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.
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.
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 This after a quick ruling from the Kansas Supreme Court that the Jack nomination could not be withdrawn.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.
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.
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.
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.
This put pressure of leadership to break the expansion coalition by reworking the budget and removing key pieces which some of those expansion supporters wanted. That tactic failed with more that 80 no votes on that budget. However, after sitting around for most of Saturday, May 4th, the coalition finally broke and the floods gates opened. House Sub for SB 25 (state budget) passed 79-45. Many of the moderates in the expansion coalition flipped once it was obvious the budget would pass. See; http://www.kslegislature.org/li/b2019_20/measures/sb25/
With the budget out of the way, both chambers set their sights on a tax cut bill. Gov. Kelly vetoed an earlier version of the tax cut which the legislature could not override. The legislature used the same bill number for the latest tax cut bill. SB 22 would run about $240 million over three years. It would decouple the state from the feds on standard deductions starting in 2019, exempt foreign income starting in 2017, and ever so slightly reduce food sales tax burden. See; http://www.kslegislature.org/li/b2019_20/measures/sb22/
There is a good chance Gov. Kelly vetoes this bill as well. The message would be to look at a comprehensive tax policy change in 2020.
Should Gov. Kelly veto SB 22, the legislature may attempt an override on Sine Die. The override vote may not be the only vote taken by the Kansas Senate on May 29th. Sen. Ty Masterson (R-Andover) made a motion to pull SCR 1610 from Senate Judiciary. This will allow a vote to alter the merit selection process for the Kansas Supreme Court. See; http://www.kslegislature.org/li/b2019_20/measures/scr1610/
To appear on the ballot SCR 1610 would need 27 votes in the Senate and 84 votes in the House—a tall order for most legislative days—very difficult on Sine Die.
Finally, the Kansas Supreme Court will hear two other huge issues this Thursday, May 9th: the K12 lawsuit and the Court of Appeals hearing on selection of judges. The issues surrounding school finance are well document and many believe the new funding will end the lawsuit. The hearing on the Court of Appeals issue is also straightforward. It is a question of law. Who gets to pick? Gov. Kelly believes the pick remains with her (Kelly nominated KBA President Sarah E. Warner last week) while Senate President Susan Wagle believes the pick is now with Chief Justice Lawton Nuss. Chief Justice Nuss has recused himself from the proceeding and has no opinion on the matter.
On Wednesday, May 1, 2019 the Kansas Legislature returns for the wrap-up session, also known as Veto Session. Traditionally, the veto session is used to override any vetoes the governor may have signed after First Adjournment. These days, though, the Veto session is the time during which the state budget is finalized.
This year, the Kansas Legislature has only one thing that it MUST accomplish: passing a budget. However, several ancillary items will also be considered during this time period. First, there will likely be an attempt to work out a tax bill that reduces income taxes. Earlier in the session, the legislature passed SB 22, a large tax cut vetoed by Gov. Kelly. So far, there have been no attempts to override the Governor’s veto, but that could change.
There also could be a push to have the Kansas Senate debate and vote on Medicaid expansion. The House has already approved this measure, but Senate leadership is blocking the bill. Senate President Susan Wagle (R-Wichita) has offered an interim study on expansion which would kill the idea for 2019. Gov. Kelly has put on a full court press to get the proposal to the floor this session, but time is not on her side. Prior to First Adjournment, Sen. Hensley (D-Topeka) made a motion to pull HB 2066 out of committee. That would give proponents of expansion an opportunity to debate the bill. To pull the bill out of committee, they need 24 votes. However, to schedule floor debate, they need 27 votes—which is much more difficult.
Prior to the ruling, conservative Republicans had introduced legislation that would have banned abortion in Kansas. That constitutional amendment (HCR 5004) was co-sponsored by 21 Kansas Representatives. See; https://www.kansas.com/news/politics-government/article225209525.html The Hodes & Nauser v. Schmidt case will only intensify the push for a vote on the issue. The Veto Session will provide ample opportunity for that. A successful constitutional amendment requires two-thirds of both chambers. That means 84 representatives and 27 senators need to approve the proposal. The House party split is 84-41; the Senate party split is 28-11-1
With all this work pending and two large cases in front of the Kansas Supreme Court, it is unlikely that the veto session will be brief. The 90th session day is set for May 17th, but there is a chance legislators will blow past that date if things get interesting.
Finally, the Kansas Legislative Research Department has released two of its three legislative summaries. These break down all the bills signed into law. These summaries also indicate when these new laws will go into effect.
The Kansas Legislature is off for the majority of April, but there are still things to report. First, Gov. Kelly continues to sign bills into law. Just last week, she signed 16 bills on a variety of issues. These new laws will affect DCF, utility rate studies, state banking code, local government elections, and the number of school safety drills performed each year. This week, the Governor will likely continue to sign bills into law, including CCR for HB 2039, dealing with tribal judgments and the Kansas LLC Act.
Senate President Susan Wagle also made the news last week when she requested that KSAG Derek Schmidt file a lawsuit over the Kansas Court of Appeal nomination—or in her opinion—the lack thereof. In the nine-page letter, Sen. Wagle requested KSAG Schmidt seek a court ruling on whether Gov. Kelly can nominate another person to the court of appeals, or if the statute requires that Chief Justice Nuss make the appointment. Some believe that Gov. Kelly forfeited her opportunity to make the nomination when she withdrew Judge Jeffry Jack from consideration. Others believe that the Jack nomination counts, and she should have another chance to select. This is an ongoing issue which appears headed to the courts.
It should also be noted that Sen. Ty Masterson (R- Andover) introduced a constitutional amendment to replace the Supreme Court Nominating Commission with the same process used for the Kansas Court of Appeals.
On a related note, the election for the 2nd Congressional District member to the Kansas Supreme Court Nominating Commission is underway. Only lawyers who reside within the 2nd Congressional District and who have properly registered to vote with the Supreme Court Clerk are eligible to vote in this election. See;KSA 20-170. The KBA has introduced legislation to remove that barrier for lawyers who want to vote in those elections; that bill has stalled in the Kansas House. See;HB 2020. As such, the process continues under current law.
There are seven lawyers are on the ballot for this election. They include:
Sara S. Beezley, Pittsburg
Terrance J. Campbell, Lawrence
Heather R. Cessna, Lawrence
Shaye L. Downing, Lawrence
J. David Farris, Atchison
Jason P. Hoffman, Topeka
Michael F. Kagay, Topeka
Lawyers who are qualified to vote in this election should have already received a ballot in the mail.
Please follow the instructions and return the ballot and the signed certificate to the Kansas Supreme Court on or before May 15, 2019.
The Judiciary Conference Committee spent the majority of the last week bundling bills in order to pass several bills at once. These bundled bills are found in conference committee reports. The difficulty this session was the lack of bills in conference, or bills passed by both chambers but in different forms. This year, there were only six bills in conference, but more than 30 bills up for debate.
The Judiciary Conference Committee prioritized these six bills in conference, and created packages dealing with crime and punishment, contracts, courts, consumer protection, business entities and public agencies.
Crimes, Punishment and Criminal Procedure – CCR for SB 18
The bill in conference was SB 18, which includes amendments to the crime of counterfeiting currency (SB 134), access to pre-sentence reports (SB 19), out-of-state convictions (HB 2048); drug abuse treatment programs (HB 2396); penalties for involuntary manslaughter and child abuse (SB 108); mitigating factors when victim is an aggressor (HB 2283); and domestic violence notifications policies for LEO (HB 2279). The CCR for SB 18 was adopted by the House 123-0. The Senate plans to discuss this CCR during veto session.
Consumer Protection – CCR SB 78
The bill in conference was SB 78 which deals with assignment of certain rights and benefits under an insurance policy for real property. It adds protections relating to housing for victims of domestic abuse (SB 150). CCR for SB 278 passed both chambers (100-23/36-1) and now heads to the governor.
Courts – SB 20
The base bill in this CCR is SB 20 which extends the judicial branch docket fee surcharge. Under current law, the extension expires or sunsets after two years. The Senate removed this provision while the House maintained it. In conference, both sides agreed to place a six-year sunset provision in law. The committee also added language recognizing tribal court judgments in district court (HB 2039). The KS House passed this CCR 120-3. The Senate plans to take it up during Veto Session.
Public Agencies – CCR HB 2290
The bill in conference was HB 2290 which creates the victim’s compensation division within the KSAG. The committee added language concerning background checks for individuals who have unsupervised access to children and the elderly (HB 2360); exceptions to the KS Open Records Act (HB 2137); creation of the criminal justice reform commission (HB 2108); deferring the implementation of scrap metal database until July 1, 2021 (SB 219) and creating the Kansas closed-case task force to investigate hits on CODIS (SB 102). This CCR has not yet been drafted.
The Judiciary Conference Committee was unable to include some bills in conference committee reports this session. Those bills held over include:
HB 2336 - Clarifies when jail credit is awarded to offenders under supervision of the secretary of corrections. (124-0) (From House Corrections) (Heard in Senate Judiciary, No Action Taken)
HB 2244 - Creates an affirmative defense to the crime of possession of a controlled substance for possession of certain medical treatments. (House Vote 89-35) (From House Judiciary) (Not Heard in Senate)
HB 2034 - Enacts the supported decision-making agreements act to provide a statutory framework for adults who want decision-making assistance.(101-15) (House Federal and State Affairs)
HB 2281 - Provides that a court order modifying a criminal sentence only modifies the portion of the sentence referenced by the court and not remaining portions of the original sentence. (102-22) (House Judiciary)
The Kansas Legislature will reach First Adjournment today, April 5th. This deadline effectively kills any bill not already passed by at least one chamber. Of course, there are exceptions, and those are very similar to those used after Turnaround (House Appropriations, Senate Ways & Means, Tax etc.). The Legislature will return on May 1st for Veto Session.
• Judicial Branch Budget
The Kansas Judicial Branch has asked for budget enhancements totaling $20.1 Million. These enhancements include judicial raises ($7.8 million); nonjudicial raises ($10.3 million), and 7 new judges/staff with 20 unfunded positions ($2.0 million)
House Appropriations would like to phase in the increases over several years. The phase-in would begin in FY 2020 and last three years for staff and five years for judges.
Senate Ways & Means will discuss judicial pay during Veto Session.
The Judicial Branch Budget can be found on page 5 of the bill explainer for House Sub for SB 25. This bill is in conference and being negotiated.
The Judicial Branch also gained approval for its docket fee extension bill. That bill, SB 20, has passed both chambers (35-5 in the Senate/118-6 in the House), but the KS House amended the bill to include HB 2039, recognizing Tribal Court Judgments.
SB 20 accounts for $9 million dollars of the judicial branch budget. It has been sent to conference committee to debate the differences. The Senate appointed Sen. Wilborn, Sen. Miller and Sen. Rucker. The House should appoint, Rep. Patton, Rep. Carmichael and Rep. Ralph.
The Judicial Branch was also able to get approval for HB 2211. This bill allows judges to waive driver’s license reinstatement fees should the defendant qualify due to manifest hardship. The hope is this program will provide an incentive those with traffic fines to apply for the waiver and pay a percentage of the fine minus penalties. The Judicial Branch believes this will end with a net positive impact on the judicial branch budget.
For most of the session, merit selection was not an issue. However, with the nomination and subsequent withdrawal of Judge Jeffry Jack for the Kansas Court of Appeals, things have changed. The first proposal is similar to previous judicial selection constitutional amendments. This bill would eliminate the merit selection process and move towards a “governor nominate/senate confirm model.” This proposal was introduced by Sen. Ty Masterson (R-Andover).
Neither of these proposals have been scheduled for hearings
Sen. Dennis Pyle (R-Hiawatha) introduced a resolution calling for the resignation of Judge Jack. That resolution has no legal effect but does keep the issue alive. The Senate did not take up the issue.
The Kansas Legislature has less than a week to complete its work. A state budget and a school finance plan have yet to be negotiated. The House passed some school finance policy proposals but failed to pass a funding plan. The Senate passed a funding plan. How this shakes out will be interesting to see. Both chambers must also finalize a budget this week. The budget conference committee has already met but just to deal with some less controversial issues.
This past week was not the best for the new administration’s nominees. As we are all aware, Gov. Kelly’s nomination for the Kansas Court of Appeals position was named, rebuked and withdrawn within 48 hours. The main issue was social media content that Senators found to be offensive and partisan. Gov. Kelly was not aware of these remarks prior to her appointment of Judge Jeffry Jack, but once they came to light, she withdrew his nomination.
The amendment has not been drafted yet and no hearings are scheduled. To pass, the constitutional amendment would need to obtain 84 votes in the House and 27 votes in the Senate. Currently, the Kansas House has an 84/41 republican/democrat split.
In addition, Sen. Dennis Pyle (R-Hiawatha) introduced a resolution calling for the immediate resignation of Judge Jack. While this resolution, SR 1731, has no legal effect, it applies pressure on the judge. The Kansas Senate cannot force Judge Jack to resign, but they are taking every advantage of this issue. SR 1731 has 14 co-sponsors, including the Senate President.
The Kansas House has remained quiet on the Jack issue, but that has not stopped them from introducing legislation that would affect the Kansas Supreme Court. On Tuesday, Rep. John Barker (R-Abilene) introduced a bill that would mandate the Kansas Supreme Court issue opinions no later than one year after hearing oral arguments. This bill may have separation of powers issues, similar to the Solomon case a few years back, which the courts found unconstitutional.
Gov. Kelly’s nomination for the Department of Commerce is also on difficult footing after the Senate Commerce Committee voted 6-5 to reject his appointment.
Last week the KBA had two hearings on bills it sponsored. The Senate took up HB 2105, LLC Update and HB 2039, recognizing tribal court judgements. Both bills were well received and passed out of committee. The House Judiciary Committee amended SB 20 dealing with the docket fee surcharge extension to include a two-year sunset provision. This provision was removed by the Senate but reinserted at the request of the KBA. All three issues head to the floor for debate this week.
The Kansas Senate passed out SB 157, presumptive shared parenting time for temporary orders. The KBA opposed this bill. This bill has large bi-partisan support as evidenced by Sen. David Haley (D-Kansas City) making the motion to pass the bill out of committee. The bill was amended to add definitions for physical custody and parenting time provisions. The bill goes to the full Senate for debate.
This week the Kansas Legislature will spend most of its time on the floor passing out bills before the March 27th Second House of Origins deadline, after which they will be working in conference committee until First Adjournment on April 5th. Thus far, the legislature has sent only two bills to the governor’s desk, one of which she may veto. However, both chambers have debated more than 50 bills this week already. I expect a flood of bills to head to the governor’s desk.
The KBA held its KBA Day at the Capitol on Tuesday, March 12th. KBA volunteers meet with 54 legislators. Our goal was to create support for judicial branch pay increases for judges and staff. The KBA helped set up meeting with legislators and provided materials for these meetings. Most of our volunteers met with freshman legislators. We focused on this group because we have not formally discussed judicial pay raises with them.
Our volunteers reported strong support for pay increase for staff and district judges but very limited support for raises for the Supreme Court. A tension still exists between some legislators and the Supreme Court. It was said more than once that raises for staff should be the priority.
The KBA Day at the Capitol was well timed since the House Appropriations and Senate Ways & Means Committee were discussing the Judicial Branch budget this week. House Appropriations keep the language in for raises in their version of the budget. The House version would see a 3-year implementation plan for staff with a 5-year plan for judges. Senate Ways & Means decided to pass the judicial branch budget expect for the raise portion. They will discuss the pay plan at omnibus.
I would like to thank our volunteers for sparing a day to advocate for the judicial branch. Pictures courtesy of Ryan Purcell, KBA staff.
Gov. Kelly nominates Hon. Jeffry Jack
The Kansas Bar Association congratulates Hon. Jeffry Jack on his nomination to the Kansas Court of Appeals. Judge Jack will be well-served by his 31 years of experience as a member of the Kansas Bar and his 13 years as a Labette County district court judge.
The KBA also commends Governor Kelly for increasing transparency, implementing a merit-selection process to choose the finalists for this important position.
KBA President Sarah Warner observed, “Kansans are well-served by a process that encourages people of Judge Jack’s intellect and background to serve on the state’s appellate courts. We heartily congratulate Judge Jack and urge the Kansas Senate to swiftly confirm his nomination so he may take his place on the Court of Appeals.”