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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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Day 90 (Plus 1)

Posted By Joseph N. Molina III, Tuesday, May 19, 2015
The Kansas Legislature has officially reached overtime with the 2015 session. Legislators have failed to pass a budget or a tax plan before the 90-day deadline. As such, legislative staffs—mainly office assistants—are no longer in the Capitol, and legislators will have to fend for themselves on most things clerical.

 

The main hold up is the tax plan. Both chambers have a reasonable grasp on how much the state will spend but no idea on how to pay for those expenses. Last Friday the Kansas House attempted to pass a tax plan calling for a higher state sales tax that was met with a resounding defeat.

 

This plan, H. Sub. for SB 270, would raise the state sales tax rate from 6.15 percent to 6.85 percent but lower the tax on food to 5.90 percent. This would raise nearly $140 million. Itemized deductions would be limited to property tax, mortgage interest, and charitable contributions. The standard deduction would remain at $7,500 for married couples but only $3,000 for singles. The state would offer tax amnesty to individuals who failed to pay taxes. This would generate $30 million. After all this, the ending balance would only be $16.1 million for FY17. Not nearly enough to handle any missed revenue projections.

 

The sales tax increase is a nonstarter with conservatives and most believe the democrats will not vote for any tax increase. And don’t expect any help from the Senate because they are dealing with a member who only wants to raise property taxes on farmers in western Kansas. With this being said, it was no surprise that H. Sub. for SB 270 failed on a voice vote.

The plan is to reconvene this week and try to find some common ground between all factions. One idea floating around in a 4-6 percent across the board cut. This would get votes from small government legislators and allow them to hold their nose for some form of tax hike.

 

As for the judicial branch budget, the conference committee reached an agreement yesterday. Attached you will find two PDFs that list the differences in each bill. You will notice the House bill appropriating more money for both FY16 and FY17. The House also has a severability clause that allows the funding sources to survive any constitutional challenge. The Senate version has the exact opposite language. The agreement was to fund the court’s based on the House proposal but keep all the policy language crafted by the Senate.

 

The heartburn was the nonseverability clause. House negotiators were concerned that funding levels may not be kept level next fiscal year but the nonseverability clause would remain. The answer was to draft language keeping funding static. Democrats on the conference committee refused to sign the report so procedurally both chambers will have to run a "Agree to Disagree” motion in order for the report to be passed with less than unanimous agreement.

 

See http://www2.ljworld.com/news/2015/may/18/bill-threatens-de-fund-kansas-judicial-branch/.

 

Not much else going on but with so much free time some legislators may begin to get bored and try to work some pet projects. We will see how this all unfolds.

 Attached Files:

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Capitol Focuses on Taxes

Posted By Joseph N. Molina III, Tuesday, May 12, 2015

This week is off to a rather quick start as House Tax committee worked throughout the day to put together the first tax package to help close the revenue shortfall for FY 16 and FY 17. The legislature is attempting to close a $406.4 million hole in FY 16 and a $367.9 million hole in FY 17. Attached is a spreadsheet from the Kansas Legislative Research Department that breaks down the revenue vs. expenditures for the next two years.


Three are a number of ideas on the table; the most prominent is closing the passive-income loophole. Closing the loophole could raise revenue by $133 million. Also of note is a statewide sales tax increase to 6.5%. This would provide an additional $165 million. Combine these two tax increases with the Managed Care Organization privilege fee of around $60 million and you begin to get close to a zero balance. However, these are not easy pieces of legislation to pass. Many conservative republicans are not fond of raising any taxes. Some would rather cut our way out and leave income tax rates were they are currently. This first tax package will be tested very soon.


Last week the Kansas House approved their version of the judicial budget (HB 2365) as well as the uniform family support act (SB 105) and the Business Entity Standardization act (SB 276).

The judicial budget was approved 108-10. That is significant since this issue will need to be negotiated with the Senate version (HB 2005). The House version provides nearly $5 million more state general funds in FY 16 and almost $9 million more SGF in FY 17. The House understands this issue and with such a large majority voting in favor it will be hard to walk away from their higher funding level proposal.


SB 276 BEST Act is headed to the governor now that it has passed both chambers. As will SB 105, UIFSA.


An interesting side note is that the House approved a measure allowing for the use of hemp oil to treat seizures and gave authority for industrial hemp to be studied.

 

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Tags:  budget  deficit  tax 

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Wrap-Up Session Continues

Posted By Joseph N. Molina III, Tuesday, May 5, 2015

After a rather slow start to the final leg of the 2015 legislative session things began to pick up in week two. The governor announced a deal on wind energy yesterday, making the Renewable Portfolio Standard voluntary in exchange for property tax exemptions. This was a huge issue in 2014 that spilled over to 2015. Not much had been done on RPS so this agreement was a bit of a surprise.

 

Another big news item was movement of the Kris Kobach bill (SB 34) to allow the Kansas secretary of state to prosecute voter fraud cases. This bill passed out of the House Judiciary Committee after a decent debate. Now it heads to the House floor.

 

The judicial branch budget is being debated in the Senate today. HB 2005 contains $97.6 million in Stage General Fund and provisions to extend the surcharge fee ($9.5 million), allow the transfer of e-filing funds ($2.25 million), and expands fees for all dispositive motions ($575,000). HB 2005 fails to fund the Judicial Branch at the original budget request of around $110 million. The big hold up is the non-severability clause added to the budget bill to keep 2014 policy pieces in place. Currently there is a lawsuit challenging these 2014 policy pieces. See https://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Petition%20for%20Declaratory%20Judgment%202-18-15.pdf.

 

Should the court grant the declaratory judgment the non-severability clause would be enforceable and funds to the judicial branch would be at risk.

 

The House has its own version of the judicial branch budget. That bill, HB 2365, is very similar to the Senate proposal with similar funding numbers. However, the House version lacks the non-severability provision but contains a proviso to study merging the Supreme Court Law Library with the Washburn Law School Library. This proviso, proposed by Rep. Virgil Peck (R-Tygo), requires the Supreme Court to fund a report to the House Appropriations and Senate Ways and Means committees on the feasibility of Washburn Law School assuming the duties of the Kansas Supreme Court Law Library.

 

Also please look for the quick passage of the BEST Act concerning business filings. That bill, SB 276, was placed on the Consent Calendar yesterday.

 

Finally, the Kansas Bar Association is hosting a CLE at the Capitol again this year. This CLE is free to any lawyer-legislator. Stan Hazlett will provide an hour of ethics on Wednesday, May 6.

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Legislators Return for Wrap-Up Session

Posted By Joseph N. Molina III, Tuesday, April 28, 2015

The state budget or lack thereof is the primary focus as legislators return to the Capitol tomorrow. The big issue is how to close the $400 million budget gap that spans the next two fiscal years. Some legislators have said that all reasonable options are on the table. This sounds a lot like the possibility of revisiting the income tax cuts that are the reason for the budget shortfall. That option does come with a lot of political challenges, not the mention the possibility of a veto by the governor who wants to move to a consumption tax.

 

Should the legislators try to cut their way out of this budget mess they run into another issue, namely K-12 block grants. This bill, SB 7, was signed into law already which essentially takes more than half of the state budget off the table. Add the KPERS bonding bill and the HOPE Act, and there is little less than 30 percent of the budget left to make cuts.

 

There appears to be no consensus on which option to pursue so the likely outcome would be a mix of both. Look for attempts to push a tobacco tax and then to modify the income portion. See http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article19800882.html.=.

 

To see how deep the budget hole is, visit State Revenue Estimates Memo - http://budget.ks.gov/files/FY2016/CRE_Short_Memo_April2015.pdf. See also http://kansaspublicradio.org/kpr-news/kansas-budget-hole-grows-deeper-new-revenue-projections-not-good.

 

As if the budget issues weren’t enough both chambers continue to get pressure to expand Medicaid. Now the Federal government might even consider withholding funds. See http://kaiserhealthnews.org/news/tennessee-and-kansas-also-get-warning-expand-medicaid-or-risk-losing-hospital-funds/.

 

While this does add to the stakes federal coercion has proven to less than an effect technique in Kansas.

 

To break up the routine committee meeting process, the Kansas Bar Association will be hosting another CLE at the Capitol this year. This CLE is free to any lawyer-legislator. Stan Hazlett will provide an hour of ethics next Wednesday, May 6.

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Revenue Poor

Posted By Joseph N. Molina III, Tuesday, April 21, 2015

The April Consensus Revenue Estimates were released yesterday, and the findings were very poor. Estimators lowered, again, projections for this fiscal year, as well as FY16/FY17. The state is $87.5 million short for the remainder of this year but executive branch staff believes they can make it through without further changes to the current budget.

 

FY16/FY17 is a different story that will be told by Gov. Brownback on Thursday when he releases his budget amendments. The governor will have to come up with almost $400 million. This includes the lowered revenue estimates of $98 million for FY16 and $108 million for FY17.

Leveling off the budget will be more difficult since the school block grant bill and KPERS bonding provisions have already been passed. These two items make up a significant part of the overall state budget, so cuts would have to be made to the smaller portion of the state budget.

 

The legislators could also look at raising taxes, removing sales tax exemptions, or even raising the statewide sales tax to make up for the shortfall.

For their part Kansas legislators have said education, social services, and pensions need to be funded. The question is at what level. It is important to remember that the recently passed school finance block grant bill was a policy bill, not an appropriations bill. This means that the school block grant bill is not funded yet. Changes could be made to the omnibus budget bill that impacts the school block grant bill. The likelihood of that is quite remote but so is a massive infusion of sales tax revenue.

More will be learned Thursday when the governor releases his ideas to close the budget shortfall.

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First Adjournment

Posted By Joseph N. Molina III, Monday, April 6, 2015
The 2015 legislative session reached a major milestone a full day early when legislators gaveled out for First Adjournment on Thursday, April 2. The deadline was set for April 3, but with little movement on the budget, leadership wanted to bank the extra day for the veto session. The Legislature has pushed off the large items so the extra day will come in handy.

 

Some big bills did pass both chambers prior to the end of the regular session. The constitutional carry bill probably got the most press with equal amounts of praise and concern. See http://rt.com/usa/246645-kansas-concealed-carry-law-signed/.

 

Fiscally, the Legislature passed out a major piece of Gov. Brownback’s revenue plan by passing a KPERS bill allowing the state to bond out $1 billion dollars. This will save the state around $60 million in the short term, but cost much more in interest going forward.

 

The rest of the revenue/tax plan is still up in the air. Even the governor is stepping away from his proposal to increase taxes on cigarettes/alcohol.

 

This makes things very dicey since the proposed state budget is around $200 million in the red. To get to a balanced budget, more cuts will have to be made (hard to do with school finance/KPERS off the table now) or raise some type of tax somewhere. Just a quick side note – revenue for March was down another $11 million. See http://abcnews.go.com/Politics/wireStory/kansas-collected-11m-taxes-expected-month-30037386.

 

On the judicial branch front, not much has been done to pass the court budget. The judicial branch budget is stuck in the Senate as of now. The bill now contains policy language linking voluntary local judicial district budget controls to funding. Some have said tying the policy provisions, which include a non-severability clause, to the FY16/FY17 judicial budgets is a shot at the Solomon lawsuit in south-central Kansas. See http://www.courthousenews.com/2015/02/20/judge-stands-up-to-kansas.htm.

 

How the judicial budget evolves from here might also depend on if the three-judge panel enjoins the school finance block grant passed earlier this year. See http://kcur.org/post/motion-filed-stop-block-grant-school-funding-kansas; see also http://cjonline.com/news/2015-03-25/brownback-signs-school-block-grant-funding-bill.

 

The Legislature has already responded with a warning shot should the three-judge panel make the school finance issue a hot topic again. Sen. Mitch Holmes (R-St. John) proposed a bill increasing the reasons a Kansas Supreme Court justice could be impeached. SB 297 would allow the House of Representatives to file articles of impeachment for a variety of transgressions, including failure to adequately supervise subordinate employees (think the law clerk who tweeted about the Kline disciplinary hearing) and attempting to subvert fundamental laws and introduce arbitrary power (think school finance). The Senate would be the judge/jury should article of impeachment be passed by the House.

 

This is not the only bill aimed at the judicial branch this session. Below are just a few more that either affect the selection of judges/justices, attempts to alter the operations of the court, or deals with funding the judiciary. The KBA will monitor these bills very closely during the Wrap-Up Session.

Judicial Selection

Court Operations

Judicial Budget

Legislators will return on Wednesday, April 29 to finalize the state budget, pass a tax bill, and tie up any other loose ends. The general thought is this process may take some time and look for a mid-May adjournment, if not later.

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Conference Committees Begin

Posted By Joseph N. Molina III, Tuesday, March 31, 2015
Last week the Kansas Legislature worked through a number of bills before breaking for an early weekend. The Senate churned through 20 or so bills, including their version of the state budget. The Senate version does not include any K-12 funding (block grant bill signed into law by the governor) or the Judicial Branch budget. The House has yet to debate their version of the state budget.

The House did pass out a controversial abortion ban and a constitutional carry proposals aimed at allowing anyone over the age of 21 to conceal carry without a permit.

This week legislators will begin working in conference committees. The Judicial Conference Committee meet today to provide an overview of bills in conference, bills that are conferenceable and bill stricken from the calendar.

Generally, for a bill to be in conference it must pass both chambers but be amended by at least one of the chambers. This creates two different versions of the same bill requiring both chambers to reconcile the differences in conference. For a bill to be conferenceable it merely must have passed one chamber.

Thus far the Judiciary Conference Committee has three bills in conference and they anticipate four more being added this week. As such, only seven bills will be in conference. Further restricting how many bills can be passed by the conference committee is the 4 bill bundling rule passed this year. No bill in conference can have more than four additional bills added to it.

In addition, the conference committee is limited by the topic of the bills bundled. Only bills with similar topics/headings can be bundled together. These are often broad categories, bill on courts or criminal procedure but this session there are a number of bills so specific that they are difficult to bundle with other more general topics.

As such, we can anticipate there being less bill bundling this session. Of note will be a court bundled bill, a DUI bundled bill and a sexually violent predator bundled bills. Of most interest to the KBA is the court bundled bill, which will include SB 59 (magistrate judge jurisdiction), HB 2112 (county law libraries), SB 183 (debts owed to courts) and SB 184 (court fees restitution and dormancy).

The following bills are unlikely to be discussed the remainder of the session:

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Making the Push Toward First Adjournment

Posted By Joseph N. Molina III, Tuesday, March 24, 2015

Friday, March 20 marked the end of most committee meetings and the push to first adjournment, which is on Friday, April 3—12 days away.

 

Both chambers finalized their budgets with House Appropriations combining the judicial branch budget with the mega-appropriations budget. The Supreme Court is still underfunded in the House version but nothing that will require furloughing judicial employees this year. The Senate Ways and Means Committee pushed out the judicial branch budget in a single bill. Sen. Jeff King (R-Independence) added docket fee funds, dispositive motion fee funds, and some state general funds to the proposals, but he also recommended that the policy pieces pasted last session continue forward into FY 2016/2017. The idea is to force the court to allow judicial districts the opportunity to control more of their budgets. This recommendation was also a warning shot in response to the Solomon lawsuit filed earlier this year. The Senate proposal was placed into a House bill to allow the House the possibility of a vote to concur without committee hearings on the policy pieces.

 

The KBA had two hearings last week, which include SB 197, applying open meeting requirements to the Supreme Court nominating commission and SB 105 enacting UIFSA. SB 197 was supported by the Kansas Press Association because of the new provision forcing the governor to release the names and city of applicants to the Kansas Court of Appeals. SB 197 was opposed by the KBA, Office of Judicial Administration, Kansas Association for Justice, and Kansas Association of Defense Counsel. There were no oral conferees, all testimony was written. The bill failed to get out of House Judiciary Committee; however, it may come up during conference committees.

 

SB 105 would enact the uniform interstate family support act. The Kansas Judicial Council introduced this bill and the KBA supports this bill. The Committee on Federal and State Affairs heard the bill and passed it out favorably. The passage of SB 105 protects more than $21 million in federal aid for child support enforcement cases.

 

The KBA did not fare as well with its probate and trust proposals as all three failed to pass into law. The Senate Judiciary Committee supports HB 2109 clarifying transfer on death deeds but wants more time to craft an amendment. That pushes the issue into the summer and off till next January. The Senate Judiciary Committee also felt that HB 2101 making ADR/mediation enforceable in trust documents was unnecessary as it is current uses without the need of a new statute. Finally, HB 2102 never got a hearing in the House and died at Turnaround.

 

The KBA did push out three bills this week. They include:

These bills are uncontroversial and should be passed on to the governor prior to the first adjournment deadline.

 

Also, an undisclosed member of House Appropriations Committee introduced HB 2411.

This bill would abolish the current Court of Appeals and replace it with a Court of Criminal Appeals and a Court of Civil Appeals. This idea was introduced two years ago by former Rep. Lance Kinzer.

 

HB 2073 also failed to get a hearing and move forward in the process. As you remember HB 2073 deals with retirement ages of judges in Kansas.

Finally, the next two week both chambers will be on the floor debating and passing bills. This will also allow them to conference on a number of bills amended by either chamber. During this period it is common for issues to be incorporated into amended legislation. This is truly the "sausage-making” portion of the session. The KBA Advocate will be providing updates as we move toward First Adjournment.

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Slow Start to Second Half

Posted By Joseph N. Molina III, Tuesday, March 10, 2015

Legislators got very little down in week 7. The big news was the confirmation hearing of Kathryn Gardner and the release of the K-12 funding block grant proposal.

 

The Gardner confirmation was straightforward with little controversy. The two-day confirmation saw only five of the 11 senators on the committee even ask a question. Two of which only asked one question. Gardner had several character witnesses testify in her favor. In the end, the committee recommended that Gardner be confirmed on a voice vote with no opposition. Gardner now moves to the full Kansas Senate for final confirmation. Unless something dramatic or unanticipated happen,s Gardner’s confirmation to the Kansas Court of Appeals is a mere formality.

 

Chairman John Barker had set HCR 5013 for hearing next Wednesday, March 11 at 3:30 p.m. in House Judiciary Committee. HCR 5013 would alter the Supreme Court Nominating Commission by allowing attorneys to elect four members, the governor to appoint five members, and the legislature to appoint six members., However, Barker has decided to pull the bill and cancel the hearing. No word if he will reschedule or not.

 

The KBA will testify on five bills next week. These include:

HB 2101 would be a new section in the Uniform Trust Code that makes ADR provisions enforceable. The KBA testified in support of this bill. HB 2101 passed out of the House 121-0.

HB 2109 clarifies the transfer of ownership in property when the grantor issues a transfer of death deed naming two or more beneficiaries. The bill is designed as an anti-lapse provision allowing the property to vest in the beneficiary’s surviving heirs should the beneficiary die prior to the record owner grantor. HB 2109 passed the House 121-0.

 

As for the judicial budget, both the House and Senate subcommittees reviewed the numbers this week. The Senate made one big recommendation, which was to force the judicial branch to self-fund KPERS to the tune of $800,000. The House had some policy recommendations including the repeal of one judge per county and to use the weighted caseload study to determine who gets furloughed first should furloughs be required. Both policy recommendations came from Rep. Craig McPherson, a Johnson County republican.

 

Finally, the school financing proposal is being called the CLASS Act! Hearings are set for Monday and Tuesday next week in House Appropriations Committee beginning at 9 a.m.

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Big Push for First Adjournment

Posted By Joseph N. Molina III, Tuesday, February 24, 2015

This week the action was in the House Judiciary Committee where judicial selection resolutions were passed out favorably. These bills include the following:

Both bills passed on 13-9 votes and are now headed to the House floor. Timing is the issue now. The first major deadline for the session is turnaround on Friday, February 27. All bills not passed out of their house of origin are dead after this date; this does not include concurrent resolutions. It is likely that leadership will use this week to pass bills that would die if left till after the deadline then run the judicial selection bills.

However, the session is a fluid place and things change rapidly. If either of these resolutions comes up for debate, the KBA will mobilize our membership on short order. For those that are interested, please keep an eye out for a "Call to Action” email to be sent via a "KBA Alert.” This email will include links to both resolutions, links to legislators contact information, a sample email to use and talking points if anyone wishes to personally call their representative.

In addition, the KBA testified on SB 197, which makes the Supreme Court Nominating Commission (SCNC) a public body subject to the open records act.

Judge Karen Arnold-Burger, KSAJ, and KADC also opposed this bill. Sen. King believes that SB 197 is a technical fix that expands the transparency of the SCNC. He believes that issues can be fixed with simple changes and that no constitutional issues exist. You can find the KBA testimony online. This bill should be worked in short order.

The separation of powers issue is also very present in the recently filed lawsuit Solomon v. Kansas. Here Judge Solomon claims that last year’s judicial budget omnibus bill is unconstitutional. The lawsuit also claims that the omnibus bill was retaliation for the school finance ruling. Judge Solomon is represented by Pedro Irogonegaray

The Solomon case may very well bleed over into the Judicial Budget for FY 16/17. The subcommittee on agency budgets held a hearing on the judicial branch budget on Thursday, February 19. The judiciary presented a budget requesting an additional $8.5 million. This would be for operations in FY 16. The judicial branch explained that without these added funds the court would be forced to furlough. It is up to the legislature to fund this request or allow the courts to add additional surcharges. How this plays out remains to be seen.

Also, please visit www.ksbar.org to find any bills of interest in the KBA Bill Tracking Chart.

Tags:  2015 Session  budget  judicial branch  legislators  legislature  merit selection  Supreme Court 

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