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.
Kansas elections are conducted by the counties with oversight by the secretary of state’s office. Voter registration application (Español) forms must be submitted to the county election officer where the applicant lives. Kansans may also register to vote or change their registration information online with a valid Kansas driver’s license or nondriver identification card. The deadline to register to vote is the twenty-first day before any election.
Each county chooses its voting system from a list of equipment certified by the secretary of state. A list of what voting system each county uses is kept by the secretary of state. All certified systems must meet the requirements of the national voting system standards. Maps of national and state districts also are available to ensure Kansans have all the information they need about voting matters.
This brochure describes requirements for accessibility for people with disabilities. It was created by the Disability Rights Center and funded by the Kansas Secretary of State.
Kansas allows voters to cast their ballots through advance voting. Any registered voter can vote by mail or in-person prior to Election Day. To vote by mail, voters should contact their county election officer and request an advance ballot application. Advance ballots are mailed to voters starting 20 days before the election and must be post-marked on or before Election Day and received no later than three days after the election. Voters can also hand-deliver their advance ballot to the county election office or any polling location within their county by the close of polls on Election Day. Kansas voters may also vote in person at the county election office starting the Tuesday before Election Day, or up to 20 days before the election, depending on the county. Voters who are ill, disabled or not proficient in English may receive assistance in applying for and casting advance ballots.
Important 2020 Election Advance Voting Dates
• Tuesday, July 14 (TODAY!)– Last day to register to vote for the Primary Election.
• Wednesday, July 15 – First day advance ballots are mailed and in-person advance voting may begin. Contact your county election office to find out when and where.
• Tuesday, July 28 – Deadline for voters to apply for advance ballots to be mailed for the Primary Election.
• Tuesday, August 4 (PRIMARY ELECTION) – Advance ballots must be postmarked on or before Election Day and received in the county election office no later than three days after the election. Advance ballots may be hand-delivered to the county election office or to any polling place within the county by close of polls.
• Tuesday, October 13 – Last day to register to vote for the General Election.
• Wednesday, October 14 – First day advance ballots are mailed and in-person advance voting may begin. Contact your county election office to find out when and where.
• Tuesday, October 27 – Deadline for voters to apply for advance ballots to be mailed for the General Election.
• Tuesday, November 3 (GENERAL ELECTION) – Advance ballots must be postmarked on or before Election Day and received in the county election office no later than three days after the election. Advance ballots may be hand-delivered to the county election office or to any polling place within the county by close of polls.
If you have questions, call toll-free at 1-800-262-VOTE (8683).
Governor Laura Kelly announced on Monday her allotment plan for FY 21—budget reductions made necessary by the COVID-19 pandemic. The $704 Million allotment plan hits loan repayments to the Pooled Money Investment Board, Human Services Caseload savings, and hits the Coronavirus Response Fund hardest with nearly $430 million in reductions.
Governor Kelly also placed a moratorium on KPERS Death and Disability fees. Those fees are used for long term disability and group life insurance. The moratorium hits all three branches of government to the tune of $46 million for the executive branch, $525K for the judicial branch and $224K for the legislative branch. The D&D moratorium for the executive branch can take effect immediately, but the moratorium for the judicial and legislative branches require legislative approval; the earliest those reductions can be implemented is 2021. In addition, the proposed reductions would have no impact on the day-to-day operations of the court system.
FY 2021 Governor's State General Fund Allotment Plan July 2020
Delay PMIB Loan Payment--FY 2021 (132,166,666)
Additional PMIB Loan--FY 2021 (132,166,667)
State Water Plan--Dept. of Agriculture (1,247,699)
State Water Plan--Kansas Water Office (1,160,000)
EDIF--Crossroads Conversations Project (20,000)
Governor's Allotment Expenditure Reductions FY 2021 Human Service Caseload Savings (146,686,946)
Delayed FY 2022 State Foundation Aid Payment--KSDE (79,345,549)
Replace Higher Education SGF with GEER (26,274,163)
IDD Waiver--FY 2021 Increase (8,958,340)
SB 155 Career & Technical Education--Board of Regents (8,500,000)
Winfield & Lansing Expansion--Department of Corrections (6,089,218)
School Safety Grants--Department of Education (5,000,000)
University of Kansas Medical Center--Cancer Center Research Grant (5,000,000)
All Other Agency-Specific Allotments (40,033,935)
KPERS Death & Disability (D&D) Moratorium--Exec. Branch (46,687,965)
Coronavirus Relief SGF Savings (1,932,543)
Kansans rely on the Kansas court system for fairness and justice under the rule of law. Because judges are the gatekeepers of the court system, it is imperative that judges exhibit certain qualifications, including:
• Integrity: A judge should be honest and committed to the rule of law.
• Professional Competence: A judge should have extensive legal knowledge.
• Judicial Temperament: A judge should be neutral, respectful and composed.
• Experience: A judge should have a strong record of excellence in the law.
• Commitment to Service: A judge should be committed to all aspects of the administration of justice.
In Kansas, openings on the Supreme Court are filled using the merit selection process. Under this process, established in the Kansas Constitution in 1958, when a vacancy is open on the Kansas Supreme Court, the nonpartisan Kansas Supreme Court Nominating Commission reviews applications, conducts public interviews and submits a list of three qualified candidates to the governor. The governor chooses one of the three to appoint to the open judicial seat. The governor has 60 days to select a candidate from those three nominees.
To be considered as a candidate for judicial office, an applicant must be a licensed attorney in Kansas over the age of 30, and must have been active as a lawyer, judge or teacher of law at an accredited law school for at least ten years.
The Supreme Court Nominating Commission has nine members—one lawyer and one non-lawyer from each of the state’s four congressional districts, plus an additional lawyer who serves as the commission’s chair. Lawyer members are elected by their peers (active Kansas attorneys), and non-lawyer members are appointed by the governor. To clarify, the Kansas Bar Association is not involved in the Supreme Court Nominating Commission. The KBA does not appoint any lawyer members to this commission. The members of the commission come from diverse backgrounds.
The 14 judges of the Kansas Court of Appeals are, like the Supreme Court justices, appointed by the governor. However, instead of choosing from a slate of candidates recommended by a nominating commission, the governor is free to nominate anyone—as long as the nominee is a licensed attorney in Kansas between the ages of 30 and 70, and has been active as a lawyer, judge or law professor for at least ten years at an accredited law school. The governor’s nominee is then subject to confirmation by the Kansas Senate (K.S.A. 20-3020 et. seq.).
This will be the third supreme court justice to retire under the Kelly Administration. Gov. Kelly has replaced Chief Justice Lawton Nuss and Justice Lee Johnson. Kelly appointed Justice Evelyn Wilson and Justice K.J. Wall, respectively. This appointment will be decided by the Kansas Supreme Court Nominating Commission.
The Commission was established in 1958 when Kansas voters supported an amendment to the state's constitution. Whenever a vacancy occurs on the Court, the commission is tasked with presenting the governor with a slate of three qualified candidates. The governor interviews the candidates and makes the appointment. This process, known as merit selection, is used by Kansas and 21 other states, along with the District of Columbia, for selecting all members of their highest court.
In the coming month, Gov. Kelly will also nominate two lawyers for the Kansas Court of Appeals. Those positions became available when Judge Steve Leben and Judge Joseph Pierron announced their retirements earlier in the spring. In early June, the Kansas Senate rejected the Governor’s first nominee, Carl Folsom; that action will restart the clock for the appointment. The second appointment was stalled due to COVID-19 concerns, but we can expect those appointments to take place this fall as well.
Late last week the Kansas Legislature adjourned for 2020 after a two-day Special Session. The Special Session became necessary when Gov. Laura Kelly vetoed COVID-19-related legislation on May 26th. The 2020 Legislative Regular, Veto and Special Sessions saw a significant decrease in legislation passed. It could be argued that 2020 was the least productive session in Kansas history, with fewer than 20 bills approved. On the flip side, we witnessed an increase in the number of issues vetoed by the governor or rejected by the legislature. For instance, Gov. Kelly vetoed HB 2054 which was the Omnibus COVID-19 response bill which forced the Special Session.
The Governor also vetoed:
• HB 2510 that contained education legislation
• HB 2619 which created a loan program for economic recovery, and
• HB 2702 dealing with property valuation
The legislature rejected two of Gov. Kelly’s executive reorganization measures. One reorganization effort would have combined DCF with KDADS; the other would have created the Energy Office. Finally, the Kansas Senate rejected the Court of Appeals nomination of Carl Folsom. The Governor will need to nominate a new candidate to fill the Court of Appeals vacancy.
The legislature was able to reach a compromise with the Governor’s Office on a new COVID-19 measure. That bill—HB 2016—was negotiated by the Governor’s office and legislative leaders. The rank and file members were not privy to these discussions. HB 2016 contains legislative oversight for federal COVID funds, new limitations on the Governor’s powers to close schools and businesses, immunity for healthcare groups and some businesses, product liability protection and extension of certain executive orders.
The bill extends the emergency declaration until Sept. 15th. The governor can extend that date for 15 days with the approval of the State Finance Council. The governor can close schools, but local school boards will have the authority to override her decision. Closing businesses will be left to county commissioners and local health officials.
The bill also creates Contact Tracing Privacy Act to protect the privacy of individuals whose information is collected through contract tracing measures. Contact tracing will not be mandatory, and those refusing to engage in contact tracing will be immune from liability.
Finally, the bill creates a provision that protects notarial acts (notarized signatures) performed via electronic means during the emergency declaration. This creates a safe harbor for remote notaries.
With the adjournment of the 2020 legislative session legislators will return to their districts to begin the campaign season. All 125 house seats are up as are all 40 State Senate seats. We will also have four congressional races and a very significant U.S. Senate race.
As I write this report, the Kansas Legislature is preparing to enter its 24th Special Session—and only the third this century. Gov. Laura Kelly called the Special Session to deal with the Kansas Emergency Management Act. Last week, Gov. Kelly vetoed Senate Sub for HB 2054 which would have significantly amended KEMA. The bill also would have provided funding oversight for the Coronavirus Aid, Relief and Economic Security Act, granted immunity to business and healthcare groups, extended certain executive orders, and allowed the use of tele-medicine.
Once the bill was vetoed, the governor issued a new emergency declaration—a necessary action since the previous declaration was set to expire at midnight on May 26th. The new declaration removed the Ad Astra Statewide Reopening Plan and placed that authority with county governments. Going forward, county commissioners are to decide whether to place any limits before reopening. For instance, Riley County is now open with some restrictions.
The new declaration extends certain executive orders. Those include the use of remote notaries and witnesses to act via audio-visual communication, extends the deadline for tax payments, suspends rules related to the sale of alcohol and extends telemedicine criteria. The latest declaration is set to expire on June 10th.
The legislature will need to negotiate with the Governor’s office on changes to KEMA during the Special Session while negotiating the COVID-19 response that has now moved to local governments. Many legislators advocated for more local control to deal with the pandemic. It will be interesting to see how much legislating takes place when a large issue has been resolved in their favor.With the emergency declaration set to end on June 10th,legislators have a week to move issues to the governor’s desk. One weekmay be sufficient to sort out the problems and come to a mutually beneficial product, but that is not a guarantee.
One major issue is that the legislative process must start anew; there are no “carry-over” bills. Each bill will have to be introduced and move through the legislative process again, which will eat up valuable time. Another issue is deciding what bills actually get worked. KEMA and the emergency declaration are the reasons for the special session, but the legislatureis not restricted to address only those matters. Lawmakers can choose to take up any issue. While unlikely due to the time crunch, they could decide to debate abortion or Medicaid expansion, tax cuts or budgetary issues. The list could grow exponentially. Finally, the Kansas Senate may attempt to confirm the Governor’s Court of Appeals nominee, Carl Folsom. That could get political and drag the special session out even longer.
How the legislature deals with the special session remains to be seen, but given the election year consequences, anything can happen.
Finally, Gov. Kelly has called for a Special Session to begin on June 3rd. The intent for the special session would be to review the emergency management act, but other issues are certain to be discussed. Since this is a special session the legislature cannot override the Governor’s veto. In addition, all legislation would have to start fresh. There will be no carry over bills from the 2020 session. See; http://www.kslegislature.org/li_2016s/documents/info_ks_spec_session_ro.pdf
The KBA will again be interested in making remote notaries permanent, allowing the court to continue use of video conferencing and reviewing any tort reform measures.
The 2020 Kansas Legislature adjourned Sine Die at 8am Friday, May 22nd.The legislative day lasted a full 24 hours, having started at 8am on May 21st. The entire 24 hours were littered with political gamesmanship, the use of legislative maneuvers and, as Rep. John Carmichael (D-Wichita) argued, simple bushwhacking.
The largest bill for the day was the COVID bundle incorporated in Conference Committee Report for HB 2054. This bill includes provisions dealing with CARES funding, Emergency Management Act oversight; liability protections for healthcare, businesses and products; extension of executive orders until 2021; and nursing home oversight. The KBA was most interested in the extension of the executive orders for remote notaries and use of audio visual, both of which were added to the CCR. The KBA opposed the immunity protections added to the bill.
The session was hampered by the Sine Die deadline which forced legislative leaders to rush legislation. When the minority party began an informal filibuster, a member of Senate Leadership cut off debate by “calling the question”. This maneuver of “calling the question” was made on every subsequent bill to deny the minority party the opportunity to delay the process.
When this procedure’s effectiveness waned, the Senate decided to move all remaining issue to a conference committee that only requires a simple up or down vote.
The Conference Committee process was as contentious as the floor debate. This caused added delay and frustration on all sides that lead to a motion to “agree to disagree”. This motion effectively removes the minority party from the conference committee. The motion passed on party line, and the conference committee was able to negotiate the bill without democrats agreeing to the final product. This is how CCR for HB 2054 was developed.
CCR 2054 was debated at 5:30 a.m. by the Senate, which passed it 27-11, and at 6:45 a.m. by the House which approved it 76-34. The Kansas House was able to debate this conference committee report because its leadership extended the Midnight Rule to 8 a.m. The final bill has been enrolled with the Governor, who has 10 days to sign, veto or allow it to become law without her signature.
This bill gives the Legislative Coordinating Council authority over federal funding Kansas receives from COVID relief, rather than the office of the Governor. HB 2054 also authorizes the LCC to review COVID-related expenses incurred by state agencies.
This provision applies to both the $1.2 billion Coronavirus Relief Fund and to any federal funds received under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Families First Coronavirus Response Act (Families First Act), the Paycheck Protection Program and Health Care Enhancement Act, and any other federal law that provides moneys to the state for aid for coronavirus relief.
HB 2054 also makes several changes to the Kansas Emergency Management Act (KEMA). It ratified and confirmed the Governor’s March 12, 2020, disaster declaration through May 1, 2020 and ratifies and continues through May 31, 2020, the state of disaster emergency declared by the Governor on April 30 and extended by the State Finance Council through May 26, 2020. Without this action, the emergency will expire on May 26th.
The bill further prohibits the Governor from declaring any new COVID-19-related state of disaster emergency during 2020. To proclaim a new state of disaster emergency, the Governor will first have to make specific application to the State Finance Council, and an affirmative vote of six of the legislative members would be required, to order the closure or cessation of any business or commercial activity.
HB 2054 allows the Board of County Commissioners of any county to issue an order relating to public health that contains provisions that are less stringent than the provisions of a statewide executive order issued by the Governor. Any Board of County Commissioners issuing such an order would be required to make a finding, based upon advice from the local health officer or other local health officials, that the scope of provisions in the Governor’s executive order are not necessary to protect the public health and safety of the county to be implemented in the county.
The bill makes several changes regarding the Governor’s authority to issue executive orders in a disaster emergency and changes the penalty for violating orders from a crime to a civil penalty. It also amends some statutes regarding local health officials.
The bill provides immunity in certain COVID-related cases for health care providers, businesses and products. These would include nursing homes and adult rehabilitation facilities. The bill DOES NOT provide for premises immunity.
• Health care immunity - The bill would state, notwithstanding any other provision of law, a healthcare provider is immune from civil liability for damages, administrative fines, or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed, or withheld, as a direct response to any COVID-19 state of disaster emergency under the KEMA.
• Business Immunity - The bill would state that, notwithstanding any other provision of law, a person (or agent of such person) conducting business in Kansas shall not be held liable for a COVID-19 claim if the act or omission alleged to violate a duty of care was mandated or specifically and affirmatively permitted by a federal or state statute, regulation, or executive order passed or issued in response to the COVID-19 pandemic and applicable to the activity at issue at the time of the alleged exposure. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
• Product Immunity - The bill would state that, notwithstanding any other provision of law, a person who designs, manufactures, sells, distributes, provides, or donates a qualified product in response to the COVID-19 public health emergency shall not be liable in a civil action alleging a product liability claim involving the product if any of the above actions were taken at the specific request of or in response to a written order or other directive finding a public need for a qualified product, issued by the Governor, Adjutant General, or Division ofEmergency Management, and the damages are not occasioned by willful, wanton, or reckless disregard of a known, substantial, and unnecessary risk that the product would cause serious injury to others. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
The bill also includes provisions addressing notarial acts and court videoconferencing. HB 2054 extends the Chief Justice’s authority created under SB 102 to issue administrative orders that allow for the use of audio-visual technology in courtrooms. The court will retain this authority until the state of emergency ends plus an additional 150 days.
• Notarial Acts - The bill would create a new section of law, outside the Revised Uniform Law on Notarial Acts (RULONA), stating that notarial acts performed by a Kansas notary public while the personal appearance requirements are suspended pursuant to an executive order or other state law, shall be valid as if the individual had met the personal appearance requirement, even if the individual failed to do so, as long as the notarial act fulfills all requirements prescribed by the executive order or other state law and all other requirements not relating to personal appearance.
• Video Conferencing- The bill would amend a provision enacted in 2020 House Sub. for SB 102 to allow the Chief Justice of the Kansas Supreme Court to issue an order authorizing the use of two-way electronic audio-visual communication (videoconferencing) in any court proceeding, when the Chief Justice determines such action is necessary to secure the health and safety of court users, staff, and judicial officers, by removing language limiting application of this provision to periods during any state of disaster emergency under KEMA.
The Kansas Legislature is gearing up for the May 21st Veto Session. The one-day veto session has manufactured a sense of urgency among key committees and forced them back into action to prepare for the session. The goal is to have bills in a position to be voted on when session reconvenes. For that to happen, committees need to vet proposals and build new bills using the shells of discarded ones from the regular session.See;https://kasb.org/legislature-to-reconvene-on-final-day-of-session-may-21/
Thus far, House Commerce, Tax, and Judiciary committees have met to work up COVID-19 related items. Judiciary held a 2-hour plus information hearing last Wednesday on immunity for COVID claims. You can watch the entire hearing here - https://www.youtube.com/watch?v=D3ZhwJRwvbg. The testimony was addedto our KBA Legislative page.
In addition to COVID-19 related items, the Senate Judiciary Committee will take up HB 2447 dealing with the use of audio-visual technology in courtrooms and HB 2713 concerning remote notaries. Both items were near the end of the legislative process when the “stay at home” order forced everything to close. The KBA has supported these items since they were introduced and will continue to support them during the Senate hearing.
There will need to be one amendment to HB 271 to ensure that remote notaries performed during the emergency declaration are deemed valid. Both items should pass out of the Senate Judiciary Committee. The sole complication is timing and whether there is enough time to get both bills passed out of the Senate.
Time is a critical issue for legislators during this one-day session. The list of possible legislation is long and includes complex issues that normally require years to pass. The effort to amend the emergency management act should require an interim study. But legislative leaders are intent on pushing it through in one day. COVID liability is another issue that should be discussed in an interim—an idea proposed by Rep. Pam Curtis (D-Wyandotte)—but there is a real possibility that a proposal will be moved out of both chambers and sent to the governor. See;https://www.cjonline.com/news/20200512/kansas-coronavirus-update-senate-house-step-into-web-of-covid-19-tax-liability-and-budget-issues
This week is shaping up to be a grueling one. Both sides have dug in on several issues with the final outcome still in limbo. The one constant is that the governor is in a strong position since she holds a veto stamp with no opportunity for the legislature to override it. This may force opposing sides to negotiate and compromise, resulting in a product that neither is satisfied with, but which allows the state to move forward. Such is the practical outcome of legislation crafted in a rush.
You can watch real-time updates of the veto session by following @KansasBarLeg.
Disagreement with that decision was brought by Senate President Wagle and Majority Leader Denning, both of whomfavored a three-day veto session. Their goal was to pass legislation to provide oversight on the $1.2 billion CARES act federal funds, implement changes to the emergency management act and provide liability protection for businesses dealing with COVID-19. See;https://twitter.com/JimDenning4KS/status/1258473610664173568/photo/1
The LCC voted down the three-day proposal, as the majority of the committee felt these issues needed more vetting and did not want to rush legislation that could have unintended consequences. The LCC then decided to return on May 21, Sine Die for a one-day veto session.In response, senate leadership directed four committees to begin meeting as soon as possible: Judiciary, Commerce, Tax, and Financial Institutions and Insurance. The idea is to have proposed legislation vetted and in a position to be voted on May 21st.
Senate Judiciary Committee will meet for three consecutive days beginning on May 18th. These meeting will be in-person and held in the Old Supreme Courtroom on the third floor of the Capitol starting at 9:30 a.m.
House Judiciary Committee will meet via Zoom, streamed throughYouTube, on May 13th, May 15th and May 18th. Meetings will begin at 3:30p.m. The House will take a broader look at the COVID-19 issues at play, discuss emergency management authority and deal with the KORA exceptions bill from the regular session.
Of interest to the KBA is a COVID-19 liability proposal. The idea has been moving throughout the states and would provide businessesthat are now reopening protection from COVID-19 related lawsuits. The KBA has been invited and plans to participate in both committee meetings.
The KBA will also advocate to make permanent the use of audio-visual technology in courtrooms and use of remote notaries. Both are needed to continue social distancing measures and protect vulnerable individuals from the virus. Whether those issues pass on the only day of veto session remains to be seen.