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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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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 5, 2016
Updated: Tuesday, January 5, 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 8, 2015
Updated: Tuesday, December 8, 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 1, 2015
Updated: Tuesday, December 1, 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 8, 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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Federal Money to the Rescue

Posted By Joseph N. Molina III, Tuesday, August 4, 2015

Last Thursday, Kansas Budget Director Shawn Sullivan announced over $62 million in budget transfers. View the full report online at http://budget.ks.gov/files/FY2016/FY2016_SGF_Reduction_Revenue_Plan--7-30-2015.pdf. The largest transfer was from federal funds earmarked for the Children’s Health Insurance Program ($17.6 million). The state reduced its contribution without reducing services by using this federal money. Had the state kept the money in CHIP, they could have expanded services but currently the state meets federal guidelines.

These are one-time money transfers that cannot be used again should state revenues falter again. Moreover, legislators were expecting cuts that would decrease the size of government and help with discussion back home when asked why the increase in sales tax.

See http://www.therepublic.com/view/story/65244c7630cb4965b75315e2b80cb548/KS--Focus--Kansas-Budget; see also http://www.kansas.com/opinion/editorials/article29708905.html; and http://www.kansas.com/news/politics-government/article29585017.html

Furthering the issue is poor first-month revenue numbers for fiscal year 2016. How this plays out will depend on revenue numbers going into the 2016 session. However, revenue is already down $3.7 million. Clouding the picture is that the sales tax increase has not been fully implemented and employees may not have changed their W-2s to account for losses in itemized deductions. A better accounting should be available when a full month is in the books.

See http://www.bizjournals.com/wichita/morning_call/2015/08/kansas-revenue-in-july-3-7-million-below.html?utm_source=dlvr.it&utm_medium=twitter.

In the meantime, please take a look at Kansas Legislative Research Department’s legislative highlights, online at http://www.kslegresearch.org/KLRD-web/Publications/LegislativeHighlights/2015-legislative-highlights.pdf.

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Adjournment!

Posted By Joseph N. Molina III, Tuesday, June 16, 2015

The longest legislative session in Kansas history came to an end on Friday, June 12. The 113-day session is a full five days longer than the previous mark. The total cost of the overtime session is around $989,000. To put it another way, 20 teachers could have been hired for an entire year with the money used in the Veto Session.

The Legislature also set a personal best by passing the largest tax increase in Kansas history. New taxes will increase by $384 million, with an addition $47 million from managed care organizations for the privilege of offering health care plans in Kansas.

The tax plan passed the Legislature by the narrowest of margins, with 63 votes in the House and 21 votes in the Senate. Not one Democrat voted for the tax plan in either House. The plan itself is a mashup of proposal to secure votes from each faction. The tax plan includes:

  • Increase the state sales tax to 6.5 percent, which generates an estimated $164 million;
  • Raise tobacco taxes by 50 cents per pack to generate $40 million;
  • Protects exemption passed in 2012 for 330,000 businesses that shields income for these LLCs from taxation, including owners salary and draws;
  • Wipes out itemized deductions, yielding $97 million;
  • Retained the Food Sales Tax Credit program but dropped plans to LOWER the sales tax on food to 4.95 percent;
  • Continue the governor's "March to Zero" on income taxes by accelerating the triggering mechanism that will force even further income tax rate reductions in 2019; and
  • Offers a tax amnesty plan worth $30 million.

The most troubling part of this plan is that it does not actually close the budget shortfall. It leaves a nearly $50 million hole. The governor will have to do allotments/cuts to get the budget balanced prior to June 30. In addition, this tax plan does nothing to solve the revenue problem. Expect taxes to be an issue into the future until a consistent revenue stream is found.

This was a very difficult session and long hours increased the stress level in the Capitol. The final product is not one that has garnered much positive attention.

See http://www.therepublic.com/view/story/8b2094125e73422fa387bd172670a414/KS--Kansas-Taxes; see also http://taxfoundation.org/blog/kansas-approves-tax-increase-package-likely-will-be-back-more; http://www.kansas.com/news/politics-government/article23827492.html; and finally, http://kansaspublicradio.org/kpr-news/kansas-house-approves-tax-bill-after-overnight-debate.

Now we wait and see if revenue numbers pick up and hope that the fall off from an increased sale’s tax is small enough not to eat into the already slim ending balance.

The official close of the session, also called Sine Die, is scheduled for June 26 at 10 a.m. This is purely ceremonial and no business is on the agenda. It also marks the opening of campaign contributions season. Look for those in your mailbox.

In the meantime please take a look at the Kansas Legislative website for summary of bills that have passed and been signed into law. Here are links to these summaries.

Summary of Legislation:

Another summary is due out in July.

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100 Days and Counting!

Posted By Joseph N. Molina III, Tuesday, June 2, 2015
The Kansas Legislature continues to be bogged down with the budget/tax process. Late Sunday and into early Monday morning, the Kansas Senate worked on a tax amendment offered by Sen. Steve Abrams (R-Arkansas City), which would have ended all but six sales tax exemptions while speeding up income tax cuts for individuals and corporations. Supporters of the bill argued that removing the sales tax exemptions was the only way to close the budget shortfall without raising taxes. After six hours of debate the only thing agreed upon was a reduction in the state sales tax from 6.15 percent to 5.95 percent. This would add $118 million to the budget hole. The Senate could not agree upon any other tax policy.

 

See http://www.kansas.com/news/politics-government/article22761891.html; and see also http://www.therepublic.com/view/story/857a50087ed14aae86c7c4a4a4c472f3/KS--Kansas-Taxes

 

The quote of the night came from Sen. Greg Smith (R-Overland Park), who in support of the Abrams amendment, said "Taxes are wrong. Taxes are legalized theft.” Smith is a retired police officer and current history teacher.

 

The main drag on the tax discussion was the veto threat from Gov. Sam Brownback on any tax plan that called for a more aggressive tax on business than what he proposed on Saturday.

 

The Brownback plan includes:

  • Increase sales tax to 6.65 percent;
  • Eliminated income tax on bottom 388,000 taxpayers;
  • 50-cent tax on cigarettes;
  • $30 million in tax amnesty;
  • Tax "guaranteed income” for some LLCs; and
  • Make changes to the allowable exemptions for single/married taxpayers.

The rub is that amnesty may only bring in half of the projected revenue, and the tax on guaranteed income would also fail to meet expectations since LLCs can simply rename the earnings and avoid tax.

 

Complicating matters is the strong possibility of state employee furloughs starting on June 7. The state will run into cash flow problems and may be forced to lay off workers should a budget not be in place by next Saturday. Rumor has it that a possible budget work around is getting drafted but no one knows what it looks like.

 

On the judicial branch front, the Kansas Senate reconsidered Saturday’s rejection of the court budget and passed it out easily 25-14. The hang up on Saturday was the non-severability clause proposed by Sen. Jeff King (R-Independence). While this provision is not being challenged, last year’s budget bill containing local control policies contrary to a centralized court system are being challenged. To rule against those local control policies would trigger the non-severability clause and cause budget issues for the courts. The Kansas House will take the court budget up soon.

 

The good news: should the court budget be signed by the governor prior to the June 7 furlough deadline, the courts would have the authority to use funds to side step an otherwise difficult June for state employees. First things first, the Kansas House need to adopt the conference committee report that contains the judicial budget bill, HB 2005.

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Kansas Legislature in Overtime

Posted By Joseph N. Molina III, Tuesday, May 26, 2015

The Kansas Legislature continues to be bogged down in the budget/tax process, and not much was accomplished last week in this regard. The Kansas Senate, who has a debatable proposal, decided to postpone their tax discussion till this Wednesday. The House plan remains in committee.

 

The Senate Plan – S. Sub. for HB 2109

  • Increase sales tax to 6.5 percent; food at 6 percent;
  • 50-cent cigarette tax;
  • Eliminates all deductions but mortgage interest, charitable, and property taxes but accelerates the percent deductible;
  • Increase motor fuel tax by 5 cents;
  • Tax amnesty;
  • Freeze income rates.

The House Tax Committee Plan – Sullentrop Plan

  • Leaves the charitable deduction intact, accelerates the haircut on the mortgage interest, and property taxes paid and eliminates all other deductions ($97 million)
  • Tax "guaranteed payments” of certain business entities ($23 million)
  • Freeze the current income tax rates ($22 million)
  • Increase sales tax to 6.5 percent and lower sales tax on food to 5.9 percent ($128 million)
  • Increase state motor fuels tax by 5 cents ($81 million)
  • 75 cents cigarette tax ($53 million)
  • Increase liquor enforcement tax to 10 percent, sunsets after 1 year ($14 million)
  • Tax amnesty ($30 million)
  • Manage Care Organization Tax Agreement ($48 million)

The tax plan, at this point, is the major hold up. Both chambers are wary of increasing taxes but from the proposals being forwarded, it appears they are out of options. There is not much else that can be cut without going back on promises. It would not be surprising to have the House pass a tax plan that is merely concurred to by the Senate. After which the House would simply agree to the items in the Senate’s version of the state budget. This way the House would get some blame for raising taxes while the Senate gets blamed for having too big a government. There is not much good news in the Capitol these days so lessening the amount of blame might be the end game here.

 

With the tax plan being hammered out in committee for debate later this week the Legislature had ample opportunity to work on bills that failed to pass during the regular session.

 

The most notable from last week are as follows:

  • SB 34 – Prosecutorial power to the Kansas Secretary of State. SB 34 gives the KSSOS independent power to prosecute election crimes. This was a very controversial idea given that local prosecutors and the Kansas Attorney General’s Office has power to prosecute these crimes. The bill passed 67-55 and is headed to the governor for signature.
  • HB 2104 – Local elections. HB 2104 is another controversial bill that would move local elections from the spring to the fall of odd numbered years. This bill also repeals the presidential primary. HB 2104 passed 64-58 and is also head to the governor for signature.

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