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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  budget  Supreme Court  Gannon  Hard 50  judicial branch  Special Session  2016 Session  2017 session  2017-18  Alleyne  Court of Appeals  Kansas Supreme Court  school finance  Senate  State of the Judiciary  Caleb Stegall  election  HCR 5005  legislators  merit selection  Montoy  opening  2014 Session  2015 Session  2015-16  annual  Brown v. Board of Education  Call to Action 

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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Kansas Supreme Court in the News

Posted By Joseph N. Molina III, Tuesday, October 8, 2013

The Kansas Supreme Court has made quite the news splash over the last five days. First off, the Supreme Court reversed a Kansas Department of Health and Environment decision granting the Holcomb power plant a license to build the coal-fired plant in southwest Kansas. The Court stated that KDHE needed to revisit federal clean air regulations and review the permit with those standards in mind. The case is Sierra Club v. Robert Moser, Secretary of Kansas Department of Health and Environment. See http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2013/20131004/105493.pdf; see also Kansas high court reverses Holcomb plant permit, http://m.cjonline.com/news/2013-10-04/kansas-high-court-reverses-holcomb-coal-plant-permit.

 

Many feel that this decision is another example of the Kansas Supreme Court being out of step with the public and legislative policy. Some have speculated that this will lead to a harder push to change how Supreme Court justices are selected.

 

The Supreme Court also heard oral arguments in the school finance case this morning. That case, Gannon v. State of Kansas, will decide if the legislature failed to provide for a suitable education for K-12 students. This case has been a major issue going back seven to eight years. It can be stated that the push to alter how judges are selected in Kansas began with the first school finance case (Montoy v. Kansas) and that push will only intensify should the Court rule in favor of the plaintiff and order additional funding.

Finally, the Kansas Supreme Court created a new committee to discuss and make recommendations for the judicial branch budget. The committee, chaired by Judge Karen Arnold-Burger, was organized to deal with a multimillion-dollar Judicial Branch funding shortfall. This committee will revisit recommendations made by the Blue Ribbon Commission and develop both long-term and short-term strategies. The committee will prioritize funding reductions that may include furloughs. See http://www.kscourts.org/Kansas-Courts/General-Information/news-releases.asp#100713

and http://www.kscourts.org/pdf_inc/Final-Agenda-CBAC-100713.pdf.

 

As it currently stands, funding for the Supreme Court is under water from the proposed FY 2015 budget. In the FY 2015 budget the Supreme Court asks for 11 new judges and 30 new clerks to deal with high case districts. It also asks for funding to renovate the Supreme Court to deal with security and staffing issues.

Tags:  funding  Gannon  Judicial Branch  Kansas Supreme Court  KDHE  Montoy  Sierra Club 

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Legislature Makes Quick Work of 2013 Special Session

Posted By Joseph N. Molina III, Monday, September 9, 2013
Updated: Monday, September 9, 2013

The Kansas Legislature managed to make quick work of the 22nd Special Session. The Legislature managed to draft a bill, hold hearings in both chambers, pass one amendment in committee, defeat another amendment on the House floor (Ward’s Voter’s rights bill), and approve a bill—all in less than two full days. That is very impressive for a group of legislators who led a nine-day overtime period in the veto session. That type of efficiency should be commended.

 

As for the main reason for the Special Session, the Hard 50 ruling, the Legislature managed to pass out HB 2002. This bill was crafted by the Kansas Attorney General’s Office, with input from various law enforcement and prosecuting attorney groups. Please read the supplemental not on HB 2002 for more information.

 

The Kansas County and District Attorney Association played a vital role in moving this bill so quickly through the process. The KCDAA enlisted a number of district attorneys to support the bill. DAs Marc Bennett and Steve Howe testified in support of the Hard 50 fix. They argued that the fix was needed to restore certainty to the sentencing process. The most compelling testimony came from Sen. Greg Smith, who testified on behalf of victim’s families.

 

While HB 2002 faced little opposition when the final votes were tallied (122-0 in the House and 40-0 in the Senate), there were some concerns that the "retroactivity” provision in the bill would fail the constitutionality test. Subsection ”d” reads:

The amendments to subsection (c) by this act: (1) Establish a procedural rule for sentencing proceedings, and as such shall be construed and applied retroactively to all crimes committed prior to the effective date of this act, except as provided further in this subsection; (2) shall not apply to cases in which the defendant's conviction and sentence were final prior to June 17, 2013, unless the conviction or sentence has been vacated in a collateral proceeding, including, but not limited to, K.S.A. 22-3504 or 60-1507, and amendments thereto; and (3) shall apply only in sentencing proceedings otherwise authorized by law.

Proponents argued that a procedural change could be applied retroactively so long as it does not alter the substantive language of the statute. By merely providing for a new sentencing process, which is in line with the U.S. Supreme court ruling in Alleyne v. U.S., 133 S. Ct. 420 (2012), can HB 2002 apply to defendants who are subject to the Hard 50 sentence?

 

Opponents of HB 2002 argued that creating a new process for sentencing is a substantive change since the U.S. Supreme Court found the old rule unconstitutional, thereby voiding that statute. By passing HB 2002, opponents argued, the Legislature has re-created the Hard 50 policy that is a substantive change to the criminal code.

 

How the courts interpret this change will take some time, but revisiting the Hard 50 policy is not out of the realm of possibilities.

 

For more Hard 50 news please see:

Quick take: Rep. Edwin Hale Bideau III (R- Chanute) passed away on September 5, 2013. Bideau was born in Chanute on October 1, 1950. He received both his business and law degrees from Washburn University in Topeka. Bideau served two stints in the Kansas Legislature, once in 1984 and again in 2012. Funeral services will be held at 2 p.m. on Tuesday, September 10, 2013 at the First Presbyterian Church in Chanute.

While the Hard 50 took a significant portion of the Special Session, the political attention of many was firmly placed on the confirmation hearing on Caleb Stegall. As has been reported repeatedly, Stegall is the chief counsel to Gov. Sam Brownback. He applied for the previous two Court of Appeals openings created with the retirement of Judge Christel Marquardt and the sudden death of Chief Judge Richard Green. In both instances, Stegall failed to advance to the final three nominees. Judges Kim Schroeder and Anthony Powell were selected for these two openings.

 

The governor argued for a change to the selection process for the Kansas Court of Appeals, and with the aid of his chief counsel and the Kansas Legislature, the process was altered to allow the governor to nominate any individual and the Senate to confirm that nominee. It is important to point out that Stegall, on behalf of the governor’s office, testified on several occasions in support of the change.

 

Stegall, along with 18 other individuals, applied for the vacant 14th Court of Appeals position. The governor formally nominated Stegall on August 22. The Senate held his confirmation hearing on September 3 and the full Senate confirmed him on September 4. The final vote was along party lines 32-8.

 

While it was apparent that Stegall had a majority of individuals willing to support his nominations, Democrats decried the process by which he was nominated. Democrats argued that the new process was secretive and less open than the merit selection process. See Irony swirls around Brownback's cloak of judicial secrecy, CJOnline.com,

http://cjonline.com/blog-post/tim-carpenter/2013-08-22/irony-swirls-around-brownbacks-cloak-judicial-secrecy.

 

In addition, several Kansas lawyers, two who wrote letters of recommendation for Stegall, found the new process unappealing. One even stated that the new process weakened Kansans’ confidence in their judges. See Notable Kansans weighing in against new appellate court selection process, LJWorld.com, http://www2.ljworld.com/news/2013/aug/30/notable-kansans-weighing-against-new-appeallate-co/.

 

Nevertheless Stegall was easily confirmed. However, it appears likely that Democrats will push to alter the selection process by making the application process more open. Sen. Anthony Hensley has pre-filed a bill for the 2014 session that would require the governor to release the names of any applicants. How this is received in January may shape the entire session.

 

Reaction to the Stegall nomination:

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

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Special Session Opens Today

Posted By Joseph N. Molina III, Tuesday, September 3, 2013
Updated: Tuesday, September 3, 2013

The Kansas Legislature reconvened at 8 a.m. today to finalize last week’s "Hard 50” proposal. Committees on both sides of the aisle will work this week to fix the sentencing structure for the most heinous of crimes. The Kansas Legislature is responding to a U.S. Supreme Court case that found certain sentencing guidelines to be unconstitutional when imposed by a judge and not a jury. The full opinion can be found online at http://www.kslegislature.org/li_2013s/documents/us_supreme_court_decision_alleyne_v_us.pdf/ and a report from the Special Committee on Judiciary can be found at http://skyways.lib.ks.us/ksleg/KLRD/2013CommRpts/spc-judiciary-cr.pdf.

 

The plan will be for the House to debate and pass the "Hard 50” proposal first, then sending it over to the Senate Wednesday or Thursday before a final Senate vote. The bill should be on the governor’s desk shortly thereafter.

 

It is also important to remember that legislators cannot receive or solicit any campaign contributions while they are in session. Be mindful of that little hiccup in the fundraising rules.

Quick take:

 

Judicial funding will play a role this week as the Kansas Supreme Court requests additional funds for this fiscal year in anticipation the 14th Court of Appeals judge position is confirmed. The Supreme Court will need money to complete renovations, hire staff, and pay other bills not in the original budget. A supplemental funds request has already been sent over to the Legislature for their consideration.

 

In addition, I reported in my "Legislative Wrap–Up” article (found in the KBA July/August Journal) that the Supreme Court "should be able to avoid furloughs during the two-year budget cycle” by using unencumbered funds. While still a possibility it remains unclear if the Court will be able to avoid furloughs in the 2015 fiscal year, which begins July 1, 2014. This July/August article was referencing the 2013/2014 fiscal years. As such the Kansas Supreme Court will be working vigorously to secure funds to keep courthouses open but the 2015 outlook appears uncertain at this moment.  

Besides the "Hard 50” legislative fix, the Kansas Senate will hold a confirmation hearing for Caleb Stegall, who was nominated to take the 14th Court of Appeals position last month. The Stegall confirmation has been at the top of most newspaper in the last week or so. The following articles have been published concerning the Stegall nomination.

With a significant Republican majority on the Senate Judiciary Committee and in the Kansas Senate as a whole, Stegall’s confirmation seems secure. We can anticipate opponents to discuss the method of Stegall’s nomination, the lack of transparency in the selection process (Brownback refuses to release names of applicants) and the executive branches redaction of names from a KORA request submitted by the Kansas League of Women Voters and other issues dealing with the process of selecting a Kansas appellate judge. However, in the end, the votes are there for an easy confirmation of Caleb Stegall.

Tags:  Caleb Stegall  Court of Appeals  Hard 50  legislature  Special Session  Supreme Court 

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Caleb Stegall nominated for 14th Court of Appeals position

Posted By Joseph N. Molina III, Tuesday, August 20, 2013

Gov. Sam Brownback officially nominated chief counsel Caleb Stegall for the Kansas Court of Appeals on Tuesday, August 20. Stegall was nominated ahead of 18 other applicants. Brownback called him "one of the most if not the most qualified candidate Kansas has ever had.”

 

Prior to becoming chief legal counsel, Stegall was elected as Jefferson County attorney. He also helped gain the release of four missionaries in Haiti some years ago.

 

Stegall thanked many of his friends and family but paid special attention to those individuals who disagreed with him on judicial selection methods. He mentioned several by name, including former Kansas Attorney General Steve Six, current KBA President Dennis Depew, and former Sebelius appointee Steve Martino. These individuals recommended Stegall on a personal basis and not thru their respective organizations.

 

Stegall will now stand for confirmation by the Kansas Senate. He will also need to provide answers to a questionnaire. This questionnaire was prepared by Judge Deanell Tacha, Professor Stephen McAllister, and Professor Reginald Robinson on a written questionnaire for individuals nominated to the Kansas Court of Appeals. Attached is a link to the questionnaire.

 

The Kansas Legislature is set to return for a special session on Tuesday, September 3. The Senate will also take up a number of governor appointments, including the Stegall nomination. Hearings for these appointments will begin the week on August 26. However, at this time no meetings have been set.

 

Here are some news stories about the Stegall nomination:

Download File (PDF)

 Attached Files:

Tags:  Brownback  Caleb Stegall  Court of Appeals  Dennis Depew  legislature  Senate 

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Special Session Set for September 3

Posted By Joseph N. Molina III, Tuesday, August 6, 2013

For the 22nd time in Kansas history the Kansas Legislature will reconvene in Topeka for a Special Session. This is the fourth time that the Legislature returned for a special session since agreeing to meet yearly in 1967.

 

The primary reason for this unique experience is to debate changes to Kansas’ "Hard 50” sentencing statute. Earlier this summer, the U.S. Supreme Court ruled that "any element that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” See full text of Alleyne v. U.S., 133 S. Ct. 2151 (2013). In Kansas the trial judge decides whether the "Hard 50” sentence is appropriate; however, to comply with this new ruling, the Kansas Legislature will have to adopt a rule change allowing the jury to be the fact finders in "Hard 50” circumstances. See https://governor.ks.gov/media-room/media-releases/2013/07/26/governor-brownback-calls-special-legislative-session.

 

While this appears to be a simple and quick rule change, a number of other issues have been thrown into the mix that may require the Legislature’s attention. For instance, Kansans for Life would like the Legislature to take up a fetal heartbeat law that failed to pass during the regular session. See http://www.shawneedispatch.com/news/2013/jul/29/kansas-abortion-group-sees-opportunity-special-ses/. This may be a hard sell since leadership has already taken that issue off the table. See http://cjonline.com/news/state/2013-07-29/special-session-abortion-table-court-seat-play. However, Kansans for Life is a very influential group that may be able to change enough minds and force the leadership’s hand.

Quick Take:

President Barack Obama has nominated Kansas Supreme Court Justice Nancy L. Moritz for the U.S. Court of Appeals for the Tenth Circuit. Justice Moritz has served as a justice of the Kansas Supreme Court since 2011. During her career, she has handled a broad array of legal matters before both state and federal courts as an assistant U.S. attorney in the District of Kansas, an appellate coordinator for the District, and as a member of the Kansas Court of Appeals. Justice Moritz was born in Beloit and was raised in the small community of Tipton. She received her bachelor’s degree from Washburn University in Topeka in 1982 and her juris doctorate from the Washburn University School of Law in 1985.

The most public issue to date is the possible truncated confirmation of the 14th Court of Appeals judge. The newly enacted law requires the governor to name a candidate for the vacant 14th position by Thursday, August 29. To date, the governor has declined to share the names of any applicants and the ABA recently issued a statement disputing Gov. Brownback’s take on appellate selection. See http://cjonline.com/news/2013-07-30/aba-disputes-brownbacks-take-judicial-selection.

 

Should the governor utilize the statutorily allotted time to select a candidate, the Senate Judiciary Committee would have less than six days to convene a committee hearing, request public input, collect relevant information on the candidate and hold a committee hearing before the start of the Special Session on Tuesday, September 3. This would appear to be a very quick turnaround for a significant position within the third branch of government. However, Sen. Jeff King, Senate vice president and chair of the Senate Judiciary Committee, has stated that he intends on completing a thorough review of the candidate. How quickly this review is accomplished is the main question.

 

Needless to say several news articles and editorials find the summer confirmation of a Court of Appeal’s judge using this new process curious.

Even with the public paying special attention, the outcome seems to be inevitable and the governor’s selection should earn quick confirmation. However, the new selection process once deemed to be more open and representative appears less so.

Tags:  Alleyne  Brownback  Hard 50  Moritz  Special Session 

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Gov. Brownback Calls Special Legislative Session

Posted By Joseph N. Molina III, Tuesday, July 30, 2013

The following is from the July 26 press release from Gov. Sam Brownback.

 

In the interest of protecting public safety and in response to a request from Attorney General Derek Schmidt, Gov. Sam Brownback will call the legislature into special session at 8 a.m. on Tuesday, September 3.

 

The attorney general formally requested the special session on July 24 for the purpose of repairing Kansas’ "Hard 50” sentence following the June 17 decision of the U.S. Supreme Court in Alleyne v. United States. Legal experts in the field agree that the Alleyne decision renders the current Kansas "Hard 50” law unconstitutional because a judge rather than the jury makes the sentencing decision. According to the attorney general, the legislature can cure the constitutional defect by adopting a relatively simple procedural fix allowing the jury to make the necessary factual findings before the "Hard 50” sentence is imposed.

 

"The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said. "It is intended to remove the most dangerous and violent killers from society for at least 50 years. The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans. I am confident the legislature can and will act quickly, with resolve and narrow focus, to protect our citizens by restoring to prosecutors the immediate ability to seek the ‘Hard 50’ sentence for the worst offenders.”

 

Broad bipartisan support exists among the leaders of this legislature that this special session is necessary and is in the best interests of public safety. Additionally, law enforcement and prosecutorial agencies across the state have urged the governor to adopt the attorney general’s recommendation.

 

"We must address this issue to protect all our citizens, but particularly out of concern for the victims of these crimes and their families,” Brownback said. "I agree with the attorney general’s opinion that we face an ‘extraordinary occasion’ sufficient to justify this office exercising its authority to call the Legislature into special session pursuant to Article 1, Section 5 of the Kansas Constitution.”

 

Due to the constitutional and statutory requirement that the state bring criminal defendants to trial in a speedy manner, time is of the essence. After consulting with Attorney General Schmidt and legislative leaders, it was agreed a special session during the first week of September is optimal timing. According to the law enforcement community, that time period effectively protects public safety while allowing the necessary time requested by the attorney general for adequate preparation and planning to ensure a quick, focused and orderly session. According to the attorney general, putting this issue off until next January will "virtually guarantee” an increase in "the number of convicted killers who will be eligible for parole after only 25 years instead of after 50 years.”

 

"It is my hope after talking to legislative leaders that the special session can be completed by the close of business on September 5,” said Brownback.

 

See also http://www.kshb.com/dpp/news/state/kansas/gov-sam-brownback-calls-september-special-session-to-rewrite-hard-50-criminal-sentencing-law.

 

The Kansas Legislative Research Staff has put together a list of all 22 Special Sessions and the topic covered by that session. See http://skyways.lib.ks.us/ksleg/KLRD/Publications/2013-Kansas_Legis_Special_Sessions.pdf.

Quick Take

In addition to the "Hard 50” discussion, rumors have been circulating about the possibility of debating a repeal of the death penalty and the confirmation of the 14th Kansas Court of Appeals judge. Gov. Brownback has not appointed anyone but that could be accomplished prior to the September 3 Special Session.
We could also see additional abortion-related legislation. See http://www.shawneedispatch.com/news/2013/jul/29/kansas-abortion-group-sees-opportunity-special-ses/.

KBA Legislative Meeting

Coincidentally, the Kansas Bar Association is scheduled to hold its legislative meeting on Friday, August 30 at the KBA offices in Topeka. This meeting will cover the issues discussed in the 2013 session, the possible Special Session topics and a look forward to 2014.

 

If you are a KBA member you may get updates on committee activity on our website at http://www.ksbar.org/members/group.asp?id=111712.

Tags:  Alleyne  Brownback  Hard 50  legislative  legislature  Supreme Court 

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2013 Session Adjourns

Posted By Joseph N. Molina III, Tuesday, June 4, 2013
Updated: Wednesday, June 26, 2013
On the 99th day of a promised 80-day session, the Kansas Legislature finally adjourned for the year. Sine die has been scheduled for June 20. Other than officially closing the 2013 legislative session, sine die is important because it allows lawmakers to begin receiving political contributions. Look for those mailers to be sent out asking for contributions for next year’s primary and general elections.

Quick Take:

A very late effort to expand Kansas Secretary of State Kris Kobach’s powers to include prosecution of election fraud cases failed early Sunday morning. This bill would have given the secretary of state authority to go after voter fraud. The Kansas House voted 45-64 to kill the measure. See Kansas City Star, Kansas lawmakers fail to expand Kris Kobach’s power, available at http://www.kansascity.com/2013/06/02/4270349/kan-lawmakers-fail-to-expand-sec.html.

 

Both chambers worked late into the night and early morning with intent on keeping the calendar set on the 99th day. It costs the state (taxpayers) roughly $45,000 per day to run the statehouse. Given the extended veto session taxpayers paid an extra $405,000 to close out the year.

 

Oddly enough, money issues were the main reason the Veto Session dragged on for an extra nine days. Both chambers could not agree on a tax plan that would help fund the budget and keep the state out of the red. However, in the end enough arms were twisted for the House to pass a tax plan (63-51) that included a partial extension of the sales tax with the possibility of a sales tax buy down should future revenue exceed 102 percent. The sales tax will be kept at 6.15 percent instead of reverting back to 5.7 percent as promised in 2010. The tax bill also adds revenue by reducing income tax deductions, think mortgage interest, and raises more than $300 million for FY 2014. Add these two taxes together and the numbers start to look a little better for positive ending balances. Although the budget does not account for any additional money for K-12 should the Kansas Supreme Court order it.

 

From here look for political points to be made calling the tax plan a tax increase. Democrats and some Republicans see the tax plan as a $777 million tax hike while the governor and his supports call it a tax cut because it lowers income tax rates over the next five years. See

Once the Kansas House passed the tax plan, the Senate could comfortably work on the budget without fear of the House adjourning or leaving town. The budget was a little trimmer that the Senate or governor wanted, especially for Higher Education, which the governor wanted to be held static. The House wanted solid cuts to shrink government and for the most part they got what they wanted. Under the current numbers state agencies should be good till next spring but supplemental budget requests are not out of order for 2014.

 

Finally, the Kansas Legislative Research Department has released two 2013 legislative summaries. These are great resources to find new laws by specific category and they can be found at http://www.kslegisalture.org/li.

 

For more information and to find other bills please review the updated Bill Tracking Chart.

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Veto Session Continues

Posted By Joseph N. Molina III, Tuesday, May 21, 2013
Updated: Wednesday, June 26, 2013
The Kansas Legislature has surpassed its self-imposed 80-day session with no resolution to the remaining issues. The largest trouble spot keeping everyone in the statehouse is the budget. Most of the low hanging fruit has been dealt with but the main issue remains higher education and a possible cap on state employee pay. Both chambers are pushing to retain as much as possible of their budget plan, which should force each side to compromise a little. Right now the House is looking to make deeper cuts into higher education to save enough cash and make retention of the sales tax moot. The Senate, on the other hand, wants to keep spending at a higher rate and use that additional expense as a reason to extend the sales tax. This game has been going on for the entirety of the Veto Session as discussed in the following articles:

Unfortunately this is not the only issue of concern to most KBA members. The elephant in the room remains merit selection of appellate court judges and justices. Last week the KBA voted unanimously to reject the most recent proposal from legislative leadership. This proposal would have allowed the governor to appoint five of the nine members to the Supreme Court nominating commission. This latest effort was simply a bridge too far for the KBA Board of Governors, and they rejected the proposals and issued the following press release: http://ksbar.org/displaycommon.cfm?an=1&subarticlenbr=456.

 

This was met with a swift reaction by Rep. Lance Kinzer (R-Olathe), who introduced, at the rail of the statehouse, three new proposals aimed squarely at Kansas appellate courts. These proposals include, HB 2415, which lowers the retirement age of appellate judges from 75 to 65; a proposal to move to a strict federal model of appointing judges with consent of the senate and lifetime appointments for all new judges; and a proposal to limit the jurisdiction of the Supreme Court by creating a separate criminal appellate court.

 

Each of these proposals was introduced less than 24 hours after the KBA voted to reject the most recent proposal. These bills will not be heard this session as time and energy is focused on budget, but we can expect a lengthy discussion in 2014. For more news on this issue, please see:

Finally, the Kansas Legislative Research Department has released two 2013 legislative summaries. These are great resources to find new laws by specific category and they can be found at http://www.kslegisalture.org/li.

 

For more information and to find other bills please review the updated Bill Tracking Chart.

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