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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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Halfway Home!

Posted By Joseph N. Molina III, Tuesday, March 4, 2014

At midnight tonight the Kansas legislature will be halfway to concluding its work for the 2014 session. Turnaround is a very big deadline that allows legislators and lobbyist to take a breath and evaluate the current state of the Capitol. Thus far, 2014 has seen some very controversial items make national news. It started with the proposal to criminalize surrogacy, moved on to attacks on sustainability bench marks, Common Core standards took significant heat, corporal punishment reared its head, and the proponents of religious freedom passed an anti-gay bill in the Kansas House. This last item has gone nationwide with several other states taking up the cause only to realize it was a publicity nightmare. Arizona, Mississippi, Louisiana, Texas, and Kansas all took turns trying to push the religious freedom bill. Arizona got the closest when Gov. Jan Brewer vetoed the legislation on Wednesday. However, this is an issue that has the public paying attention, which means it will be around probably until Gannon is released.

 

These controversial bills and their current status can be found below:

With so much of the airtime being eaten up with these controversial bills, not many actually realized the number of bills affecting the Kansas Judicial Branch. The majority came from the Senate and Sen. Jeff King (R-Independence). These judicial branch proposals ranged from funding issues, to ruling deadlines, to local control by chief judges, and to prohibitions against judicial branch lobbyist. The number of bills is only dwarfed by their variety.

 

For more information on these judicial branch bills please see the following:

 

HB 2303 – Non-judicial personnel 2 percent market level pay increase

 

This bill places an additional fee on DUI license reinstatements. This additional fee will be used to pay for interlock devices and for pay increases for nonjudicial personnel. This will bring them closer to private sector employee pay. Gov. Brownback signed this bill into law on February 3, 2014.

 

SB 313 – Docket fee increases

 

This bill increases the docket fee on certain chapter 60 cases by $12. It also imposes a new fee of $195 for motions for summary judgment. Part of these new fees will be used to complete the E-Court project and provide ongoing maintenance for e-courts. The remainder can be used to fund general judicial branch functions. It is estimated that this bill will generate $6.2 million and $3.1 million of this will be placed in a lock box for e-courts. The remainder would go to court operations.

 

SB 287 – Jurisdiction of Magistrate Judges

This bill would allow magistrate judges to hear more cases, including uncontested divorces and certain limited action cases when both parties consent. The bill also allows for magistrate jury trial to be appealed to the Kansas Court of Appeals instead of the district court. This bill passed the Senate 38-1.

 

SB 288 – Debts to the Court

This bill allows collection agents and attorneys to provide services to the court to collect on orders of restitution. The docket fee normally associated with these types of limited actions shall be waived in these instances. This bill passed the Senate 39-1.

 

Senate Sub for HB 2072 - Time limits for decisions by courts

This bill imposes time limits for district, Court of Appeals, and the Kansas Supreme Court. The time period to issue decisions runs from 120 to 180 days. If the decision is not entered within 190 days all counsel SHALL file a joint request to the court that the decision be issued without delay. If the court fails to issue a decision after the joint motion all parties shall ask for an intended date of decision. Senate Sub for HB 2070 was passed 32-7.

 

SB 364 – District chief judge authority to expend funds.

 

This bill allows the allocation of the budget for each judicial district to the chief judge of that district. Sen. King introduced this bill as a way to make more efficient use of judicial dollars. KDJA, KBA, and some county court employee groups opposed the bill as drafted and as amended by Sen. King.

 

SB 365 – Chief Judge of judicial district elected by district court judges.

 

Simply put this bill requires that district judges in each judicial district and the judges of the court of appeals elect their chief judge.

 

Four other bills aimed at the judicial branch failed to make the turnaround deadline. They include:

HB 2016 - Repealing K.S.A. 21-105; one judge per county

 

Rep. Lance Kinzer has appointed a subcommittee to study the one judge per county issue. The subcommittee has not provided a report of their discussions.

 

Finally, here are the remaining judicial branch bills. They include:

There were also a number of family law bills that were important to the KBA. They include the following:

The KBA opposed three family law bills. None of these bills made it past the deadline.

The KBA supported HB 2568, which was a continuation by the Kansas judicial council recodification of the domestic code. HB 2568 passed the House on Thursday, February 27.

 

The KBA introduced two bills this session. Both of them were given hearings and passed out of the Kansas House earlier this week. They include:

 

HB 2398 - Amending the Kansas Revised Limited Liability Act

 

The Kansas Bar Association Legislative Committee organized a subcommittee to revise the Kansas Revised Limited Liability Act (KRLLCA). The subcommittee, comprised of Bill Quick, Prof. Webb Hecker, Bill Matthews, Joe Jarvis, Joe McLean, and Ryan Kriegshauser, worked with the Kansas Secretary of State’s Office to determine which statutes dealt need to be updated to conform to the Delaware code. The subcommittee also identified specific statutes that required revision due to recent case law.

 

HB 2444 – Spendthrift Trusts

 

HB 2444 is a bill the KBA originally introduced in 2010. The bill was referred to the Judicial Council for further study and they introduced their version in 2011. Both bills died in committee. After reevaluating the issue the KBA Real Estate, probate and Trust Section recommended the original 2010 version be reintroduced.

 

The KBA opposed two other bills with mixed results. The KBA opposed SB 311 dealing with noneconomic damages and HB 2650 dealing with Benefit corporations.

 

SB 311 – Increasing the Cap on Non-Economic Damages

 

This bill increases the cap on non-economic damages to $350,000 by 2022. The tradeoff is the use of collateral source evidence and a shift to the federal expert witness standard. The KBA has policies opposing both of these changes. It is important to note that the KBA has no position on the cap on noneconomic damages. The KBA only opposed the collateral source issue and the Daubertissue.

 

HB 2650 – Benefit corporations

 

This bill was introduced by a national group called BLABS. The premise is to create a new business entity whose mission is to be good community neighbors while making a profit. This bill would allow corporations to avoid the business judgment rule when they act in an altruistic fashion rather than for pure profit. The KBA opposed this bill because we have a subcommittee that will revise the entire general corporation code. The subcommittee would like to review this issue and apply a Kansas specific answer. The subcommittee is comprised of Bill Quick, Bill Matthews, Joe Jarvis, Bob Alderson, Prof. Webb Hecker, Bill Wood, and Virginia Harper Ho.

 

HB 2721 - enacting the business entity standard treatment act

 

This bills was introduced by the Kansas Secretary of State’s Office as a way to unify all filing aspects of business entities in Kansas. The KBA is reviewing this bill. This bill failed to pass by the turnaround deadline but was "blessed” when it was referred to the Committee on Taxation, which is an exempt committee. This is a drastic overhaul which should be carefully studied.

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Both Chambers Fully Engaged

Posted By Joseph N. Molina III, Tuesday, February 25, 2014
With bill introductions left to exempt committees and hearings winding down, both chambers are working through a deluge of bills to avoid the drop-dead date of turnaround. All bills that fail to make it out by Friday, February 28 are dead. It is also important to note that this is an even numbered year so no bills will be "held over” to 2015. All bills that miss the cut off will need to be reintroduced next January.

 

There has been some hallway talk about a truncated session. Rep. Davis called for a 70-day session to avoid the many embarrassing bills that surfaced the past few weeks. This does not seem to be a viable option since Speaker Merrick has refocused on economics and has some serious work left to do. See http://www.kansas.com/2014/02/21/3303060/democratic-leader-calls-for-ending.html.

 

With the idea of a short session behind us there remain a number of big issues looming. Gannon comes to mind, but there is still no timetable for its release. The Capitol crowd gets a little antsier each passing week, and some are of the opinion we could be waiting till August. How this plays out remains to be seen.

 

Both of the KBA’s bills were debated on the House Floor this week. Rep. Bruchman carried HB 2398, concerning KS LLC Act, and Rep. Carmichael carried HB 2444, spend thrift trust. I am happy to report that both were passed on final action, 120-1 and 121-0, respectively. We will now work with the Senate to schedule hearings on both bills.

 

In addition, the KBA provided testimony is opposition to SB 364, allowing the chief judge more discretion in personnel matters. This bill was coupled with SB 365, allowing the district judges to elect the chief judge. Both bills may be worked in the coming days. The Kansas District Judges Association is opposed to both issues. You can find testimony at http://www.ksbar.org/?judicialservices. The Supreme Court is also a little concerned about SB 364 as described in this article from Topeka Capital-Journal. Chief Justice opposes bill to diffuse budget authority, http://cjonline.com/news/2014-02-17/chief-justice-opposes-bill-diffuse-budget-authority.

 

The KBA provided testimony to oppose HB 2650, benefit corporations. This bill was introduced by a national group called BLABS. The KBA has a subcommittee discussing a revision of the General Corporation Code. It would be preferable to weave this new concept into the revised code rather than have a standalone statute that may not fit. Testimony on HB 2650 will be online this coming week.

Quick Take

This past week was quite the tumultuous affair for some Kansas legislators. A number continue to feel the wrath of voting for HB 2453, the Religious Freedom Act, while one Kansas House Democrat caught significant heat for the spanking bill, HB 2699. Both of these bills helped Kansas make "The Daily Show with Jon Stewart."

Local newspapers also chimed in on both of these fiascos.

For spanking news:

It should also be noted that the morass of bills aimed at domestic relation issues have failed to move forward in the legislative process. The KBA testified against a number of these bills listed below, all of which should die by Friday. These bills are as follows:

  • SB 302, Rending surrogate parenting contracts unenforceable and creating an unclassified misdemeanor
  • HB 2450, Change in terminology; "best interests of the child" to "least detrimental alternative for the child
  • HB 2462, Domestic relations; child custody. residency and parenting plans; child support
  • HB 2558, Domestic relations; prohibition of case management process
  • HB 2604, Domestic relations, divorce, division of property, maintenance
Looking forward, the KBA supported HB 2568, which was introduced by the Kansas Judicial Council. Several years back the Judicial Council did a reorganization of all the domestic laws by combining three chapters into one. HB 2568 is a continuation of the project. The KBA supported the initial reorganization and all of the clean-up efforts introduced by the Family Law Advisory Council.

 

This last week before turnaround is going to be very busy with 30 to 40 bills working their way through the process. Those on the fence will look to exempt committees for a little "blessing” but the Speaker has indicated he will narrow his focus to keep the train on the tracks the remainder of the session. The Senate side could work less than 10 days after turnaround before adjourning. How those days are calculated is the big questions. Nevertheless, the Senate appears to be in a better position as it reaches the first significant deadline of the 2014 session.

Tags:  Daily Show  Gannon  House  Kansas Judicial Council  Senate  Supreme Court 

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Rush to Turnaround

Posted By Joseph N. Molina III, Tuesday, February 18, 2014

Last Friday marked the last day for introduction of bills into nonexempt committees. This means the majority of bills that had a chance at passing this session are already in a committee awaiting a hearing. How far they proceed will determine the glut of other bills ahead of them in priority for each committee. The committees have until Friday, February 28 to get bills of out their house of origin or they fall victim to turnaround and die. Since this is an outbound year, those bills failing to make this critical date will not be held over. So the move is on and committees are in full gear.

 

As stated above, the Kansas Legislature will reach its halfway point of the 2014 session on Saturday, March 1 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 it is considered dead for the remainder of the session. However, several exempt committees will 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.

 

The KBA is on track to move both of their bills out of the House since HB 2398, dealing with the Kansas Limited Liability Company Act, and HB 2444, dealing with spendthrift trusts, were recommended favorably by the House Judiciary Committee. Reps. Rob Bruchman and John Carmichael are tapped to carry theses bills on the House floor later this week or next.

 

Sen. Jeff King’s bills, based off the Blue Ribbon Commission Report, also appear to be on track for passage. Each was approved by the Senate Judiciary Committee and is on the Senate Calendar for debate. These bills include:

*Special note SB 289 was changed to Sub. for HB 2070

 

In addition, SB 311 made its way out of the Senate Judiciary Committee. This was not unexpected but will require more effort to defeat on the House side. The KBA testified against SB 311, the non-economic cap bill. This bill increases the cap on non-economic damages but allows evidence of collateral source and changes expert witness testimony rules to follow the federal model.

 

The KBA testified against several bills over the last five days and they include: two apology bills in House Judiciary, one case management bill in Children and Seniors, and two Judicial Branch reorganization efforts in Senate Judiciary. These bills are as flows:

You can view the written testimony online at http://www.ksbar.org/?2014testimony.

 

Looking forward, the KBA will support HB 2568 introduced by the Kansas Judicial Council. Several years back the Judicial Council did a reorganization of all the domestic laws by combining three chapters into one. HB 2568 is a continuation of the project. The KBA supported the initial reorganization and all of the clean-up efforts introduced by the Family Law Advisory Council.


Also opposed was HB 2650, benefit corporations. The Kansas Corporate, Banking and Business Section was working on a revision of the entire corporation code. This revision will look at the need for benefit corporations. The Section met with the drafters of HB 2650, via conference call, this past summer to indicate our plan to update the corporation code.

 

The Section will also review HB 2721, enacting the business entity standard treatment act. This bill, introduced by the Kansas Secretary of State’s Office, attempts to harmonize the business filing regulation in Kansas.

 

Finally, there are several bills that should be brought to your attention. They include four family law bills, two elder law bills, and a bill dealing with competency.

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Snow days caused log jam

Posted By Joseph N. Molina III, Tuesday, February 11, 2014

Snow was the big story for the first week in February; the Capitol was closed last Tuesday and Wednesday, along with most of Kansas. This caused a backlog of some very interesting and important bills. The Senate and House Judiciary committees worked through the glut of bills with only a few being pushed!

 

Sen. Jeff King (R-Independence) ran four of his bills based off the Blue Ribbon Commission Report. However, the snow caused him to break them up and the last hearing on SB 289 didn’t take place until Friday morning. Support for these proposals was strong with the Kansas District Judges Association coming out in full force for the docket fee increase bill, SB 313. King had a budget staffer update the committee on the projected amount of money that SB 313 would raise. It is estimated that the new increases will generate between $4.5-$6 million. To hit this mark, filing fees will have to remain steady and the number of summary judgment motions (which is hard to track) will have to mirror the numbers in those counties that do keep track. The remaining bills that got hearings included:

For more insight, please see:

The KBA testified against SB 311, the non-economic cap bill. This bill increases the cap on non-economic damages but allows evidence of collateral source and changes expert witness testimony rules to follow the federal model.

 

The KBA also testified in support of HB 2444, a spendthrift trust bill. This bill allowed a creditor to reach assets in a trust in the trust did not set an ascertainable standard for distribution, such as health, education, or maintenance expenses.

 

Looking at upcoming bills, the KBA will be testifying against two apology bills in the House Judiciary. We have seen these bills in the past but this is a second or actually third bite at the apple. These bills are as follows:

The KBA will also be ready to testify on a bill out of the Kansas Judicial Council. Several years back the Judicial Council did a reorganization of all the domestic laws by combining three chapters into one. HB 2568 is a continuation of the project. The KBA supported the initial reorganization and all of the clean-up efforts introduced by the Family Law Advisory Council. Ron Nelson and the KBA Family Law Section has recommended continued support. The bill can be found here:

 

Finally, there are several bills that should be brought to your attention. They include four family law bills, two elder law bills, and a bill dealing with competency.

This does not include the conceptual bills introduced late this week. The first, HB 2583, which would prohibit state funds being used to hire a lobbyist for the Judicial Branch. The language does include funding going to district judges as well. However, I am not sure they could keep the KDJA out since they pay for their representation out of their own pocket. The other bill was conceptual in nature and it would eliminate "incompatibility” as a reason to seek a divorce. Rep. Keith Esau introduced this bill, although he stated that he did not write it. He would not divulge who drafted the language.

 

The next deadline is Friday, February 14, which closes the door on introduction of new bills. See http://www.kslegislature.org/li/m/pdf/senate_deadlines_calendar.pdf.

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Both Chambers in Full Swing

Posted By Joseph N. Molina III, Monday, February 3, 2014

Week three has been the busiest of the session thus far. The Senate Judiciary Committee heard a number of bills and worked most of the criminal bills that increased penalties. Chairman Jeff King stated that the committee will slow down a bit now that a lot of the issues overlapping from the Special Session have been discussed. This indicates that there is little likelihood that the death penalty repeal issue will be worked this session.

 

The House Judiciary Committee had an equally busy week. The House focused on trespass laws, interference with judicial process, and a very controversial bill dealing with the Fourth Amendment. The KBA had a hearing on HB 2398 dealing with amendments to the Kansas LLC Act. KU Law Professor Webb Hecker presented testimony for the KBA. The bill was well received and should be move forward in the legislative process. There is a strong chance that Rep. Lance Kinzer will introduce an amendment based on a recent Court of Appeals case. To view testimony on this bill, please visit http://www.ksbar.org/?2014testimony.

 

In addition, the KBA testified against a bill that would have removed the "best interest of the child” standard. This bill, HB 2450, would have created a new standard, "least detrimental alternative.” The KBA Family Law Committee recommended the KBA oppose the bill. The KBA received numerous comments regarding this bill. The KBA worked closely with the Wichita Bar Association, Wichita Family Law Committee, CASA, and several individual family lawyers. Also offering testimony was the Office of Judicial Administration, Department of Children and Families, and Judge Dan Cahill. To view testimony on this bill, please visit http://www.ksbar.org/?2014testimony.

 

The supporters of HB 2450 provided anecdotal evidence of poor enforcement of CINC and mandatory reporters. The committee would like to focus on that issue and leave the best interest of the family standard alone. The Committee on Children and Seniors took no action.

 

The KBA also monitored SB 302, which criminalizes surrogacy contracts. This bill was the most controversial of the week. The proponents believed that paid surrogacy contracts commercialized the process and turned birth mothers into factory farms. The Catholic Church also provided supporting testimony for SB 302. Opponents of this bill brought their children conceived through surrogacy or IVF to put a face to a cause. The most powerful statement and early front runner for quote of the year was made by an ob-gyn who stated that if passed SB 302 would have criminalized the birth of Jesus. The next morning the chair, Sen. Mary Pilcher-Cook (R-Shawnee), killed the bill.

Quick Take

Week three saw some very controversial issues. Besides the surrogacy bill, House Judiciary debated HB 2421, the Fourth Amendment Preservation and Protection Act. This bill, introduced by Rep. Brett Hildabrand (R- Shawnee), would have limited the tools law enforcement could use to investigate crime. The Kansas County and District Attorney Association opposed this bill. In addition, the House Federal and State Affairs Committee heard HB 2453, which protected religious freedom regarding marriage. The intent of the bill was to allow individuals with a strongly held religious belief the ability to refuse services to certain individuals. The Fed/State Committee also heard the HB 2473, which would prohibit cities and counties from regulation firearms. Rep. Jim Howell (R-Derby) introduced the bill that includes a provision restricting local governments from holding gun buyback programs if the weapon would be destroyed. The local government could resell the weapon or transfer to law enforcement but removing the gun from circulation was prohibited. See http://www2.ljworld.com/news/2014/jan/31/legislator-questions-whether-local-government-lobb/.

There are a number of bills up for hearing next week that should be of interest to the Judicial Branch. They include:

 

SB 287

District magistrate judges; jurisdiction; cases on the record; appeals

SB 288

Relating to restitution or collection of debts owed to the court

SB 289

Time limits for decisions by courts

SB 290

Use of video conferencing for arraignment hearings in criminal cases

SB 313

Increasing various docket fees and creating new docket fees

 

These bills were introduced by Sen. Jeff King. King believes these bills will make the Judicial Branch more efficient.

 

The KBA will also testify against SB 311. This bill increases the cap on non-economic damages but allows evidence of collateral source and changes expert witness testimony rules to follow the federal model. The KBA opposes those two provisions. SB 311 is set for hearing at 10:30 a.m. on Thursday, February 6.

 

SB 311

Increasing the noneconomic damages cap; changing rules related to evidence of collateral source benefits and expert evidence

 

The bills of interest in the House include:

 

HB 2444

Spendthrift Trust

HB 2446

District courts; court trustee operations fund.

 

The KBA introduced HB 2444. HB 2444 is set for hearing at 3:30 p.m. on Thursday, February 6. Tim O’Sullivan will represent the KBA.

 

The KBA will also support HB 2446, which addresses an issue in the 2nd Judicial District. The 2nd Judicial District is comprised of Jefferson, Jackson, Wabaunsee, and Pottawatomie counties. The 2nd Judicial District closed their trustee office in 1997. This left a residual balance in the operating fund of approximately $36,000. HB 2446 would allow the chief judge to authorize expenditures from the fund. It is important to note that this bill would only give a chief judge authority to use those court trustee funds when the office of court trustees has ceased to exist.

 

The following were introduced last week. They can also be found each of the sections’ webpages.

 

SB 319

Protecting surface property owners' rights

SB 323

Amending the duration of a conservation easement

SB 324

Judicial branch supplemental appropriations for FV 2015, judicial operations

SB 329

Clarifying court orders relating to parents in juvenile offender cases

HB 2517

Relating to the prohibition on wage garnishment for assigned accounts

HB 2523

Expression of apology by health care provider not admissible as evidence in a malpractice case

HB 2528

Judicial branch supplemental appropriation for fiscal year 2015, judiciary operations

 

Finally, we can expect a number of bills concerning case managers to be discussed in the coming weeks as well as a new constitutional amendment to change how we pick Kansas Supreme Court justices. This bill was introduced by Rep. Scott Schwab in the House Tax Committee. When these bills are made public I will include them in items to discuss.

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State of the Judiciary Week

Posted By Joseph N. Molina III, Tuesday, January 28, 2014

Week two of the Kansas legislative session was an extra short week since the Capitol was closed on Monday to observe Martin Luther King Day. The week was shortened even further when the majority of legislators attended the funeral of Rep. Marvin Kleeb’s wife, who passed away after a long battle with cancer. Our condolences to Rep. Kleeb and his family. Nevertheless, it was still quite busy.

The focal point of the week was Chief Lawton Nuss’ State of the Judiciary address. If interested, the entire address is available at http://bit.ly/2014StateoftheJudiciary.

 

The chief justice made his address from the Kansas Supreme Courtroom. It was quite the affair with a large number of legislators in attendance. Nuss focused the majority of his speech on the judicial budget. He thanked legislators for passing HB 2303 earlier in the day. HB 2303 allows the collection of a DUI license reinstatement fee that will be used to bring non-judicial personnel salaries up to market level. Even with this issue behind, the FY 2015 judicial budget looks bleak. The judicial branch still faces an $8.5 million shortfall beginning in July. Nuss mentioned the work of the Court Budget Advisory Council, which made several recommendations, one of which was a lengthy furlough and closing of courthouses. Seehttp://www.kscourts.org/pdf/CBAC-Report-12132013.pdf.

 

Overall the address appeared to be effective, but I am not sure how legislators will react to the underfunded issue having just approved a pay raise for court employees. It should also be noted that this good natured and well-received address will fade very quickly should the Supreme Court require additional funding in the Gannon case. For more insight, please seehttp://www.kansas.com/2014/01/23/3243457/eagle-editorial-state-courts-are.html.

 

When open, the Capitol was quite busy this week with a number of hearings and rallies going on. The biggest rally was the held on Wednesday, January 22when Kansans for Life marked the 41stanniversary of Roe v. Wade. This is of interest to the KBA because the head of the organization stated that their top priority was to change the judicial selection method; Kansans for Life support a Federal Model approach. The KBA was brought into this issue when they stated that the KBA controlled the selection process. For more information on this issue please seehttp://cjonline.com/news/2014-01-22/anti-abortion-group-seeks-supreme-court-changes.

 

This erroneous claim that the KBA is involved with, or controls, the merit selection process has been going around for some time. Gov. Sam Brownback made a similar statement when he signed HB 2019 into law last session. The KBA is making every effort to correct those who make these false claims as quickly as possible.

 

The KBA was allowed its first hearing of the session when HB 2398 was heard in House Judiciary Committee. HB 2398 is a two-year project that revised the entire Kansas Limited Liability Company Act (KRLLCA). Prof. Webb Hecker represented the KBA; and the hearing went quite well. The committee should take up this issue soon.

 

You should pay special attention next week to a number of bills aimed at the judicial branch. They include:

 

SB 287

District magistrate judges; jurisdiction; cases on the record; appeals

SB 288

Relating to restitution or collection of debts owed to the court

SB 289

Time limits for decisions by courts

SB 290

Use of video conferencing for arraignment hearings in criminal cases

 

 

 

 

 

 These bills were introduced by Sen. Jeff King, and he believes these will make the judicial branch more efficient. Hearings were tentatively set for next week but they were pulled off the calendar on Monday. The KBA will be tracking these issues on our website at http://www.ksbar.org/judicialservices.

 

Finally, the KBA is currently monitoring the following bills:

 

HB2450

Change in terminology; "best interests of the child" to "least detrimental alternative for the child"

Family

Oppose

HB 2462

Domestic relations; child custody. residency and parenting plans; child support

Family

Oppose

HB 2463

Creating civil liability for acts of terrorism; forfeiture of property related to violations of certain criminal act

Litigation

Monitor

HB 2466

Administrative rules and regulations; service of order or notice

Admin Law

Monitor

HB 2477

Amending the crime of aggravated battery, concerning strangulation

Criminal

Monitor

HB 2478

Venue for crimes committed with an electronic device

Criminal

Monitor

 

The KBA plans on providing written remarks on HB 2450, which would remove the term "best interest of the child.” The KBA has heard from a number of groups and individuals who feel this is a very poor policy change. A hearing on this bill is scheduled at 1:30 p.m. on Thursday, January 30 in the Committee on Children and Seniors.

 

For a full listing of bills being monitored please follow our 2014 Bill tracking chart http://www.ksbar.org/?bill_tracking.


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Session Starts with Death Penalty Hearing and State of the State

Posted By Joseph N. Molina III, Tuesday, January 21, 2014

As you are aware the Kansas Legislature returned this past Monday, January 13. Traditionally the first week is a rather uneventful week. The primary goal of legislators and committees is to acquaint themselves with chamber rules, committee assignments, and new staff members. However, this week Senate Judiciary Committee hit the ground running with a hearing on SB 126, the repeal of the death penalty. An interesting fact with this bill, if passed it would prohibit any future death penalty cases; those already on death row would not be affected.

 

The hearing was very well attended with more than 20 individuals testifying or providing written testimony. The proponents of repeal seem to have an uphill battle moving forward. Sen. Greg Smith made an impassioned plea on behalf of his murdered daughter Kelsey Smith to retain the death penalty in Kansas. The hearing on death penalty process and timing continued on Tuesday, January 21.

 

For more insight, please see http://cjonline.com/news/state/2014-01-16/senate-panel-delves-death-penalty-repeal-bill.

 

The other big news was Gov. Sam Brownback’s State of the State address. The take away from his address was a very pointed reference about the school finance case and what the Kansas Supreme Court should do. The governor stated:

 

One of the ironies, though, of our age is that government has become omnipresent, yet the people have never felt more distant from it. Too many decisions are made by unaccountable, opaque institutions. Elected officials are sometimes complicit in this transference of power, because it removes them from accountability. So let's be clear. On the number one item in the state budget – education – the Constitution empowers the Legislature – the people's representatives – to fund our schools. This is the people’s business, done by the people’s house through the wonderfully untidy – but open for all to see – business of appropriations. Let us resolve that our schools remain open and are not closed by the courts or anyone else.

 

This quote was the most discussed part of the governor’s speech. It was widely covered as a swipe at the Kansas Supreme Court. Below are a few articles covering the State of the State address.

Quick Take

Sen. Jay Emler (R-Lindsborg) was confirmed by the Kansas Senate on last week to a four-year term at the Kansas Corporation Commission. Emler is an attorney with significant experience in energy issues. The KBA congratulates Emler on his new position.

Next week looks to be very busy with Chief Justice Lawton Nuss giving the State of the Judiciary address at 12:30 p.m. on Wednesday, January 22. A live webcast of the address is available by following the Watch Supreme Court Live! link in the right-hand column of the Kansas Judicial Branch website.

 

The KBA will have its first hearing of the session when HB 2398, dealing with the Revised LLC Act, is heard at 3:30 p.m. on Thursday, January 23. KBA BOG member Bill Quick is on the team that revised the LLC Act and he will be attending the hearing.

 

Finally the KBA is currently monitoring the following bills:

 

SB 248

Victim notification prior to release of certain inmates

Criminal

Monitor

SB 250

Sentencing of certain persons to mandatory minimum term of imprisonment of 50 years ("hard 50")

Criminal

Monitor

SB 252

Special sentencing rule for attempt to commit capital murder

Criminal

Monitor

SB 256

Attorney general; costs in criminal appeals

Criminal

Monitor

SB 257

Appellate rules for death penalty cases and rules for motions attacking sentences

Criminal

Monitor

SB 258

Amending the juvenile statute of limitations to match adult time limitations for sex crimes

Criminal

Monitor

SB 261

Uniform trust code changes concerning an anti-lapse statute and creditor claims against settlors

Probate and Trust

Monitor

SB 269

Rules of evidence; clarifying application of timely objection rule

Criminal

Monitor

SB 270

Criminal procedure; mental status defenses; notice and procedure

Criminal

Monitor

SB 271

Amending the Kansas Medicaid fraud control act

Criminal

Monitor

HB 2421

Enacting the fourth amendment preservation and protection act of 2014

 

Monitor

HB 2423

Sentencing of certain sex offenders to mandatory minimum term of imprisonment of 50 years or imprisonment for life without parole ("Jessica's law")

Criminal

Monitor

HB 2433

Relating to the Kansas uniform securities act

Criminal

Monitor

HB 2444

Spendthrift Trust

Probate

SUPPORT

HB 2450

Change in terminology; "best interests of the child" to "least detrimental alternative for the child"

Family

Monitor

 

These bills were introduced last week. This information can be found on each of the Sections’ webpages. For instance, you can find the criminal law proposals online at https://ksbar.site-ym.com/members/group_content_view.asp?group=110849&id=336266.

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2014 Legislature Opens

Posted By Joseph N. Molina III, Tuesday, January 14, 2014
Updated: Tuesday, January 14, 2014

Kansas legislators returned to work yesterday with a very light agenda for the week. Not much is scheduled in the way of hearings, the Senate Judiciary Committee being the sole exception. The Senate Judiciary will open with a very frank discussion/hearing on the Kansas Death Penalty. This hearing is set for 10:30 a.m. on Thursday, January 16 in the Old Supreme Court Room. There is also a push to make other felony crimes Hard 50 eligible. The Senate Judiciary will also take this issue on this week. See http://www.kslegislature.org/li/b2013_14/chamber/documents/daily_calendar_senate_20140109133147.pdf.

 

The House Judiciary Committee is set for a very quiet start as they only meet once this week to introduce committee members and staff. I suspect this will be the only light week, as a number of bills come over from the Senate they will need to be discussed. See http://www.kslegislature.org/li/b2013_14/chamber/documents/daily_calendar_house_20140110115457.pdf.

 

This slow start will quickly reverse course after the governor’s State of the State address on Wednesday, January 15. However, the gorilla in the room remains the school finance case. The ruling should be coming down any day now with some believing it should have been made public last week. Until then, not much can be accomplished. So we wait.

Quick Take

As far as committee meetings are concerned the Senate Judiciary Committee will meet at 10:30 a.m., Monday through Friday 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 at 3:30 p.m., Monday through Thursday in room 112-N. This committee is again chaired by Rep. Lance Kinzer (R-Olathe) with Rep. Rob Bruchman (R-Overland Park) as vice chair. For other committee meeting times and locations, please visit www.kslegislature.org/li.

Chief Justice Lawton Nuss will give the State of the Judiciary address at 2:30 p.m. on Wednesday, January 22. This address is historic since it will be the first in the state’s history given from the Kansas Supreme Courtroom.

 

The public can access a live webcast of the address by following the Watch Supreme Court Live! link in the right-hand column of the Kansas Judicial Branch website at www.kscourts.org. The address will be recorded for viewing afterward by anyone unable to attend in person or watch it live online.

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2014 Session Approaches

Posted By Joseph N. Molina III, Wednesday, January 8, 2014
Updated: Wednesday, January 8, 2014

Quick Take:

The KBA congratulates Caleb Stegall, former chief legal counsel for Gov. Brownback, for being officially sworn-in to the Kansas Court of Appeals last Friday. Stegall becomes the 14th Court of Appeal’s judge currently on the bench. For years the 14th seat remained vacant due to budget constraints. The swearing in was held at the Kansas Judicial Center and attended by a very influential crowd. The governor, secretary of state, and others were in attendance. For more information please see
http://www.kscourts.org/Kansas-Courts/General-Information/news-releases-2013.asp#123013

The 2014 Kansas Legislature is set to open on Monday, January 13. The official opening will start at 2 p.m. with the swearing in of House and Senate members. The big news will come Wednesday, January 15 when Gov. Brownback addresses the Legislature with his fourth State of the State address. The governor will most likely discuss the Kansas budget process, education spending, job growth, merit selection process, and KanCare.


After the governor lays out his vision for 2014 session, legislators will begin introducing proposals and holding hearings. To keep up with the fast-paced Capitol news follow me on twitter (@KansasBarLeg). For the latest bill proposals, legislative updates, and deadlines go to our webpage online at www.ksbar.org/?legislative.


With the 2014 session a week away it is important to recognize Erin Davis, the newest Kansas lawyer/legislator. Davis replaces Rep. Bob Montgomery who retired early this year. Davis is a 2013 KU Law graduate and is currently employed by a trial consulting firm in Olathe. Davis will be sworn in next week as the representative for the 15th House District.


Chief Justice Lawton Nuss will give the State of the Judiciary address on Wednesday, January 22 at 2:30pm. This address is historic since it will be the first in the state’s history given from the Kansas Supreme Courtroom.


Kansas law requires the chief provide a written report to the judiciary committees and executive branches. This address will focus on the Judicial Branch budget, a possible nonjudicial personnel furlough and court closings. You can read the entire press release online at http://www.kscourts.org/Kansas-Courts/General-Information/news-releases.asp#010214.

 

The public can access a live webcast of the State of the Judiciary address by following the Watch Supreme Court Live! link in the right-hand column of the Kansas Judicial Branch website at www.kscourts.org. The address will be recorded for viewing afterward by anyone unable to attend in person or watch it live online.

 

Bills 

For attorneys interested in privacy rights:

Tags:  2014 Session  Erin Davis  Rep. Bob Montgomery  State of the Judiciary 

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School Finance and the Kansas Supreme Court

Posted By Joseph N. Molina III, Wednesday, November 13, 2013

This past week there have been a number of news articles surrounding the school finance case, Gannon v. State. This case deals with the appropriate amount of money need to provide a suitable education to Kansas kids. It is anticipated that the Kansas Supreme Court will be issuing its ruling in the next month or so. This ruling could require the state of Kansas to appropriate more funds for K-12 schools. The Kansas Supreme Court heard oral arguments on this case on October 8, 2013.

 

Several news articles have followed this case through the legal process. See Suzanne Perez Tobias, Kansas school-funding lawsuit hinging on what’s ‘suitable,’ The Wichita Eagle (Oct. 9, 2013), http://www.kansas.com/2012/06/02/2357937/kansas-school-funding-lawsuit.html; see also John Hanna, Kansas governor’s legacy clouded by school funding case, The Kansas City Star (Oct. 13, 2013), http://www.kansascity.com/2013/10/13/4550916/kansas-governors-legacy-clouded.html; and Dion Lefler, Kansas Supreme Court hears arguments in school funding case, The Wichita Eagle (Oct. 9, 2013), http://www.kansas.com/2013/10/08/3046855/2-kansas-justices-promise-on-school.html.

 

In each case the main thrust is what happens to the state budget if more money is needed to satisfy the Kansas Constitutional requirement to deliver a "suitable” education. There appears to be three distinct options. One is to simply appropriate the money and raise taxes. This option faces a very tough road during the 2014 session as the Kansas legislature recently passed a huge tax cut. To raise these funds by increasing taxes would undo a lot of that hard work. The second option is to ignore the ruling. This would place the three branches of government in a very uncomfortable position. The third option would be to change the Kansas Constitution so the legislature is in direct control of school appropriations. This idea was discussed earlier in 2013 but the votes were not there to put it on the statewide ballot.

 

In the meantime the Kansas Supreme Court has taken center stage for some very pointed criticism by Republican legislators. For instance, last week Senate President Susan Wagle (R-Wichita) stated that if the court rules later this year the same way it did in Montoy v. Kansas it would be "a killer decision.” "It would kill all potential funding increases for all government entities,” she said. "If the court does that, it is unaffordable and it is unrealistic. "So defying them is a possibility.” (Read more at http://www.kansas.com/2013/11/09/3106367/top-kansas-legislators-weigh-in.html#storylink=cpy)

 

From the same article, Rep. Gene Sullentrop (R-Wichita) also said that if the legislature is ordered to pay $400-$500 million, there would be a serious dilemma. He also believes that there is a "strong feeling that the court doesn’t have jurisdiction to appropriate money, and if there is a strong feeling that they are not looking at all sides fairly, then we are not apt to go along with them.” (Read more at http://www.kansas.com/2013/11/09/3106367/top-kansas-legislators-weigh-in.html#storylink=cpy)

 

This sentiment was reiterated by Sen. Wagle when she commented to the Wichita Business Journal that "If we do get that ruling down, what we’re going to do is focus on what is the role of the Supreme Court.” "Should they be interpreting law, should they be appropriating money?” Wagle said. "They aren’t elected, and we’re real concerned that when they do analyze how much money is appropriate for K-12 funding, they don’t get to hear all the other testimony that we hear from the other needs of the state, whether it be transportation, corrections, higher ed and all the other entities we fund. So it’ll be a very tough year if we’re at odds.” See John Stearns, Brownback: K-12 court ruling will color next legislative session, Wichita Business Journal (Nov. 7, 2013), http://www.bizjournals.com/wichita/blog/2013/11/brownback-k-12-court-ruling-will.html?page=all.

Quick Take

The Kansas Bar Association would like to thank all those involved in making the 7th Annual Fall Legislative Conference a success. Attendees were treated to a fabulous CLE on concealed carry, which was hosted by the KBA Bench & Bar Committee. Our speakers included KBA Bench and Bar Chair Teresa Watson, Chief Judge Dan Creitz, Assistant Kansas Attorney General C.W. Klebe, and Leavenworth County Attorney Todd Thompson.

 

I would also like to thank our conference panelists: Rep. Steven Becker (R-Buhler), Rep. Blaine Finch (R-Ottawa), Rep. Jan Pauls (D-Hutchinson), Rep. John Rubin (R-Shawnee), and Rep. Jim Ward (D-Wichita). I greatly appreciate them taking time out to discuss the 2014 legislative session with us.

 

Finally, the 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
  • Whitney B. Damron P.A.
  • R.E. "Tuck" Duncan/Kansas Wine & Spirits Wholesalers Association

At this point it is important to remember that two bills were introduced that would have a serious effect on the operation, composition, and jurisdiction of the Kansas Supreme Court during the waning days of the 2013 legislative session. Those bills:

  • HB 2415 which would reduce the mandatory retirement age from 75 years old to 65 years old for members of the Kansas Supreme Court and the Kansas Court of Appeals.
  • HB 2416 would split the Court of Appeals into two divisions. One devoted to only criminal appeals (five judges) and the other devoted to civil appeals (nine judges). In addition, this bill would limit the jurisdiction of the Kansas Supreme Court to those areas outlined by the Kansas Constitution.

The KBA Board of Governors has voted to oppose both of these bills.

 

It would not be a surprise if the criticisms of the Kansas Supreme Court continue throughout the winter and into the legislative session. Calls to alter the way Kansas Supreme Court justices are selected will most likely pick up steam, as will proposals to stifle the independence of the courts. Even now Kansas legislators are asking higher-education officials to lobby the Supreme Court in an effort to save higher education dollars. See Editorial: Court influence, Lawrence Journal-World (Nov. 7, 2013), http://www2.ljworld.com/news/2013/nov/07/editorial-court-influence/.

 

What other tactics are used to change public perception remains to be seen, but rest assured, we can expect a lot more.

Tags:  Gannon  Kansas Supreme Court  legislature  Montoy  school finance 

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