a motion to concur 93-31 as moderates joined with leadership to end the regular session.

See: http://www.kansas.com/news/politics-government/article67978492.html – Wichita Eagle;

http://cjonline.com/news/2016-03-24/legislature-passes-school-finance-equity-plan-slammed-topeka-schools – Topeka Capital Journal;

http://bit.ly/1REM3SC – Garden City Telegram

As for judiciary bills, the House and Senate met three times last week to begin the process of bundling like-minded bills in conference. The big issues include a potential combination of the judicial fee bill, House sub for SB 255 and SB 440 allowing the Supreme Court more authority over the judicial branch. The Senate feels strongly that SB 440 should be added to comply with the Solomon decision and rebuild the wall of separation of powers between the branches.  The House feels that their answer to the Solomon decision, putting things back the way there were—except for the non-severability clause and other unconstitutional provisions—is the easiest fix. This is one of handful of issues the Judicial Conference Committee needs to resolve.

The other big court issue deals with House Sub for SB 128 increasing the number of district court nominees from no less than three to no more than five.  Here the Senate wants to add SB 197 which allows the Secretary of State to run the elections for members of the Supreme Court Nominating Commission. It also allows the governor more oversight of that commission. The KBA opposed this bill last session.

For those who thought the end of the regular session might mean a reprieve from discussions of retention elections, I give you the latest opinion column from the Wichita Eagle, http://www.kansas.com/opinion/opn-columns-blogs/article68699967.html. Also keep in mind that SB 439, impeaching judges and justices, is in conference committee. The KBA will closely monitor its progress.

The Judiciary Conference Committee will also bundle three bills dealing with open records. The committee plans to add SB 98, SB 415 (including a controversial gaming component that caused a bit of dust up in the House) and SB 361 into Sub for SB 22.  The committee also plans to create a children and minors bundle.

The KBA continues its work with members from the House to find a way forward for HB 2713. The Kansas House has a very strong position for passing HB 2713, corporate code update.

The Veto Session begins on April 27.  Both chambers have several important conference committee reports to negotiate, especially the property tax lid. The judiciary conference committee will meet on April 27 to continue its negotiations.

For those looking for bills passed and already signed into law, the Kansas Legislative Research Department put out its first Legislative Summary this week. http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2016-preliminary-summary.pdf

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Politics Coming to a Head

Posted By Joseph N. Molina III, Tuesday, March 15, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas Legislature took some interesting turns this week as the session approaches Drop Dead day. The Senate tried to override the governor’s veto of the Docking building contract, but relented on the fears of another downgrade in the state’s bond rating. Both chambers have come up with school finance proposals that attempt to satisfy the court’s ruling, and House democrats were able to send an anti-refugee bill back to committee.

For issues concerning the courts, the most public issue was the effort to expand the grounds for which justices can be impeached.  That bill, SB 439, was passed out of committee yesterday on a 7-4 vote. Senators King, Haley, Pettey and McGinn all voted no. The bill was amended to include the executive branch.  Next stop is the Senate floor where it is expected to pass since 18 senators are co-sponsors of the bill.

However, public scrutiny of this issue has been wide spread.

Kansas Conservatives Advance Bill on Impeachment of Judges – AP News;

Judge impeachment bill moves to Kansas Senate floor – Wichita Business Journal;

Bill would allow impeachment of Kansas Supreme Court justices – LJWorld.com;

Frustrated Kansas GOP lawmakers weigh move to impeach top judges – KS Star

The most pointed support for SB 439 came from Sen. Forrest Knox who called the Kansas Supreme Court members kings and that their actions should have political consequences.

Another interesting issue deals with the Supreme Court authority of the judicial branch. As previously reported, Sen. King introduced two bills that would fix the judicial branch budget after the Solomon case struck down laws passed in 2014 and 2015.  This fix was in the form of SB 440 and SB 454. SB 440 rebuilds the wall between the courts and the legislature by providing the Kansas Supreme Court with authority over the judicial branch.  SB 440 passed the Senate on Feb. 23 with a 28-9 vote. However, SB 454 that provides key funding provisions including docket fee authority has been passed over in the Senate and has still not been debated. 

As such, the House Judiciary Committee took it upon themselves to fix the judicial budget by returning the court to the position it held immediately prior to the Solomon ruling. This would include all docket fee authority, dispositive motion fees, and surcharge limits.  Everything would be put back into place except for the non-severability clause and the provisions the Solomon case found unconstitutional. The new bill will be House Sub for SB 255 and it should be out early next week.

The KBA also provided neutral testimony on SB 393 dealing with domestic violence and child custody/parenting time. The bill was opposed by several judges, one of which chairs the Family Law Advisory Committee for the Kansas Judicial Council. 

The Senate also introduced SB 503 this week which mandates the Department of Corrections develop rules and regulations to incentivize community corrections and court service officers to consolidate operations.  This proposal comes from the A&M efficiency study.  The bill was referred to Senate Corrections, but is unlikely to get a hearing.

The Kansas House passed two probate bills this week: SB 319 dealing with venue and SB 321 dealing with protective wills. The KBA originally introduced SB 321 in 2015. The KBA was also able to get the UCC Article 9 amendments passed out of the Senate Judiciary Committee.

Finally, HB 2713 update to the general corporate code is up for hearing on Wednesday, March 16.

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Turnaround Action

Posted By Joseph N. Molina III, Tuesday, March 08, 2016
Updated: Tuesday, March 08, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

Last week was a short week for legislators as they returned from First Adjournment break to begin the second half of the session.  Legislators began serious consideration of issues on Thursday with both the Senate and House Judiciary Committees in action.

The bulk of the work came from the Senate Judiciary Committee as they heard four bills on Thursday which included:

SB 439

Grounds for impeachment of judges and justices

SB 467

Prohibiting certain lawyers from advertising in Kansas

Sub HB 2062

Uniform Commercial Code Article 9

 

SB 439 dealing with impeachment of justices and judges was the most contentious of issues.  Proponents of the bill included Sen. Greg Smith (Vice-Chair of Senate Judiciary) and Sen. Mitch Holmes (R-St. John). I have attached their testimony.  The main crux of the debate was whether SB 439 expanded the grounds for impeachment.  Proponents argued that the bill merely defined the grounds for impeachment while opponents argued that the bill was an unconstitutional violation of the separation of powers doctrine.

Opponents of the bill included the KBA, Pedro Irigonegaray, Kansas Association for Justice (KSAJ), Kansas Association of Defense Council (KADC) and the Kansas District Judges Association. 

There appears to be enough support from the committee to recommend SB 439 favorably. The question now becomes whether the Senate as a whole wants to deal with another controversial issue.

SB 467 is an interesting bill dealing with non-Kansas licensed lawyers advertising in Kansas.  The bill was supported by Mark Hutton of the Hutton & Hutton LLC out of Wichita.  The main issue for Hutton was the protection of consumers who are unaware they maybe dealing with an attorney not licensed in Kansas. 

Opponents of SB 467 believe the bill violated the First Amendment and that proper remedies exist within the Kansas Supreme Court.

Senate Sub of HB 2062 is a carryover bill from last session.  This bill is highly technical and concerns electronic fund transfers governed by the UCC Article 9.  The KBA, along with the Kansas Bankers, introduced the bill and worked for its passage.  We are confident that the bill will be recommended favorably by the committee and pass the Senate.  At that point it will go to the governor’s desk for approval.

The House Judiciary heard only one bill this week but it was an important bill dealing with salary adjustments for judges and non-judicial staff.  Thirteen organizations testified in support of the bill, including the KBA.  The committee was very critical of raises for judges who currently make in excess of $100,000 (with an exception for magistrate judges) but were more likely to support non-judicial staff increases.

However, with the current fiscal outlook for the state ($53 million below expectation for February) it is highly unlikely that anything gets done this session.  On the positive side, the conversation has begun and interested parties can work toward a resolution once the financial issue is resolved.

HB 2704

Judicial Branch Salaries of judges and justices, appropriations for FY 17

 

The KBA’s Corporation Code update has finally been completed and is ready for hearing.  The bill is tentatively set for hearing on Thursday, March 17 at 3:30 p.m.  Bill Matthews and company will testify on behalf of the KBA.

HB 2713

Amending the Kansas General Corp Code

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Turnaround

Posted By Joseph N. Molina III, Wednesday, February 24, 2016
Updated: Wednesday, February 24, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas Legislature looks to close out the first half of the session in grand style by working nearly 50 bills before the deadline hits. The legislature pushed up this pivotal deadline to bank days upon their return. Not being discussed is the Gannon equity decision, Medicare Expansion or closing the LLC loophole. But don’t be surprised if someone tried to work these into a debate on the floor through amendment.

Last week the KBA testified against another proposal to alter merit selection, HCR 5013. The hearing took place in House Judiciary with the Kansas chamber supporting the change. HCR 5013 would change the composition of the nominating commission to include four elected lawyers (per congressional district), five appointees from the governor and six legislators ( speaker appoints two, Senate president appoints two and the minority party appoints two).

The Kansas chamber supports altering the nominating commission over partisan elections because elections can be very expensive. Opposing HCR 5013 was Matt Keenan, Supreme Court Nominating Commission member, Lynn Johnson for Kansas Association for Justice (KSAJ), Nathan Leadstrom for Kansas Association of Defense Counsel (KADC), Natalie Haag for the KBA and Kathy Ostrowski for Kansans for Life. Kansans for Life strenuously opposed HCR 5013 because they feel the nominating commission is the worst selection process. They support the governor-appoint model, which failed 68-53 last week, or partisan elections which the Kansas chamber strongly opposes.

There is no time table for the committee to work HCR 5013.

The House Judiciary Committee did pass out of committee HB 2652 which increases the number of judicial district nominees to no less than three to no more than five. The committee did place HB 2652 into House Sub for SB 128. So moving forward the bill to watch for this proposal is House sub for SB 128.

The Senate Judiciary Committee passed out the Supreme Court authority over the judicial branch bill (SB 440) and the docket fee bill (SB 454). The issue is Sen. Forrest Knox made an amendment to add SB 439 language into SB 440. SB 439 is the impeachment of judges and justices bill which did not get a hearing and was not discussed at any point this session. Sen. Mitch Holmes attempted to add this language last year on the Senate floor, but it was found to be non-germane. This year they bypassed that issue by placing it into a bill in committee.

The Senate Judiciary also passed out two family law bills of interest to family law practitioners. The first is SB 393, which makes domestic violence a primary factor in determining child custody and parenting time. The second was the CARE pilot program for foster care families, SB 410.

Finally, the KBA testified on three other bills this week. They include the following:

Bill Description Section Status

HB 2642

Planning and zoning; platted lots subdivided; notice and public hearing

Real Estate

Neutral

HB 2649

Kansas Energy Efficiency Act

Title Standard

Oppose

SB 425

Conservation easements

Real Property

Oppose

With the turnaround deadline moved up nearly a week, it seems unlikely that these bills will survive the deadline. However, there may still be time to have the bills “blessed” by referring them to an exempt committee. Should that happen, please look for updates in The Advocate.

One interesting bill did pop up late last week as SB 467, which deals with attorney advertisement, was introduced into Senate Way and Means Committee. This bill prohibits a non-Kansas attorney from soliciting Kansas residents. A similar idea was floated a few years ago, but it failed to gain traction.

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Nearing Mid-Session

Posted By Joseph N. Molina III, Tuesday, February 16, 2016

The Kansas Legislature will reach its halfway point of the 2016 session on Saturday, February 27th with the passage of the House of Origin deadline, marking the date in which all non-exempt legislation must advance out of its house of introduction, or is considered dead for the remainder of the session. However, several exempt committees continue to work through legislative initials. These exempt committees include House Appropriations, Senate Ways and Means, House and Senate Federal and State Affairs and House Taxation. The House and Senate Judiciary Committees are not exempt committees and all legislation must be passed out prior to the deadline to be considered.

This deadline has created a sense of urgency throughout the Kansas Legislature as they continue to take action on bills passed out of various committees this week. Non-exempt committees that meet in the afternoon have until February 26 to get bills out, while morning committees will have until the 27th, after which both chambers will be on the floor debating bills. Even numbered years are considered the out year for legislation as House members will all be up for elections this November. As such, legislation that does not pass this session must be reintroduced next year.

Thus far the session and most of the state has been focused on the budget. January revenues were nearly $7 million below estimates. Coupled with the previous month's deficit, it will be difficult for the Legislature to avoid another round of mid-year budget cuts for this 2016 fiscal year. If things don't improve, and recent history suggests it won’t, the legislature will be dealing with an even larger deficit for 2017 than the $175 million shortfall currently projected.

Adding to the pressure was last week’s Gannon decision that found the school block grant law unequitable. The Kanas Supreme Court stayed the ruling till June 30, 2016 (end of FY16) so the legislature can fix this issue. If the issue is not resolved schools will be closed starting July 1, 2016.

Judicial Budget

In December of 2015 the Kansas Supreme Court ruled on the Solomon case and found provisions in the judicial branch budget for FY 14 (HB 2338) & FY 15(HB 2005) unconstitutional. Those provisions included the requirement that district judges elect their chief judge and that chief judges have greater control of the budget given to them by the Office of Judicial Administration.

Sen. King has introduced two bills dealing with this issue. The first is SB 440 that appears to clarify the role the Supreme Court plays in the judicial branch. The other bill, SB 454 deals with docket fees and gives authority to Supreme Court to set rates. A hearing on SB 440 was set for Monday, February 15th in Senate judiciary committee.

Bill Description

SB 440

Supreme court’s authority of the judicial branch

SB 454

Docket fees

HB 2687

Supreme Court authority over judicial branch

Merit Selection

Two weeks ago changes to the merit selection method, specifically HCR 5005 were voted on by the Kansas House. The KBA working very closely with KSAJ, KADC, KDJA, KS School Board Association, several lawyer legislators and individual KBA members to defeat the proposal 68-54. Constitutional amendments require a 2/3 vote or 84 votes to be approved.

There are several proposals to change merit selection including partisan elections and a change to the make-up of the nominating commission members. HCR 5013 has been scheduled for hearing next Tuesday at 3:30pm in House Judiciary. The KBA will continue to oppose these measures and work with interested parties to defeat these measures.

A new bill expanding the number of nominees from no less than three to no more than five has also been introduced. This bill is set for a hearing in House judiciary on Wednesday, February 17th.

Bill Description

HB 2652

Increasing the number of district court judge nominees sent to the governor by district judicial nominating commissions

KBA Proposals

The KBA introduced three bills this session. They include the following:

Bill Description

HB 2651

Transfer on death deeds, lapsing or vesting of ownership in grantee beneficiary

Revising the Kansas General Corporation Code

HB 2109 clarifies the transfer of ownership in property when the grantor issues a transfer of death deed naming two or more beneficiaries. The bill is designed as an anti-lapse provision allowing the property to vest in the beneficiary’s surviving heirs should the beneficiary die prior to the record owner grantor. This is the fourth version of the proposal and it is very likely that House Judiciary Chairman John Barker will assign this issue to Kansas Judicial Council for an interim study.

The KBA proposed updates to the entire Kansas General Corporation Code. Since October 2014, a special committee of the KBA’s Corporate, Banking, and Business Law Section composed of practitioners and academics (described below) has been considering comprehensive updates to the Kansas General Corporation Code. The committee’s primary focus has been to consider innovations adopted in Delaware and propose corresponding changes made to the DGCL since the last comprehensive KGCC update in the 2000 Legislature. This not only allows Kansas businesses and the Kansas legal community to take advantage of the best body of corporate law, but also to leverage the rich and vast body of judicial precedent based on those statutes. We also sought to identify and correct deficiencies in the present law.

The committee is also composed of Bill Matthews (Chair), a corporation attorney in Wichita, Bob Alderson, a corporate practitioner in Topeka; Webb Hecker, a corporate law professor at KU in Lawrence; Virginia Harper Ho, a corporate law professor at KU in Lawrence; Joseph Jarvis, a corporate practitioner in Lawrence; Garrett Roe, an attorney on the staff of the Secretary of State; Bill Quick, a corporate practitioner in Kansas City; and Bill Wood, a corporate practitioner in Wichita.

Another interesting bill was SB 17 that expands the Kansas Judicial Council by including the chairs of the Senate/House Corrections Committees. This is an uncontroversial bill however; Rep Craig McPherson was able to pass an amendment that allows the governor to appoint 4 lawyers to the committee. At present the Chief Justice appoints four judges and four attorneys to the committee and two legislators (House/Senate judiciary chairs) are members. Should this bill as amended pass the chief justice would appoint 4 judges, the governor would appoint 4 lawyers and the legislator would be represented by 4 members. Efforts to add the ranking minority party committee members were defeated as being political.

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Merit Selection Vote Fails

Posted By Joseph N. Molina III, Tuesday, February 09, 2016
Updated: Monday, February 08, 2016

The dominating issue this week was changes to the merit selection method, specifically HCR 5005.  The KBA worked very closely with KSAJ, KADC, KDJA, Kansas School Board Association, several lawyer-legislators and individual KBA members to defeat the proposal 68-54. Constitutional amendments require a 2/3 vote or 84 votes to be approved. I would like to highlight the efforts of Rep. Blaine Finch and Rep. John Carmichael.

The following lawyer-legislators voted AGAINST HCR 5005:

  • Rep. Steven Becker
  • Rep. John Carmichael
  • Rep. Blaine Finch
  • Rep. Boog Highberger
  • Rep. Fred Patton
  • Rep. Jim Ward

The following lawyer-legislators voted IN FAVOR HCR 5005:

  • Rep. John Barker
  • Rep. Rob Bruchman
  • Rep. Erin Davis
  • Rep. Lane Hemsely
  • Rep. Mark Kahrs
  • Rep. Charles Macheers
  • Rep. Craig McPherson
  • Rep. Jan Pauls
  • Rep. John Rubin
  • Rep. James Todd (carried bill).

The proposal garnered significant media attention as seen by the following news stories:

The KBA would like to thank each of the legislators who voted to uphold the current merit selection process, and protect the integrity of the Supreme Court Nominating Commission. They are:

Rep. Alcala Rep. Ewy Rep. Jennings Rep. Sawyer
Rep. Alford Rep. Finch Rep. Kelly Rep. Schroeder
Rep. Ballard Rep. Finney Rep. Kuether Rep. Scott
Rep. Becker Rep. Francis Rep. Lewis Rep. Sloan
Rep. Bollier Rep. Frownfelter Rep. Lusk Rep. Swanson
Rep. Burroughs Rep. Gallagher Rep. Lusker Rep. Thompson
Rep Carlin Rep. Helgerson Rep. Moxley Rep. Tietze
Rep. Carmichael Rep. Henderson Rep. Ousley Rep. Trimmer
Rep. Clark Rep. Hibbard Rep. Fred Patton Rep. Victors
Rep. Clayton Rep. Highberger Rep. Phillips Rep. Ward
Rep. Concannon Rep. Hill Rep. Proehl Rep. Whipple
Rep. Curtis Rep. Hineman Rep. Rooker Rep. Wilson
Rep. Dierks Rep. Houston Rep. Ruiz Rep. Winn
Rep. Doll Rep. Wolfe Moore

 

There remain several proposals to change merit selection including partisan elections and a change to the makeup of the nominating commission members (HCR 5013). The KBA will continue to oppose these measures, and work with interested parties to defeat these proposals.

In other news, the KBA provided an expert immigration lawyer to provide neutral testimony on HB 2466, dealing with sanctuary cities in Kansas.  The KBA did not take a position. Michael Sharma-Crawford testified that he was successful in suing Seward County on an unconstitutional detaining, and that HB 2466 would provide immigration lawyers with more opportunities to file actions against municipalities. HB 2466 had significant opposition, but is supported by Kansas Secretary of State, Kris Kobach.  There is no time table for the committee to work this bill.

Another interesting bill was SB 17 which expands the Kansas Judicial Council by including the chairs of the Senate and House corrections committees.  This is an uncontroversial bill however; Rep Craig McPherson was able to pass an amendment that allows the governor to appoint four lawyers to the committee. At present, the chief justice appoints four judges and four attorneys to the committee, and two legislators (House/Senate judiciary chairs) are members. Should this bill pass as amended, the chief justice would appoint four judges, the governor would appoint four lawyers, and the legislator would be represented by four members. Efforts to add the ranking minority party committee members were defeated as being political.

Next week the KBA will be working on two judicial council probate bills (SB 319 venue for small claims and SB 321 protective filings for divorce), and finalizing the Kansas General Corporate Code update.

The KBA is monitoring several more bills:

House bills

Bill Description

HB 2579

Authorizing the use of correction orders and civil penalties for health care facilities that violate health care provider insurance statutes.

HB 2585

Establishing the foster care oversight task force

HB 2587

Prohibiting adoption of sanctuary policies

HB 2592

Amending the burglary to exclude premises that are at the time open to the public

HB 2593

Allowing certain felonies to be videotaped

 

Senate bills

Bill Description

SB 393

Consideration of domestic abuse in determining the issue of custody, residency and parenting time of a child

SB 394

Enacting the supporting family act, relating to temporary care of children

SB 410

Establishing the CARE family pilot program for foster care

These three family laws bills are being reviewed by the KBA Family Law Section.  SB 410 is a reincarnation of a bill proposed by Sen. Forrest Knox that creates a more qualified foster parent should certain qualifications be met.

Tags:  2015-16  HCR 5005 

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