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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  Fall Legislative Conference  Gannon  Hard 50  Kansas Supreme Court  Special Session  2016 Session  2017 session  2017-18  Alleyne  merit selection  SCR 1610  Senate  Sine Die  State of the Judiciary  2019 Golf Tournament  2020 legislative session  abortion  Caleb Stegall  conference 

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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2020 Session Already Taking Shape

Posted By Joseph N. Molina III, Tuesday, June 25, 2019

On June 14th the Kansas Supreme Court released two monumental rulings. The first was Gannon v. State and the second was Hilburn v. Enerpipe LTD.

We are all familiar that the Gannon decision refers to the school finance lawsuit that stretches into a decade of legal arguments. This past session, the Kansas Legislature added nearly $360 million to K-12 school funding over the next four years. The legislature was hopeful that the Supremes would find this amount constitutional and end the lawsuit; the legislature got half of its wish. The Court found that SB 16’s financial adjustments to the safe harbor plan brings the State into substantial compliance with previous Gannon rulings. However, the court retains jurisdiction to ensure that the four-year plan is implemented. The court justified retaining jurisdiction by stating:

"[T]he judiciary clearly has the power to review a law and potentially declare it unconstitutional. But this power is not limited solely to review. It also includes the inherent power to enforce our holdings. [Citations omitted.] Without the inherent power to impose remedies and otherwise enforce our holdings, our power to review would be virtually meaningless. See Kjellander v. Kjellander, 90 Kan. 112, 114, 132 P. 1170 (1913) ('The appellate jurisdiction conferred carries with it, by implication, the power to protect that jurisdiction and to make the decisions of the court thereunder effective.')." Gannon II, 303 Kan. at 737-38.

Once the legislature appropriates the remainder of the funds outlined in SBS 16, the Gannon case should come to a close.

The second big case is Hilbrun v. Enerpipe Ltd. This case was widely discussed within the personal injury arena. This case deals with the constitutionality of the State’s cap on noneconomic damages in personal injury actions. In this case, the plaintiff, Diana Hilburn, was awarded a judgment for an auto accident when her truck was rear-ended by a semi owned by Enerpipe Ltd. The jury awarded Hilburn $301,509.14. The judge reduced the award to coincide with the noneconomic cap of $250,000. Under KSA 60-19a02, the cap will increase to $350,000 by 2022. Hilburn appealed on the ground that KSA 60-19a02 is unconstitutional because it violates her right to a jury trial. A plurality of the Kansas Supreme Court agreed with Hilburn and struck down the cap. The final tally was 3-1-2, with Justice Nuss not participating.

This ruling will have far-reaching implications and sets up a legislative fight in 2020. Several powerful special interest groups will attempt to reinstitute the caps with a statutory proposal. Others may attempt to alter the constitutional by proposing a cap be added to the founding document. Either way, this will draw significant attention and money to the 2020 session.

Besides the noneconomic cap battle, we can expect merit selection to be up for debate. We will also see Medicaid expansion grab headlines. The 2019 legislative session may have just ended, but battle lines are already being drawn for 2020.

 Attached Thumbnails:

Tags:  2020 legislative session  Author: Joseph N. Molina III  drafting legislation for next year  Gannon v. State  Hilburn v. Enerpipe  school finance 

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Sign Up Today!

Posted By Joseph N. Molina III, Monday, June 10, 2019
Updated: Friday, June 7, 2019

Sign up today!

Tags:  2019 Golf Tournament  Author: Joseph N. Molina III 

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2019 KBA Golf Tournament!

Posted By Joseph N. Molina III, Monday, June 3, 2019

Sign up today!

 Attached Thumbnails:

Tags:  2019 Golf Tournament  Annual Meeting golf  Author: Joseph N. Molina III  Topeka Country Club 

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Sine Die 2019 -- UPDATE

Posted By Joseph N. Molina III, Thursday, May 30, 2019

The Kansas Legislature had one of the most memorable ends to a session in its history. The day began with Medicaid expansion supporters interrupting the Senate session by singing a hymn and chanting their support for healthcare. This led Senate leadership to clear the gallery, remove news reporters from the senate floor and lock the doors to the senate chamber. This is the first time I have ever seen this action taken. Reporters were told to clear the chamber or lose their press credentials. The chamber remained locked when senate proceedings resumed. It was an interesting start to the day. See; https://media.kansascity.com/livegraphics/2019/pdf/WagleLtr052919.pdf See also; https://www.cjonline.com/news/20190529/medicaid-expansion-supporters-drown-out-kansas-senate-proceedings. Here is a youtube video of the protest. Chants begin around 32:35 mark - https://www.youtube.com/watch?v=AdzTSgJHV-4&app=desktop. A statement from Senate President Susan Wagle on this incident can be found on her twitter feed - https://twitter.com/SenatorWagle

When activities resumed, the Kansas Senate quickly confirmed Sarah E. Warner to the Kansas Court of Appeals. The final tally was 37-1. The sole “nay” vote was from Sen. John Doll (I-Garden City) who wanted to see a nominee from western Kansas. See; https://www.cjonline.com/news/20190529/kansas-senate-affirms-court-of-appeals-nominee-sends-signal-to-supreme-court

The Senate then approved a motion to remove SCR 1610 from the judiciary committee and refer it to the whole Senate. SCR 1610 is the proposed constitutional amendment that would replace the merit selection process for Supreme Court justices with the nominate/appoint model used for the Kansas Court of Appeals. SCR 1610 was approved 28-10.  See; http://www.kslegislature.org/li/b2019_20/measures/vote_view/je_20190529124439_160305/

Sen. Masterson (R-Andover) made the initial motion, but declined to have a debate on the merits, at this time. His wants to have an interim committee review the process. No date has been set. It is likely that the issue will be sent back to Senate Judiciary in 2020 for hearings and debate.

Both chambers were able to pass another resolution dealing with natural disaster in Kansas. This will help with flooding and the recent tornado damages. HCR 5015 passed unanimously. See; http://www.kslegislature.org/li/b2019_20/measures/hcr5015/

Both chambers were also able to override Gov. Kelly’s budget vetoes. The vetoes were bundled into one measure and passed the Senate 27-11, with the House approving the override 86-30. See; http://www.kslegislature.org/li/b2019_20/measures/sb25/

 

Tags:  Author: Joseph N. Molina III  budget vetoes  HCR 5015  judicial appointment process  KS Court of Appeals  Medicaid expansion  Sarah E. Warner  SCR 1610 

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Sine Die 2019

Posted By Joseph N. Molina III, Tuesday, May 28, 2019

At 2:00 pm this afternoon—Tuesday, May 28th—the Kansas Senate Judiciary Committee will convene to discuss the nomination of Sarah E. Warner to the Kansas Court of Appeals. This position was vacated when Judge Patrick McAnany retired earlier this year.

This judicial confirmation hearing will be the first for Gov. Laura Kelly, although this is her second nominee for this position. As has been widely reported, Gov. Kelly’s initial nominee, Judge Jeffry Jack, failed to gain the needed support for the Kansas Senate. This after a quick ruling from the Kansas Supreme Court that the Jack nomination could not be withdrawn.

The Warner nomination will be voted on by the full Senate on Sine Die, May 29th. The Senate goes into session for Sine Die at 10:00 am.

The Senate may also attempt to vote on a constitutional amendment to alter the way judges are selected for the Kansas Supreme Court. Sen. Ty Masterson’s (R-Andover) motion to bring SCR 1620 to the Senate floor will take place tomorrow. This concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. Some senators are anxious to change the merit selection method in response to the Jack nomination issues. Sen. Hensley (D-Topeka) would like to simply correct  KSA 20-3020 to include a withdrawal provision. How the Senate proceeds remains to be seen.

The issue before both chambers will be whether enough legislators return for Sine Die to vote on these issues and/or attempt to override Gov. Kelly’s tax bill veto and certain line item vetoes she made on the budget. See; https://www.kansas.com/news/politics-government/article230703224.html

Normally, Sine Die is a formality and not much real business is undertaken. However, this year has been anything but “normal,” and a lot of issues remain up in the air at this moment. This could be a busy end to the session, or it could simply peter out. 

Tags:  2019 Session  Author: Joseph N. Molina III  Jeffry Jack  judicial confirmation  judicial selection  Sarah E. Warner  SCR 1620  Sine Die  Ty Masterson 

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Court of Appeals Confirmation

Posted By Joseph N. Molina III, Monday, May 13, 2019

UPDATE on Court of Appeals Confirmation

May 15, 2019

In less than 40 minutes, the Kansas Senate voted down the confirmation of Judge Jeffry Jack to the Kansas Court of Appeals. This was a foregone conclusion which was reflected by the unanimous vote. The negative vote was unanimous, 0-38. The debate focused largely on the process for selecting judges in Kansas. Sen. Rucker (R-Topeka) alluded to a change in that process to bring greater transparency to picking judges. Sen. Ty Masterson (R-Andover) previously made a motion to bring SCR 1620 to the Senate floor for a vote. The concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. That vote is scheduled for Sine Die.

Sen. Hensley (D-Topeka) proposed amending KSA 20-3020 to include a withdrawal provision as was previously incorporated. He said the statute is unclear and should be corrected.

Sen. Wilborn (R-McPherson) prepared a letter to the Commission on Judicial Conduct setting out grievances against Judge Jack. The letter was available for any senator to sign and sponsor.

Immediately after the final vote, Gov. Laura Kelly nominated Sarah E. Warner to fill the Court of Appeals position. Sen. Wilborn set a judiciary committee meeting for May 28th, time and location to be announced later. A vote on the confirmation will take place on May 29th when senators return for Sine Die.

News articles covering the confirmation vote:

See; https://www.cjonline.com/news/20190514/kansas-senate-rejects-twitter-damaged-nominee-for-court-of-appeals

See; https://www.usnews.com/news/best-states/kansas/articles/2019-05-14/the-latest-rejected-nominee-says-vote-discourages-service

See; https://www.kwch.com/content/news/Gov-Laura-Kelly-becomes-1st-in-Kansas-to-have-appeals-judge-rejected-509917901.html

See; https://www.kansascity.com/news/state/kansas/article230394659.html

 

Previously posted on May 13, 2019:

Last Friday, the Kansas Supreme Court unanimously ruled that the nomination of Judge Jeffry Jack to the Kansas Court of Appeals must be voted on by the Kansas Senate. 
See; http://kscourts.org/Cases-and-Opinions/opinions/SupCt/2019/20190510/121061.pdf

This decision comes after an expedited review of the nomination process to fill the Court of Appeal position vacated when Judge McAnany retired. The Court held that KSA 20-3020 does not allow the governor to withdraw a nominee once that nomination is made. The statute previously dealt with the withdrawal of a nominee, but that provision was removed when the statute was amended in 2013. The State argued that a general withdrawal provision found in KSA 75-4315b(c) was sufficient for the Jack withdrawal. However, the Court found that it could not rely upon this statute because it was not specific enough to the court of appeals confirmation statute to be binding. Furthermore, KSA 20-3020 provides only one way that an appointment can fail, and that is through a failed senate confirmation vote. The Court interpretation of withdrawal is analogous to nominees for elected office who die prior to an election. In those situations, the names had to remain on the ballot for that election.

The ruling does two things. First, it requires the Kansas Senate to vote on the Jack nomination because his withdrawal was improper. The Kansas Senate had 60 days to vote on the Jack nomination, and if my math is correct, that would mean they need to vote today, May 14th, 2019. If the senate fails to vote within the 60 days, the nomination becomes effective. The Kansas Senate anticipated this possibility and called a special meeting of the Senate to deal with it. The Jack nomination is anticipated to fail 40-0.

Second, once the Jack nomination fails, the process begins again, and Gov. Kelly may nominate other lawyers for the Court of Appeal positions. Gov. Kelly had previously nominated Sarah E. Warner for the spot, but that nomination was deemed invalid. As such, Kelly will have to re-nominate Warner or a lawyer of her choosing. It is anticipated that Kelly will nominate Warner again and request a hearing on Sine Die.
See; https://www.apnews.com/11e92702b1c549f7a1e7808fb2083b9c;
See also; https://www.wibw.com/content/news/KS-Supreme-Court-Appellate-Court-nominee-cant-withdraw-509769291.html;
See as well; https://www.salina.com/news/20190510/gov-laura-kellys-selection-of-next-court-of-appeals-judge-hangs-in-balance

Gov. Laura Kelly issued a press release as did Senate President Wagle.
See; https://governor.kansas.gov/statement-on-the-kansas-supreme-courts-decision-today/; See; https://twitter.com/SenatorWagle

One interesting fact about this case is that the KSAG was suing the Governor, Chief Justice and the Kansas Senate. Many believe this was the first time all three branches of government were named in a lawsuit.
See; http://kscourts.org/cases-and-opinions/dockets/Supreme-Court-Docket-May-09-2019-pm.pdf

Tags:  Author: Joseph N. Molina III  Court of Appeals nominations  Gov. Kelly nomination to Court of Appeals; Supreme  Jeffry Jack  Judge McAnany  KSA 20-3020  Sarah Warner  Senate Vote on Hon. Jeffrey Jack Nomination 

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