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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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Top tags: legislature  Brownback  Supreme Court  budget  Gannon  Hard 50  Alleyne  Court of Appeals  judicial branch  school finance  Senate  Special Session  2016 Session  Caleb Stegall  HCR 5005  Kansas Supreme Court  legislators  merit selection  Montoy  opening  State of the Judiciary  2014 Session  2015 Session  2015-16  annual  Brown v. Board of Education  Call to Action  civil rights  conference  Daily Show 

Merit Selection Vote Fails

Posted By Joseph N. Molina III, 4 hours ago
Updated: 16 hours ago

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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Call to Action: Vote NO on HCR 5005

Posted By Joseph N. Molina III, Wednesday, February 03, 2016
Updated: Wednesday, February 03, 2016
Call to Action: Vote NO on HCR 5005

To Kansas Bar Association Members:

The Kansas House will discuss changes to merit selection today and tomorrow in caucus. The discussion will be how Kansas Supreme Court Justices are selected. There are a number of proposals before them, but the push would be to approve HCR 5005. This would eliminate the Supreme Court nominating commission, and replace it with a process allowing the governor power to nominate any person for appointment, subject only to senate approval.

Prof. Stephen Ware and Kansas AG Derek Schmidt have been invited to the House Judiciary Committee to discuss merit selection, and the Carr brother’s death penalty case respectively.

This is a direct attack on the independence of the Kansas judicial system, and a significant blow to the separation of power. The merit selection proposal requires a Constitutional majority, or two-thirds of the vote to be approved.

To avoid such an outcome, the KBA requests you contact your Kansas House of Representative member and urge them to vote NO on any changes to the current merit selection system for Kansas Supreme Court Justices. 

They should vote NO for the following reasons:

  • The current merit selection method places independent and qualified judges on the bench
  • HCR 5005 calls for Senate confirmation of appointees which will result in political bickering
  • Recent polling indicates that Kansans like the current method
  • Kansans deserve a process free of politics, and an independent court system maintaining separation of powers as outlined by the Kansas   Constitution

Find your legislators and view a sample email and talking points by following these links.
Call to Action Sample Email or Talking Points, if you would rather call.

Let your legislators know you believe in the Kansas tradition of merit selection, and the excellence and independence it has created in our appellate courts.

Kansas Bar Association | 1200 SW Harrison St., Topeka, KS 66612-1806
Ph: (785) 234-5696 | Fax: (785) 234-3813 | Email: info@ksbar.org

Tags:  Call to Action  HCR 5005 

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Judicial Budget, Death Penalty and More

Posted By Joseph N. Molina III, Tuesday, January 26, 2016
Updated: Tuesday, January 26, 2016

The second week of the legislative session saw as much activity as the first, even though it was a day shorter. A host of new bills were introduced by the Kansas House, mostly by the House Federal and State Affairs Committee. These bills range from concealed carry to session days to immigration law, all of which look to be election year fodder. However, the Kansas House did take significant steps when they passed HB 2449, repealing the non-severability clause from the 2015 judicial branch budget. The vote was taken last week and HB 2449 was approved 119-0. HB 2449 now heads to the Kansas Senate where they have an identical bill (SB 320). How they proceed and what type of debate takes shape remains to be seen, but the hope is for a quick and unencumbered resolution. The Senate Judiciary Committee will hear an update on the Solomon case on Thursday, January 28, but as of today no hearing is set for HB 2449.

There were also a few rulings released this week that will have an impact on the legislature. The big news was the ruling by the United States Supreme Court to overturn the Kansas Supreme Court on the death penalty case. That case, Kansas v. Carr, created quite a bit of discussion under the dome. Many legislators praised the ruling as long overdue justice, and criticized the Kansas court for being anti-public safety. Several legislators thought this was further evidence of the need to change the merit selection system. On a related note—HCR 5013 which would alter the Supreme Court nominating commission –has not been rescheduled. Read the Wichita Eagle report.

The other cases included the Kansas Supreme Court voiding a Wichita ordinance lessening the penalties for marijuana, and the Kansas Court of Appeals keeping an abortion law on hold.

Next week, the KBA will be monitoring several bills including SB 96 dealing with disclosure of unanticipated medical outcomes, and HB 2466, prohibiting sanctuary resolutions by Kansas municipalities. The immigration issue is a hot topic, and the House Fed/State committee will hear at least two other immigration bills this session.

The KBA will also be monitoring the following bills:

Bill Description

HB 2472

Clarifying jurisdiction of Board of Tax Appeals

HB 2487

Legislative subsistence allowance; repealing provisions increasing the allowance to match the federal employee per diem expenses and setting the allowance at $129 per day.

HB 2501

Clarifying the definition of crime committed with an electronic device.

HB 2502

Amending court procedures in motion to attack sentence regarding time limitations and findings of manifest injustice.

HB 2504

School District Realignment

HB 2506

False statements against candidates for state office

HB 2513

Limiting the days of session

SB 331

Kansas firearms industry nondiscrimination act

SB 334

Requiring notice to the AG before any Kansas Court determines a law is invalid or unconstitutional


The KBA will be introducing two proposals this week. The first is the transfer on death deed amendments, and the other the Kansas General Corporate Code update. Both bills will be introduced into House Judiciary Committee.

For more information please see www.ksbar.org or follow the KBA on Twitter @KansasBarLeg.

Tags:  2016 Session  Kansas v. Carr  marijuana 

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Quick Start

Posted By Joseph N. Molina III, Tuesday, January 19, 2016
Updated: Tuesday, January 19, 2016

The Kansas Legislature returned last Monday, January 11 to begin its annual work. Traditionally, the first week is a rather uneventful time. The primary goal of legislators is to acquaint themselves with chamber rules, committee assignments and new staff members. However, this year committees began meeting and hearing proposals almost immediately.

For instance, House Appropriations and Senate Judiciary committees held hearings for SB 320 & HB 2449. These bills would strike the non-severability provision in the 2015 judicial budget. Both hearings lasted around 30 minutes with both bills passing favorably out of their respective committees. SB 320 was even placed on the consent calendar as an noncontroversial item. Judge Dan Creitz appeared on behalf of the Kansas District Judges’ Association in support of both bills. The Office of Judicial Administration was represented by chief fiscal officer Stephanie Bunten.

There were significantly more questions from the House Appropriations Committee as they discussed HB 2449. The committee was interested in whether the court was willing to participate in budget reduction should the economy falter. They also wanted to know how many days the court would be forced to close should a budget reduction of (a hypothetical) $2 million be imposed. While this was not the point of HB 2449, it does forewarn of the possibility that the judicial budget could be reduced to help with the overall state budget issues.

The hearing for SB 320 was shorter with only one question from Sen. King which dealt with timing. However, Sen. King did indicate that the provision in the judicial budget passed last session would be revisited in two weeks. This indicates the senator’s plans to amend the judicial budget beyond simply removing the non-severability provision. What amendments are proposed remains to be seen.

The other big news was Gov. Sam Brownback’s State of the State address. Those remarks are attached here. http://cjonline.com/news/2016-01-12/2016-state-state-speech-sam-brownback-complete-transcript

The governor focused on water rights, defunding Planned Parenthood, resettlement of refugees and Guantanamo prisoners, refusal to expand Medicaid, a property tax lid, and changes to the merit selection process.

On that point, the House Judiciary Committee was scheduled for a hearing on HCR 5013.This resolution would expand the nominating commission to 15, with four lawyers elected by congressional district, five appointed by the governor (one non-voting chair), and six by the legislature (two by the Speaker, two by the Senate president and one by the minority party in both chambers).The resolution would also elevate the Kansas Court of Appeals to a constitutional office. The KBA was scheduled to testify in opposition to this resolution. Other opponents included, Kansas Association of Justice, Kansas Association of Defense Counsel, Wichita Bar Association, Kansas Association of School Boards, Kansas for Life, and a member of the Supreme Court Nominating Commission, and Rep. John Carmichael. There were no proponents signed up to testify. As such, the hearing was cancelled.Chairman Barker did indicate it would be rescheduled for a later time.

The KBA is currently monitoring the following bills:

House Bills

Bill Description

HB 2449

Repealing the nonseverability clause

HB 2458

Repeal special sentencing rule for third time possession of a controlled substance.

HB 2459

Amending the criminal penalties for unlawfully tampering with electronic monitoring equipment

HB 2460

Linking person or nonperson underlying crime designations to violations of the Kansas offender registration act.

HB 2462

Increase theft loss value required for felony.

HB 2465

Clarifying standards for competency to stand trial.

HB 2466

Prohibiting the adoption of sanctuary ordinances and resolutions by municipalities

Senate Bills

BillDescription

SB 319

Civil procedure dealing with limited action; venue

SB 320

Repealing the nonseverability clause

SB 321

Probate Action – KSA 59-618a

SB 322

Application and fee to appropriate surface water that otherwise leaves the state

SB 325

Allowing prosecutor access to child in need of care records

SB 327

Allowing hearsay at preliminary hearings

These bills were introduced this week and have been forwarded to the KBA Section listed for comment. You can also find this information on the KBA legislative webpage.

This week looks to be equally as busy with several committees looking at K-12 issues, Senate Ways & Means getting an update on revenue estimates, a new concealed carry proposal (HB 2440), two bills dealing with sex crimes and a bill prohibiting sanctuary cities in Kansas (HB 2466).

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2016 Legislature Session Opens

Posted By Joseph N. Molina III, Tuesday, January 12, 2016
Updated: Tuesday, January 12, 2016

Legislators returned on Monday to a budget shortfall, poor revenue numbers, a foster care controversy and four new House members. Rep. Ben Scott (D-Topeka); Rep. Henry Helgerson (D-Eastbourogh); Rep. Ken Rahjes (R-Agra); and Rep. Chuck Weber (R-Wichita) all took their seats after being appointed during the off season. Some housekeeping was in order as Republicans needed to replace Rep. Travis Couture-Lovelady as caucus chair. Rep. Dan Hawkins (Wichita) defeated Rep. J.R. Claeys (Salina) to gain the post.

The formalities out of the way, legislators can now focus on the State of the State address Tuesday at 5:30 pm. The SOS was moved up to avoid a conflict with the State of the Union address set for later this evening. Here legislators will learn of the path the governor is proposing to close the budget shortfall. Many are anticipating the governor staying the course by keeping the LLC income tax loophole open this session. Rep. Mark Hutton (R-Wichita) might have other ideas since he introduced HB 2444 that would close the non-wage income tax exemption and lower the sales tax on food. No hearing is set for this bill but it does send a message that all options are on the table. Legislators will also get a report from the government efficiency audit this week which should allow them to make cuts to help lessen the budget problem.

On the judiciary front, a hearing is set for HCR 5013 which would change the way we select justices in Kansas by expanding the nominating commission to 15, four elected by lawyers in Kansas, five appointed by the governor and six appointed by the legislator. Of the six legislative appointees, two will be made by the speaker, two by the Senate president and two by the minority party of each chamber. This is the third proposal to change how we pick justices in Kansas to be heard. The other two are HCR 5004 and HCR 5005: one would allow selection using a governor appoint model while the other would simple be direct partisan election.

Quick Take:

As far as committee meetings are concerned the Senate Judiciary Committee will meet Monday through Friday at 10:30 a.m., in room 346-S. Sen. Jeff King (R-Independence) continues as Senate Judiciary chair with Sen. Greg Smith (R-Overland Park) as vice-chair. The House Judiciary Committee will meet in the 112-N at 3:30 p.m., Monday through Thursday. Leadership for this committee remains the same with a chairman, Rep. John Barker (R-Abilene), a vice-chair Rep. Charles Macheers (R-Shawnee) and Rep. John Carmichael will sit as ranking minority leader. We do welcome Rep. Blake Carpenter (R-Derby) to the committee as he replaces former Rep. Couture-Lovelady. For other committee meeting times and locations, please access www.kslegislature.org/li

Another interesting bill is the LGBT protection bill, HB 2323. This bill, introduced by Rep. John Carmichael (D-Wichita) will be heard on Thursday this week. Controversy arose last session when Gov. Brownback eliminated protections from gender discrimination/sexual orientation in state employment. These protections were first put in place by Gov. Sebelius.

Finally, on Monday a committee met to discuss issues with foster care placement. Concerns were made about moving foster children out of their communities, foster parents profiting financially from these placements, and the ability of same sex couple to continue as foster parents. No recommendations were made, but this appears to be an issue worth monitoring.

The KBA will be live tweeting the State of the State address. To follow along please see KSBarLeg on Twitter. You can also find legislative information on the KBA website at www.ksbar.org.

 

Tags:  2016 Session 

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Welcome Back!

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

Next Monday, Jan. 11, the Kansas Legislature will open its doors. We will welcome a number of new faces to the Capitol due to off-season retirements and/or resignations. The biggest change is the resignation of Rep. Steve Brunk (R-Wichita) who chaired the House Fed. and State committee. In his place, Speaker Merrick appointed Rep. Jan Pauls (R-Hutchinson) to head the House Fed/State Committee. House Fed. and State will deal with LGBT, abortion and concealed carry issues.

Continuity reigns in both chamber’s judiciary committees. Rep. John Barker (R-Abilene) and Sen. Jeff King (R-Independence) both return as chairpersons. Both chambers will deal with a wide range of legal issues from judicial budget, court operations and technical legal matters. Look for a number of family law proposals to be debated.

However, the major issue continues to be the state budget. Legislators will reconvene facing another budget deficit. This time the red number is closer to $197 million. The governor has already transferred monies or cut some programs to ease the pain of legislators making those difficult choices but there could be a big move to reinstate income taxes on business. The Governor has already claimed he does not support that proposal and that no new taxes or further cuts will be required to meet all of the state’s fiscal responsibilities. How that lofty goal is accomplished remains to be seen and the blueprint for a balanced budget is sure to be included in next week’s state of the state address.

Besides focusing on the state budget the legislature may move quickly to shore up the judicial branch budget. As many of you are already aware the Kansas Supreme Court has struck down attempts by the legislature to statutorily mandate local control in judicial districts. The Kansas Supreme Court found these legislative attempts to be a violation of the separation of powers doctrine. As such, a portion of the judicial branch budget is now ineffective. This would not be as significant an issue but for a non-severability clause requiring the entire judicial budget be void should any part of the budget be found unconstitutional. It is this provision that may force quick action by the legislature to maintain a court budget. How that proceeds is of interest to many but no concrete proposals are available at this time.

There are a number of other major issues that could turn the 2016 legislative session on its head, see school block grants, Medicaid expansion, tax policy, but it is not beyond reason to see a truncated session due to elections in the fall. As such, it is very possible that no big issues are voted on besides the budget.

For information on legislators, bills and committee assignments please take a look at www.ksbar.org starting on Jan. 11. You can also find information at www.kslegislature.org. To get live updates during the session you can follow us on twitter @KansasBarLeg.

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Solomon vs. State of Kansas

Posted By Joseph N. Molina III, Tuesday, December 08, 2015
Updated: Tuesday, December 08, 2015

Yesterday, the Kansas Supreme Court decided they were not required to recuse themselves from the Solomon vs. State case. Solomon deals with the unconstitutional infringement of the Court’s "general administrative authority”. See; Article 3, section1 of Kansas Constitution. The issue on appeal is whether a 2014 Senate Bill (Sen Sub for HB 2338), which contains provisions allowing each judicial district to elect their chief judge and providing more flexibility for each judicial district regarding its budget, is a violation of the separation of powers doctrine.

The State appeals a district court verdict which found the law, Sen Sub for HB 2338, unconstitutional. The state made a motion requesting all seven Kansas Supreme Court Justices to recuse. The Kansas Supreme Court concluded that "no justice is compelled by the Kansas Code of Judicial Conduct or other law to recuse.” However, Chief Justice Lawton Nuss believed it best to "maintain the appearance of impartiality” decided to step away from the case. Chief Justice Nuss wrote "And when the written testimony to the House Appropriations Committee is considered with the rest of my personal involvement addressed in the court’s order, while I am not required to recuse in this case, I shall do so voluntarily.”

The other six justices will remain on the case.

See Order; http://www.kscourts.org/kansas-courts/supreme-court/Cases_of_interest/Cases/114573/Order120715.pdf

See also; http://www.kansas.com/news/politics-government/article48515185.html - Wichita Eagle;

See; http://www.sfgate.com/news/article/Kansas-chief-justice-won-t-hear-case-involving-6682241.php - SFGATE.com

See; http://www.kansascity.com/news/government-politics/article48520895.html.

Oral arguments have been scheduled for December 10th beginning at 9:00am. Each side will be allotted 20 minutes. All documents filed in this case are available on the court's website at http://www.kscourts.org/kansas-courts/supreme-court/Cases_of_interest/Cases/114573/default.asp

All Supreme Court oral arguments are webcast live through the Watch Supreme Court Live! link in the right-hand column of the Kansas judicial branch website at www.kscourts.org.

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Court Lawsuit, 2016 Session and Other Tidbits

Posted By Joseph N. Molina III, Tuesday, December 01, 2015
Updated: Tuesday, December 01, 2015

Last week, briefs were filed with the Kansas Supreme Court on a lawsuit challenging the constitutionality of allowing Kansas Judicial Districts to elect their chief judge. This case, Solomon vs. State, claims that the 2014 law violates the separation of power doctrine. The District Court in Shawnee County found the law unconstitutional. The state appeals that ruling.

Interestingly, the state would like the Kansas Supreme Court to recuse themselves from the case since the case deals with court functions. The court has made preliminary statements that they could rule on the case citing other jurisdictions doing the same and also pointing out the impracticality of appointing seven other judges to hear the issue. See: http://cjonline.com/news/2015-11-26/arguments-filed-judicial-selection-case.

Quick Take:

The Kansas Bar Association would like to thank all those involved in making the 8thAnnual Fall Legislative Conference a success. Attendees were treated to a fabulous CLE on the judicial budget by Chief Judge Dan Crietz and a very interesting discussion on the state budget presented by KLRD Principal Economist Chris Courtwirght. Many thanks to both of these gentlemen.

I would also like to thank Rep. Steven Becker, Rep. John Rubin and Rep. Boog Highberger, Rep. John Carmichael and Rep. Jim Ward for attending the conference. I greatly appreciate them taking time out to discuss the 2016 legislative session with us.

Finally the 8th Annual Fall Legislative Conference would not be possible without our wonderful and generous sponsors. They include:

    • Alderson, Alderson, Weiler, Conklin, Burghart & Crow, LLC;
    • John Peterson & Bill Brady/Capitol Strategies;
    • Kansas Bankers Association;
    • Polsinelli, PC;
    • Foulston Siefkin LLP;
    • Whitney B. Damron, P.A. and;
    • R. E. "Tuck" Duncan/Kansas Wine & Spirits Wholesalers Association

We are a mere six weeks from the beginning of the 2016 legislative session. Attached to this email is a 2016 session planner. This planner has bill deadlines, Pro Forma days and possible Veto Session details.

View the Planner 

Finally, Hawver’s News Company reported that Rep. Travis Coulture-Lovelady (R-Palco) has resigned his seat to become a multi-state lobbyist for the National Rifle Association. Rep. Coulture-Lovelady is a strong supporter of 2nd amendment rights and was a significant factor in gun right advances in Kansas during his tenure. Coulture-Lovelady sat on the House Judiciary Committee and introduced a resolution that would have repealed the current process for selecting Kansas Supreme Court Justices with a governor appoint/Senate confirm process. That resolution, HCR 5005, remains viable for the 2016 session. Coulture-Lovelady represented the 110th District which includes Norton, Rooks, Philips counties as well as portions of Ellis and Graham.

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8th Annual Fall KBA Legislative Conference

Posted By Joseph N. Molina III, Tuesday, September 22, 2015

8th Annual Fall KBA Legislative Conference

Tuesday, November 17, 2015

Kansas Law Center

1200 SW Harrison St., Topeka, KS 66612

All Kansas Lawyer/Legislators were invited to participate!

 

Attendance is free for all events

Schedule of Events

1:30 p.m. – 2:20 p.m.

1.0 free hour of CLE presented by Chief Judge Daniel Creitz

 

2:30 p.m. – 4:00 p.m.

Legislative Conference

Featuring Chris Courtwright, Principal Economist, Kansas Legislative Research Department

Followed by comments from Kansas Lawyer/Legislators

 

4:00 p.m. – 5:30 p.m.

Cocktail Reception

 

Please RSVP by November 13 for each event you wish to attend by contacting Joseph N. Molina, KBA director of governmental affairs, at 785) 234-5696 or at jmolina@ksbar.org.

Space is Limited

 

 

Special thanks and appreciation to our reception hosts:
John Peterson & Bill Brady/Capitol Strategies
Kansas Bankers Association
Polsinelli PC
Whitney Damron P.A.
R.E. "Tuck" Duncan/ Kansas Wine & Spirits Wholesalers Association
Foulston Siefkin LLP

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Court Opinions

Posted By Joseph N. Molina III, Tuesday, September 08, 2015

Over the last few weeks the Kansas judiciary has issued opinions that will have significantly impact the legal community. These opinions come from all levels of the judiciary and deal with court funding, separation of powers, legal malpractice, and elected offices.

Solomon v. Kansas, 20115-CV156

The most publicized opinion was issued last Wednesday when Shawnee County District Court Judge Larry Hendricks struck down a 2014 law that changed how judicial districts selected their chief judge. This law required judicial districts to elect their chief judge. Prior to this change, the chief justice of the Kansas Supreme Court appointed these positions. Hendricks held that this change violated the state’s separation of powers doctrine since the Kansas Supreme Court has "administrative authority” over the courts. Muddying the waters is a 2015 law tying this administrative change to judicial funding through a "nonseverability clause.” By finding the administrative change unconstitutional court funding through 2017 would be declared null and void. At this point a lawsuit has been filed in Shawnee County challenging the non-severability clause. In addition, Hendricks issued a stay of his ruling pending an appeal by the state.

See http://www.therepublic.com/view/story/27c6a605d63143a497ec0210c856c117/KS--Judicial-Funding-Kansas; see also http://www.kansascity.com/news/government-politics/article33681873.html; and http://www2.ljworld.com/news/2015/sep/02/kansas-judge-rejects-policy-imposed-courts-lawmake/.

Kansas Attorney General Derek Schmidt will ask the court to consider this issue, see https://ag.ks.gov/media-center/news-releases/2015/09/02/ag-schmidt-statement-on-solomon-v.-kansas-ruling.

How this shakes out is yet to be determined but one could guess this will go all the way to the Kansas Supreme Court. How the court handles it from there given the issue directly impacts judicial funding will be interesting to see.

Judicial Ethics Opinion 183

The Kansas Judicial Ethics Advisory Panel issued Op. 183 in late August. While short, this opinion requires that judges recuse themselves from cases where one lawyer is also a county commissioner. The opinion states:

"we are of the opinion that the judge’s impartiality might reasonable be questioned if one of the attorneys is one of only three votes possible to determine the budget for the district court of the county and the judge should disqualify himself or herself and hear no cases involving the attorney who is a county commissioner”

This opinion appears limited in scope to only include lawyers who serve on three panel county commissions. However, less than ten (10) county commissions in Kansas are larger than three-persons. Furthermore, this opinion could be expanded to include other elected offices that have authority to set judicial funding levels.

Mashaney v. Board of Indigents’ Defense Services, No. 1089,353

Finally, on August 28 the Kansas Supreme Court issued its ruling in Mashaney v. Board of Indigents’ Defense Services. The issue here is whether a defendant who pleads to a different criminal penalty after having his original convictions reversed under a KSA 60-1507 motion can pursue legal malpractice claims without first proving actual innocence.

The Kansas Supreme Court held that proving actual innocence is not a barrier to claims of legal malpractice and therefore allowed claims against the individual attorneys to proceed to trial.

It is important to note the Kansas Supreme Court went out of their way, as did Justice Stegall, to point out that this opinion does not and should not be viewed as relieving the criminal defendant from proving his actual guilt was not the actual or proximate cause for his injuries. This is up to the jury to decide in the subsequent malpractice case.

While this case continues at the district court level, attorneys should be aware of the new standard involved in legal malpractice cases that evolved from ineffective assistance of counsel cases.

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