Last week 11 members of the House and Senate Judiciary Committee met over two days to discuss abortion rights, caps on noneconomic damages and changes to judicial selection. While seemingly separate and distinct issues these three controversial topics have the Kansas Supreme Court as its nexus. Earlier this year the Kansas Supreme Court found a constitutional right to an abortion in Hodes & Nauser, MDs v. Schmidt. The court also invalidated the statute that caps noneconomic damages in Hilburn v. Enerpipe LTD. Some believe that different justices would have decided these two cases differently thus altering how justices are picked became an issue. See; https://www.hayspost.com/2019/10/08/hawver-debate-brews-over-who-gets-final-say-on-kan-supreme-court-picks/; See also; https://www.hutchnews.com/news/20191001/legislative-hearing-turns-up-heat-for-constitutional-amendment-on-abortion/1
The KBA provided testimony in support of the current method for selecting Kansas Supreme Court Justices. Jim Robinson represented the KBA at the hearing and provided the committee with the most significant scholarship on merit selection. Look for this testimony in the KBA Journal. The KBA took no other position at the hearing. The committee recommended that the issue be studied further in the 2020 session.
To be clear, altering judicial selection in Kansas remains a significant issue. Currently, SCR 1610, which would move Kansas to a Gov. appoint/Senate confirm model, is available to the Committee of the Whole. However, with this recommendation it is possible that SCR 1610 be re-referred to the Senate judiciary Committee for hearing. This committee has 11 members with 9 republicans and 2 democrats. Should SCR 1610 be passed out of Committee it would need 27 votes to pass out of the Senate. The KBA will monitor this issue closely going forward.
The Committee also recommended that the noneconomic damages issue be further studied. There appears to be a difference of opinion on how to read the Hilburn case. Opponents of caps feel that the Kansas Supreme Court invalidated all noneconomic damages caps, including those on medical malpractice. Some believe that the caps on Med Mal still apply since Hilburn was a personal injury case arising from an auto accident. How this is interpreted could affect how state agencies react in the future, think Healthcare Stabilization Fund or maybe even Worker’s Comp. The one constant is that all sides want more time to flush the issue out and wait for a case that could shed light on the court’s reasoning.
This next case will be ruled on by a court seating 2 new justices that did not originally hear the Hilburn case. It is important to remember that the Hilburn case was a close vote and adding 2 new voices to the discussion could swing the pendulum and uphold the cap. These are all simple hypotheticals now because no such case has been appealed and we are months away from adding 2 new justices.
The Special Committee on Judiciary did pay extra attention to abortion portion of the hearing. This issue garnered the most attendees, conferees, questions and news coverage. The committee recommendation asked that the public be allowed to vote on a constitutional amendment overturning the Hodes ruling and finding no right to an abortion in the Kansas Constitution. See; https://www.kansas.com/news/politics-government/article235683267.html; See also; https://www.apnews.com/7c82d606eaaa44b398c82a11157bc781
The issue is already in front of the Legislature (HCR 5004), but it is plausible that a new constitutional amendment be drafted, with hearings scheduled in the early days of the 2020 session. To reach the ballot the measure needs 27 votes in the Senate and 84 votes in the House. Should this issue go down party lines every one of the 84 Republicans in the House would need to vote in favor of the measure to pass. This past session the House sustained Gov. Kelly’s veto on SB 67 dealing with the Abortion Reversal Pill. That vote was 83-41.
For those that are interested you can read the testimony submitted in the Special Committee on Judiciary here - https://www.ksbar.org/page/judicial-services-2019-20
Fall Legislative Conference
If you would like to hear more about caps on noneconomic damages, you are free to attend the KBA Fall Legislative Conference on Nov. 6th beginning at 2pm. Experts will cover the Hilburn case. RSVP to me at email@example.com to register.