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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: Author: Joseph N. Molina III  2019 Session  2019-20  legislature  budget  election  Brownback  Supreme Court  Judicial Branch  school finance  Court of Appeals  Gannon  Hard 50  Kansas Supreme Court  Special Session  2016 Session  2017 session  2017-18  Alleyne  Fall Legislative Conference  merit selection  SCR 1610  Senate  Sine Die  State of the Judiciary  2019 Golf Tournament  2020 legislative session  abortion  Caleb Stegall  conference 

Supreme Court Interviews

Posted By Joseph N. Molina III, Tuesday, October 15, 2019

 

On October 17 & 18 the Kansas Supreme Court Nominating Commission will meet to interview candidates for an opening on the Kansas Supreme Court. This new justice will succeed Justice Lee Johnson on the Court.

Each of the 19 applicants will sit for a 30-minute interview. The list of applicants can be found here: http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/091819a.pdf. To be eligible, an applicant must be at least 30 years of age, a lawyer admitted to practice law in Kansas, and engaged in the practice of law for at least 10 years, whether as a lawyer, judge or a full-time professor at an accredited law school. Applicant biographies may be reviewed here: http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/091819b.pdf

The Commission is a 9-person panel with 5 lawyers and 4 non-lawyers. The commission members can be found here:   http://www.kscourts.org/pdf/SCNCroster.pdf. The commission will be working under some new guidelines this session because the laws concerning commission meetings were amended recently. Those new laws make these interviews open meeting and subject to the KS Open Meetings Act. However, there are some differences in that the nominating commission can only enter executive session to discuss financial issues and KBI background check information. The commission has set a few guidelines of their own which can be found here: http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/091819c.pdf

The Supreme Court Nominating Commission is an independent body. Four of its members are appointed by the governor and represent each of the state’s four congressional districts; these appointees are not attorneys. Four more members are attorneys—elected by other attorneys within each of the congressional districts. The commission chair is an attorney elected by attorneys in a statewide vote.

The Commission reviews each applicant’s:

o   Legal and judicial experience

o   Educational record

o   Character and ethics

o   Service to the community

o   Impartiality

o   Respect for colleagues

The Commission will nominate the three most qualified applicants. Governor Laura Kelly will select one of the three nominees to be the next Kansas Supreme Court Justice.

The KBA will monitor the interviews and provide an update in the next Advocate.

Good luck to all.

Tags:  2019 Kansas Supreme Court nominees  Author: Joseph N. Molina III  judicial nominating process  Supreme Court Nominating Commission 

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Special Committee on Judiciary

Posted By Joseph N. Molina III, Tuesday, October 8, 2019

Special Committee on Judiciary

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 jmolina@ksbar.org to register.

Tags:  Author: Joseph N. Molina III  judiciary  special committee 

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A Hectic Ten Days

Posted By Joseph N. Molina III, Tuesday, September 24, 2019

The KBA will be busy the next week and a half. We will first welcome our newest attorneys to the practice of law this Friday, September 27th.  Over 80 new lawyers will be sworn-in during two separate ceremonies at the Kansas Supreme Court. Among the new admittees is former KBA staffer Jennifer Salva. See; http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/092019.pdf

The KBA will then testify on judicial selection issues during the Special Committee on Judiciary on Oct. 1-2, 2019. The Judiciary Interim Committee will also cover Hodes Nauser, MDs. P.A. vs Schmidt (abortion case) and Hilburn v. Enerpipe Ltd. (noneconomic damages case). See; http://www.kslegislature.org/li/documents/interim_schedule.pdf; for a list of committee members: http://www.kslegislature.org/li/b2019_20/committees/ctte_spc_2019_judiciary_1/

On October 2nd the KBA will host its Trivia Night Fundraiser for Kansas Legal Services (KLS). The event will pit Washburn Law School against KU Law School in a battle of wits. The trivia contest will take place at the Historic Harley-Davidson. If you’re interested you can find more information here - https://www.ksbar.org/event/LawSchoolTrivia2019

The KBA will also attend the Wichita Bar Association’s Judges’ Day on October 3rd. WBA Judge’s Day will include a Golf Tournament, Tennis/Pickle Ball matches, a Bike Ride, an event at the Wichita Brewery and a BBQ at the Botanical Gardens. See; https://www.wichitabar.org/page/UpcomingEvents

The KBA will then meet with its Board of Governors on Friday October 4th at the WBA.

Finally, the 10-day run will end with the Investiture Ceremony for Rachel L. Pickering. Judge Pickering will be officially sworn-in at 3:00 p.m. on Friday, October 4th at the Shawnee county Courthouse.

Tags:  abortion  Author: Joseph N. Molina III  Fall new admittees  Hilburn v. Enerpipe Ltd.  judicial selection  KBA Trivia Night  non-economic damages 

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Good Times • Dodge City

Posted By Joseph N. Molina III, Monday, September 16, 2019

Last week the KS Bar Association was invited to join members of the SW Kansas Bar Association in Dodge City for their Annual Conference. It was a wonderful time. The SW Bar provided excellent programming with an eventful reception at Boot Hill Museum. Things are happening at the Boot Hill museum as they add-on to the famous landmark with other features. Construction is moving ahead quickly.

We at the KBA would like to thank the SW Bar for the invitation. We would like to personally thank Lane Frymire, Sarah Heeke, Tom Black and Robert Bauer for a great two days. Also, special thanks to Rose Marquez and Barb Archuleta from Doll Law Firm and Deidra Mason from Bauer, Pike, Bauer, Wary & Caroll, LLC for helping make the CLE run so smoothly.  Looking forward to 2020.

This week the KBA heads up to Concordia, KS for the 12th Judicial District Bench & Bar CLE. We are being hosted by Chief Judge Kim W. Cudney at the St. Joseph Nazareth Motherhouse. If you’re in the area swing on by and say hello.

Tags:  Author: Joseph N. Molina III  Boot Hill Museum  Dodge City  SWKS Bar Association 

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20 Weeks Until the 2020 Session

Posted By Joseph N. Molina III, Tuesday, August 27, 2019
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The 2020 Session is approaching quickly. Summer break has ended, and Kansas lawmakers are attending Interim Committees. These committees will focus on a variety of issues such as criminal justice reform, retail electrical rates, and KanCare Oversight. However, bigger issues are on the horizon.

The legislature will look at several proposals in 2020 that may end up on the election ballot.

Merit Selection will be debated in 2020 ,with its opponents hoping to get a constitutional amendment on the ballot. There is currently a proposal in the Kansas Senate, SCR 1610, that would change Article 3 from a merit selection process to a governor appoint/senate confirm model. This is the process used for the Kansas Court of Appeals—the same process used this past session by Gov. Kelly that has renewed the debate on judicial selection. While SCR 1610 is on the table, it may not end up being the proposal championed by opponents of merit selection. The Kansas Legislature will hold interim committee meetings this fall to get the ball rolling. The KBA has a long-standing policy supporting merit selection for Kansas Appellate Courts.

Also, look for a debate on abortion in 2020.  The Kansas Supreme Court ruled this past April that the Kansas Constitution protects a women’s right to an abortion. In a 6-1 ruling the court held that the constitution protects all Kansans’ natural right to personal autonomy. This ruling has re-invigorated anti-abortion groups who would like to see this outcome changed at the polls through a constitutional amendment. See; https://www.cnn.com/2019/04/26/politics/kansas-supreme-court-abortion-ruling/index.html; See also; https://www.kansas.com/news/politics-government/article229693509.html

We may also see a debate on whether the legislature may impose limits on the amount of money a person can receive for non-economic injuries. This debate is also spurred by a Kansas Supreme Court ruling in the past year. The ruling, Hilburn v. Enerpipe Ltd, dealt with a car accident. The Court found that the state’s non-economic damages cap of $325,000 violated the plaintiff’s right to have a jury determine compensation owed the injured. See; https://www.kansascity.com/news/state/kansas/article231561483.html

Supporters of a statutory cap would also like to see the constitution changed to allow the legislature to limit the amounts recovered for non-economic injury.

These are very large issues to tackle in an election year. They are wide ranging, with a multitude of interested parties—sometimes overlapping interest groups—that will require significant study over a relatively short period of time. How many amendments make it to the ballot remains to be seen, but it it sets the stage for an interesting 90 days in 2020.

 Attached Thumbnails:

Tags:  2020 Legislative Session  abortion  Author: Joseph N. Molina III  Hilburn v. Enerpipe  merit selection  noneconomic damages  noneconomic injury cap  SCR 1610 

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The Places We Will Go — KBA This Fall

Posted By Joseph N. Molina III, Monday, August 12, 2019
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Each fall the KBA heads out of Topeka to visit lawyers across the state. In the past, we have visited Liberal, Washington County, Salina and Hays.

This fall is no different, as we have plans to visit the Johnson County Bar on Sept. 4th for its monthly luncheon. I will provide a short update of the 2019 legislative session and some possible issues going into 2020. The luncheon is set for 11:45 at the Double Tree Hotel in Overland Park. See; https://www.jocobar.org/events/EventDetails.aspx?id=1207495

The following week, the KBA will head down to Dodge City for its Annual Southwest Kansas Bar Association Meeting. This is a great two-day event with a wonderful reception at Boot Hill Museum on Sept 12th and a full slate of CLEs on Sept 13th. If you’re in the area, please stop by and say hello. See; https://www.eventbrite.com/e/2019-southwest-kansas-bar-association-annual-meeting-tickets-65178341173?aff=ehomecard

The KBA will also participate in the Washburn Law School Golf Classic and Ethics CLE on Sept 19th. Hosted by the Washburn University Alumni Association and Foundation, it will take place at TopGolf in Overland Park. For more details please visit - https://latest.facebook.com/events/493616918051556/

Finally, the KBA will attend Judges Day in Wichita the first week in October. This annual event includes a Fun Run to the courthouse, a Bike Ride, Pool and Golf Tournament and a Tennis & Pickle Ball match. A wonderful BBQ at the Wichita Botanical Gardens wraps it all up.  For more info - https://www.wichitabar.org/events/EventDetails.aspx?id=1171537

The KBA will hold its Fall Board of Governors Meeting on October 4th.  If you would like to learn more about this meeting, please visit the KBA website at www.ksbar.org/event/BOGFall2019

 Attached Thumbnails:

Tags:  Author: Joseph N. Molina III  Fall 2019 KBA Board of Governors Meeting  Johnson County Bar lunch  Judges Day in Wichita in October  Southwest Kansas Bar Association Meeting  Washburn Law School Golf Class and Ethics CLE 

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Chief Justice Lawton Nuss Announces Retirement

Posted By Joseph N. Molina III, Tuesday, July 30, 2019

In a somewhat surprising announcement, Kansas Chief Justice Lawton Nuss revealed his intent to retire from the Kanas Supreme Court on December 17, 2019. Chief Justice Nuss has served on the Court for 17 years, the last nine as Chief Justice.

 

Chief Justice Nuss stated “"I consider my service on the Supreme Court to be the greatest privilege of my 37-year legal career. It has given me the honor of working with the nearly two thousand dedicated people―judges and employees alike―of the judicial branch of government. I am extremely proud of what all these good folks have accomplished for their fellow Kansans."

 

Chief Justice Nuss is a graduate of the University of Kansas School of Law and a veteran of the United States Marine Corp. He plans to continue working on projects aimed at assisting veterans.

 

Justice Marla Luckert, the next most senior member of the Supreme Court, will take over as Chief upon Chief Justice Nuss’s retirement.

 

Chief Justice Nuss stated “"I consider my service on the Supreme Court to be the greatest privilege of my 37-year legal career. It has given me the honor of working with the nearly two thousand dedicated people―judges and employees alike―of the judicial branch of government. I am extremely proud of what all these good folks have accomplished for their fellow Kansans."

 

Chief Justice Nuss is a graduate of the University of Kansas School of Law and a veteran of the United States Marine Corp. He plans to continue working on projects aimed at assisting veterans.

 

Justice Marla Luckert, the next most senior member of the Supreme Court, will take over as Chief upon Chief Justice Nuss’s retirement.

 

The justice who is senior in continuous term of service shall be chief justice, and in case two or more have continuously served during the same period the senior in age of these shall be chief justice”. Kansas Constitution, Article 3, Section 2.

 

You can read Chief Justice Nuss’s letter to Governor Kelly here - http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/072619add.pdf

Tags:  Author: Joseph N. Molina III  Chief Justice Nuss  Chief Justice retirement  Kansas Constitution Article 3 Section 2  Lawton J. Nuss 

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Kansas Supreme Court accepting nominations for upcoming Court vacancy

Posted By Joseph N. Molina III, Tuesday, July 23, 2019

Today, the Kansas Supreme Court will begin accepting nominations to fill a position on the Kansas Supreme Court when Justice Lee Johnson retires on September 8, 2019.

Eligible applicants must be:

  • at least 30 years old; and
  • be a lawyer admitted to practice in Kansas and engaged in the practice of law for at least 10 years, whether a lawyer, judge or full time teacher at an accredited law school.

If interested, find the nomination form here: http://www.kscourts.org/pdf_inc/SCNC_Application_Form.pdf

Nominations may be hand-delivered or submitted via mail to:

Douglas T. Shima
Clerk of the Appellate Courts
Kansas Judicial Center
301 SW 10th Ave. Rm. 107
Topeka KS 66612-1507

Nominees will be reviewed by the Kansas Supreme Court Nominating Commission,  a nine-member commission with one lawyer and one non-lawyer from each congressional district, and one lawyer elected by lawyers statewide to be chairperson.

Tags:  Author: Joseph N. Molina III  Justice Lee Johnson retirement  KS Supreme Court Nominating Commission  Supreme Court vacancy 

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Interims 2019

Posted By Joseph N. Molina III, Tuesday, July 16, 2019

Every session there are proposals that fail to advance through the legislative process. Some lack the necessary attention; others are passed over for other, more pressing matters. However, a few need extra work—more eyes on the idea, if you will. The process to review and study proposals is handed off to interim committees. These committees, composed of legislators appointed by leadership, undertake the additional task of reviewing specific aspects of proposals over the summer and fall. The committee can be a joint venture with members from both chambers, or it can be set up for members from one chamber. The Legislative Coordinating Council establishes these interim committees, determines the issues for study and helps schedule meetings.

This summer, the LCC has agreed to study judicial selection. Sen. Ty Masterson (R-Andover) introduced a constitutional amendment that would alter how justices are selected in Kansas. Masterson requested an interim committee on the subject, and last week, the LCC granted a two-day review.

This interim committee will examine the process for selecting judges/justices in Kansas as well as a review of recent Kansas Supreme Court decisions. Speaker of the House Ron Ryckman (R-Olathe) requested the review of decisions.

This interim committee, comprised of both Senate and House judiciary committee members, will look at Kansas Supreme Court decisions and whether those decisions were influenced by the process for selecting justices.

Some are concerned that recent, controversial court opinions on abortion (Nauser & Hodes case) and noneconomic caps (Hilburn v. Enerpipe LTD) would have been decided differently had there been a different selection model in place.

See; https://www.cnn.com/2019/04/26/politics/kansas-supreme-court-abortion-ruling/index.html; See; https://www.kansas.com/news/local/crime/article231563733.html

Suffice it to say that this interim committee will dive deep into these issues and become, no doubt, a controversial part of the interim committee schedule.

You can find additional info on interim committees here - http://www.kslegislature.org/li/documents/interim_schedule.pdf

Tags:  Author: Joseph N. Molina III 

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2020 Elections

Posted By Joseph N. Molina III, Tuesday, July 9, 2019

Kansas elections season is a year off, but things are already picking up steam. In 2020 all 125 House seats are up for elections as are all 40 Kansas state senate seats. However, the top of the ticket race will be the U.S. Senate seat, where Republicans have dominated. It has been four score and seven years since Kansas sent a Democrat to the U.S. Senate.

However, Kansas Democrats believe 2020 might be there year. See; https://www.kansascity.com/news/politics-government/article227036984.html

They hope to use the Kelly election as momentum in 2020 and hope that a similar opponent awaits them in the general election. See; https://time.com/5622334/kobach-runs-for-senate/; See also; https://thehill.com/homenews/campaign/451971-kris-kobach-to-run-for-senate-in-kansas

However, Kansas Republican have a diverse field of candidates to choose from, including current State Treasurer Jake LaTurner and Kobach’s former running mate, Wichita businessman Wink Hartman. It is also rumored that Kansas Senate President Susan Wagle and Kansas Chamber President Alan Cobb are considering their options. Let’s not forget Rep. Roger Marshall or Kansas AG Derek Schmidt. See; https://www.mcclatchydc.com/news/politics-government/congress/article223934475.html See also; https://www.politico.com/story/2019/07/08/republicans-kobach-senate-run-1573348

On the state side, we will see some high-profile races where current House members seek a senate seat. At present we have Rep. Tom Cox running for the Senate seat held by Sen. Pilcher-Cook, and Rep. Brenda Dietrich running for a seat held by Sen. Eric Rucker. See; https://www.sos.ks.gov/elections/elections_upcoming_candidate_display.asp

These types of races create open seats in the House and allow freshman legislators to have a larger say in House leadership races. How this plays out remains to be seen, but we are sure to hear more about it over the next 12-16 months.

SPECIAL NOTICE

While it may be difficult to think about the 2020 Legislative Session when the 2019 Legislature has just completed its work, perseverance is necessary. Individual members, local bar associations, committees, and sections may all submit proposals. Each proposal will be reviewed by the appropriate section or committee before consideration. The deadline to submit proposals to the KBA is September 15th, 2019. Therefore, it is imperative that you begin drafting your proposal now and submitting it to the appropriate section.

 

The KBA Legislative Committee will meet this November to consider all legislative proposals for the 2020 session.

 

All proposals should be mailed to:
Kansas Bar Association
1200 SW Harrison Street
Topeka, KS 66612

or emailed Joseph N. Molina @ jmolina@ksbar.org

Tags:  2020  Author: Joseph N. Molina III  elections  State Senate Races  U.S. Senate race 

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