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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  COVID-19  legislature  budget  2020 Legislative Session  election  Kansas Supreme Court  Brownback  Supreme Court  Court of Appeals  Judicial Branch  Medicaid expansion  school finance  Special Session  abortion  Emergency Management Act  Fall Legislative Conference  Gannon  Hard 50  merit selection  Sine Die  2016 Session  2017 session  2017-18  Alleyne  First Adjournment  judicial branch budget  judicial selection 

Busy Week for the Kansas Supreme Court

Posted By Joseph N. Molina III, Tuesday, February 12, 2013
Updated: Wednesday, June 26, 2013

Last week the Kansas Supreme Court testified on the two bills amending the one judge per county requirement. These bills, HB 2016 and HB 2113, repeal the one judge per county requirement and allow judges to be reassigned around the state. Chief Judge Richard Smith and Chief Judge David King testified in support of both bills. Both judges believe in the efficient allocation of judicial resources and removing this barrier will allow the Supreme Court the flexibility to deal with mounting caseload issues in more populated areas. Judge Smith and Judge King’s testimony can be reviewed here.

Quick Take:

The Kansas Bar Association will be hosting another Lunch & Learn with Lawyer-Legislators CLE. This CLE will take place on Monday, March 25 from 11:30-12:50. KBA member Larry Zimmerman will provide an hour of Free Ethics CLE dealing with social media, advertising and iCloud storage issues.

 

Opposition to these bills were varied but organized. The District Magistrate Judge Association opposed both bills as did Kansas Farm Bureau, several Law Enforcement Organizations and the Kansas Legislative Policy Group. You can find opposition testimony here.

 

The most interesting discussion during the hearing was the conceptual amendment to reduce the number of district court judges in those high case load districts and replace them with magistrate judges. District Magistrate Judge Ann Dixson argued that a magistrate judge has jurisdiction to hear 91% of the cases filed in court. However, a District Magistrate Judge’s salary is only $61,755.00, approximately half of what a District Judge earns. In addition, a Magistrate Judge operates without support staff or Court Reporters. Given these added costs and the annual salary of a District Judge, Dixson believes that three (3) Magistrate Judges could replace one (1) District Judge and their support staff without increasing the budget or affecting access to justice. She also stated that this conversion could be done through attrition and in the interim magistrate judges could travel to these high caseload areas to help out for a week or so at a time.

 

What steps the House Judiciary Committee takes regarding this bill and conceptual amendment is hard to say but it is important to remember that four members of this committee were judges. Rep. Steven Becker (R-Hutchinson) is a retired District Judge; Rep. Russ Jenning (R-Lakin) and Rep. John Barker(R-Abilene) are former District Magistrate judges; and; Rep. Marshall Christmann (R-Lyons) is a municipal court judge.

 

Agriculture attorneys may be interested in the following:

HB 2049, Kansas department of agriculture; increasing certain fees and eliminating sunsets on various program fees;

SB 153, Water; dams; definition; exemption from permit requirements; inspection costs and penalties;

SB 146, Agriculture; changing the definition of "on-farm retail sales of milk or milk products.

 

In the coming days a number of family law bills will be given hearings. They include:

HB 2205, Adoption hearings, time and waiver of notice; February 13 @ 3:30 pm in the House Judiciary Committee, Rm 112-N; and;

HB 2233, Protective Parent Reform Act, February 21 @ 9:00am in the House Committee on children and seniors, Rm 218-N;

HB 2254, Relating to the determination of paternity; and HB 2259, service of process in divorce actions have not been set at this time.

 

Please find litigation proposals that may be of interest to you:

HB 2224 was introduced to reverse a recent Kansas Supreme Court decision, O’Brien v. Leegin Creative Leather Products, Inc., No. 101,000, 2012 WL1563976 (Kan. Sup. Ct., May 4, 2012). Proponents of this bill argued for a return to the establish standard of "rule of reason” to judge whether or not an agreement violated the restraint of trade act. Opponents of the bill argued that the bill would alter existing laws not addressed by the O’Brien decision and cause detrimental effect to consumers. Other restraint of trade bills that were introduced include SB 123; SB 124; HB 2225; HB 2258, and HB 2275. The KBA took a neutral position on these bills.

 

Oil and Gas lawyers may be interested in this proposal:

HB 2262, Abolishing the oil and gas valuation depletion trust fund

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Kansas Senate Passes Merit Selection Reform Measure

Posted By Joseph N. Molina III, Tuesday, February 5, 2013
Updated: Wednesday, June 26, 2013

On Wednesday, January 30, the Kansas Senate debated SCR 1601 and its trailer bill SB 8. SCR 1601 would eliminate the Supreme Court Nominating Commission and replace it with the federal model for selecting judges and justices in Kansas. Sen. Jeff King (R-Independence) carried and supported SCR 1601 and SB 8. Several opponents of the measure attempted to amend SCR 1601. The most discussed issue was whether to have the election in the primary or general election; this issue would go to the voters during the August 2014 primary. Opponents of SCR 1601 wanted the election moved to the general election three months later in November. King and others argued that the primary was the first available election and that it should be set in August. Historically, primary elections have a much lower voter turnout. For instance, in the 2012 general election voter turnout was 66.8 percent as opposed to the primary turnout which was 23.2 percent. This trend was also seen in the 2010 elections where the general election turnout was 49.7 percent compared to 25.3 percent in the primary. Even after these statistics were discussed, the Senate voted down a proposed move 26-14. It should be noted that the House plan (HCR 5002) provides that the election will be held during the general election in November 2014.

Quick Take:

On January 31, 2013, Chief Justice Lawton Nuss released the State of the Judiciary report. This report highlighted the judicial branch’s ongoing budget issues, statewide e-filing program, and the Court’s 2014 budget request. You may view the entire report online at http://bit.ly/SOJ2013.

 

Two other amendments were offered that clarified the explanatory statement that accompanies SCR 1601 and both of these amendments passed on a voice vote. SCR 1601 was placed on Emergency Final Action and passed 28-12. The following is a breakdown on how each senator voted on this issue.

 

On roll call, the vote was: Yeas, 28; Nays, 12; Present and Passing, 0; Absent or Not Voting, 0.

 

Yeas: Abrams, Apple, Arpke, Bowers, Bruce, Denning, Donovan, Fitzgerald, Holmes, Kerschen, King, Knox, LaTurner, Longbine, Love, Lynn, Masterson, Melcher, ODonnell, Olson, Ostmeyer, Petersen, Pilcher-Cook, Powell, Pyle, Smith, Tyson, Wagle.

 

Nays: Emler, Faust-Goudeau, Francisco, Haley, Hawk, Hensley, Holland, Kelly, McGinn, Pettey, V. Schmidt, Wolf.

 

If you would like to learn more about these proposals, you may find that information online at http://bit.ly/meritselection. Next week the Supreme Court will be debating their one judge per county bill, along with Rep. Lance Kinzer’s one judge proposal. That hearing is set for 3:30 p.m. on Thursday, February 7. See Pages 27-28, http://bit.ly/2013DailyHouseCalendar. Both of these bills (HB 2016 and HB 2113) would allow the Supreme Court to reassign judges. The main difference that is Kinzer’s bill (HB 2016) has a hard 600 case cap that would trigger reassignment. The Supreme Court proposal (HB 2113) would simply give the Supreme Court authority to reassign as they deemed necessary.

 

The Supreme Court has also introduced a bill that would allow for the creation of an E-Filing Technology Fund. This bill (HB 2117) allows the Supreme Court to set the fee for e-filing. This bill is similar to last year’s version, but it does not request a specific dollar amount. It simply requests authority to place an "additional fee” on various surcharge fees and assign those newly collected fee to the E-Filing Technology Fund.

 

Please find the following litigation proposals that may be of interest to you:

  • SB 73, Workers compensation: administrative duties of secretary of health and environment; citizenship status; administrative judge disqualification; limitation of actions; workplace health and safety program;
  • SB 89, Interest on judgments in civil actions;
  • SB 90, Amending private remedies under the Kansas consumer protection act; and
  • HB 2173, Civil procedure: Remote claims on commercial property; state construction registry

Judicial branch proposals include:

  • HB 2102, Commission on judicial performance, sunset in 2017;
  • HB 2113, Relating to judges; authority of supreme court; and
  • HB 2117, Relating to court fees and costs; judiciary technology fund

Oil and gas lawyers may be interested in this proposal:

  • HB 2138, Repealing statutes related to oil and gas

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Merit Selection Reform Makes a Big Move

Posted By Joseph N. Molina III, Tuesday, January 29, 2013
Updated: Wednesday, June 26, 2013

Proponents of merit selection reform had a very good week as both the Senate and House judiciary committees passed their version of the Federal Model out of committee. Actually the Senate Judiciary Committee passed two bills, SCR 1601 and SB 8, which will aid in the elimination of the current judicial selection process. There were no real surprises in the Senate Judiciary Committee as passage of these bills were seen as a foregone conclusion but there was some technical fixes that were needed before the committee could move SB 8 out. The technical fix involved the naming of the new seven-member commission created in SB 8. As introduced the seven-member commission was called the Kansas Commission on Judicial Qualifications. However, the Supreme Court already has a commission with that name looking into complaints levied against judges so the new commission needed a name change. The Senate Judiciary Committee settled on the Kansas Commission on Judicial Nominations.

Quick Take:

On Monday, January 28 the KBA hosted the first Lunch & Learn with Lawyer-Legislators at the Kansas Capitol. This event allowed lawyer-legislators to receive 1.0 hour of CLE credit without leaving the Capitol. Many thanks to the Capitol staff and to Sen. Jeff King for making this event a success. The KBA hopes to provide our hardworking and time depraved lawyer-legislators with additional opportunities to receive CLE credit during the session.

 

Things in the House Judiciary Committee were a little more dramatic as Rep. Jim Ward (D-Wichita) made a motion to pass out of committee the KBA’s 4-5-6 Plan instead of the Federal Model plan that was under consideration. The Ward amendment failed 10-12. Out of the 10-committee members voting in favor of the 4-5-6 Plan, five were Republicans. This is a good sign as we move into the votes on the House floor. However, the original federal model proposal, HCR 5002, was passed on a voice vote. There was a significant amendment to HCR 5002 that moved the election date from the August primary to the November general election. The Senate considered this amendment but failed to pass it.

 

Later this week the Senate will consider SCR 1601 and SB 8 in General Orders with Final Action probably the following day. The House will likely debate this issue next week but a timetable is not set yet. If you are interested in contacting your legislator to express your thoughts on merit selection reform you can locate your legislator using the link below: http://ksbar.org/displaycommon.cfm?an=1&subarticlenbr=341.

 

If you would lie to learn more about these proposals you can find that information here: http://ksbar.org/displaycommon.cfm?an=1&subarticlenbr=346.

 

Besides merit selection there will be two hearings next week dealing with probate issues. These bills, HB 2014, revoking an ex-spouses inheritance rights upon divorce, and HB 2015, domestic relations relating to marital property, will be heard on Thursday, January 31 at 3:30 p.m. in Rm. 346-S by the House Judiciary Committee.

 

You should also be interested in three bills dealing with the Supreme Court. The first is HB 2016, which would repeal the one judge per county requirement. This bill was introduced by Rep. Lance Kinzer and allows the Supreme Court to reassign a magistrate judge from a district with less than 600 non-traffic cases per year. The reassignment would come as judges retired. The Supreme Court has introduced their own one judge per county bill but it would simply give the chief justice the authority to reassign judges with no set timetable. This is very similar to what they introduced last year. The Supreme Court also introduced a bill that would allow them to create an e-filing fee fund.

 

Agriculture attorneys may find these bills interesting:

  • HB 2049, Kansas department of agriculture; increasing certain fees and eliminating sunsets on various program fees; and
  • SB 57, agriculture; powers and duties of the department of agriculture relating to animal health.

Attorneys with a criminal law practice should pay attention to the following bills:

  • SB 61, human trafficking;
  • SB 66, requiring the collection and publication of district attorney criminal and juvenile offender caseload data;
  • HB 2041, criminal history record information; definition; municipal court reporting; district court reporting;
  • HB 2043, aggravated battery; driving under the influence; and
  • HB 2093, amending the crime of ID theft.

Lawyers interested in elder law and/or health law should review the following:

  • HB 2068, Kansas death with dignity act.

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Judicial Selection Up First

Posted By Joseph N. Molina III, Tuesday, January 22, 2013
Updated: Wednesday, June 26, 2013

The first full week of the Kansas Legislature was marked by Gov. Brownback’s State of the State address, and the introduction of 98 bills and a two-day hearing dealing with merit selection reform. Sen. Jeff King (R-Independence) chaired the Senate Judiciary Committee hearing on merit selection. This was a two-day hearing to discuss SCR 1601 and SB 8. These proposals would eliminate the current Supreme Court Nominating Commission; replace it with a federal model system and enact a new seven-person commission to review the governor’s appointee. Proponents of this proposal testified last Wednesday with opponents commenting on Thursday. KBA President Lee Smithyman testified in opposition to both proposals.

Quick Take:

KBA Executive Director Jordan Yochim presents Sen. Jeff King with the Senate Judiciary Gavel!

With the opening of the 2013 Kansas Legislative session Sen. Jeff King (R-Independence) has ascended to the chair of the Senate Judiciary Committee. The KBA welcomes Sen. King and looks forward to a productive year.

 

In addition, the KBA introduced its own proposals to reform the merit selection commission. This proposal, called the "4-5-6 Plan” would maintain the merit selection system but allow more input from the legislative branch. Licensed attorneys in Kansas would continue to elected four (4) commission members, one from each congressional district; the governor would appoint five (5) members, with one being a non-voting chair; and the legislature would appoint six (6) members, the speaker of the House will appoint two, the Senate president would appoint two, and the minority leader of both chambers would each appoint one. This revised nominating commission would preserve the merit selection system that has produced highly qualified judges for more than 50 years while allowing more accountability through indirect representation by the people. If judicial selection must be changed, the KBA encourages the legislature to adopt the "4-5-6 Plan.”

 

Additionally, the Kansas House Judiciary Committee held informational meeting on judicial selection methods last week. That committee introduced three other proposals that included a Federal Model plan (HCR 5002, a partisan election plan), HCR 5003 (Rep. Mark Kahrs), and a hybrid approach (HCR 5005 – Rep. John Rubin). In addition to the KBA, Chief Judge Tom Malone (Court of Appeals); Jim Robinson (Kansas Association of Defense Counsel & Defense Research Institute); Mike Fleming (Kansas Association of Justice); Jack Focht (Kansas Appleseed Center for Law and Justice); Anne Burke (Supreme Court Nominating Commission chair); Debbie Nordling (former Supreme Court Nominating Commissioner – non-lawyer appointee); Janice McMillan (Kansas League of Women Voters); Landon Rowland (Lead Bank president); Harry McDonald (Main Stream Coalition); Professor Mike Hoeflich, Professor Jim Concannon; Jen Bruning (Overland Park Chamber of Commerce); Robert VanCrum (Greater Kansas City Chamber of Commerce); Lenexa Chamber of Commerce; and Hugh Gill (Wichita Bar Association president) all provided testimony in support of the current merit selection system.

 

A hearing on each of the proposals introduced in the House Judiciary Committee is scheduled for January 22, at 3:30 p.m. in Rm. 112-N. The KBA will testify in support of the "4-5-6 Plan” (HCR 5004).

 

Business association practitioners should be interested in the following:

SB 5, business entities restricting use of acquired entity’s name, which is scheduled for a hearing on January 24 at 8:30 a.m. in the Senate Commerce Committee, Rm. 548-S.

 

Attorneys with a criminal law practice should pay attention to the following bills:

SB 4, statute of limitations for certain sexually violent crimes;
SB 16, Kansas racketeer influenced act; criminal street gangs;
SB 17, amending the crime of unlawful sexual relations;
SB 19, mistreatment of a dependent adult;
SB 39, unlawful possession of prescription-only drugs;
SB 40, amending provisions relating to DNA evidence;
SB 47, amending the crime of identity theft; and
HB 2013, amending the crime of perjury.

 

Immigration attorneys may find the following interesting:

SB 48, Kansas employer e-verify accountability act.

 

Litigants may find these last three bills interesting:

SB 20, civil procedure; poverty affidavit;
SB 42, architects and engineers; immunity from liability in negligence; and
HB 2028, providing for venue in Shawnee County District Court in forfeiture proceedings

 

Probate lawyers should consider the proposals introduced by the Kansas Judicial Council:

HB 2014, revoking an ex-spouses inheritance rights upon divorce; and
HB 2015, marital property.

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2013 Legislature Opens

Posted By Joseph N. Molina III, Tuesday, January 15, 2013
Updated: Wednesday, June 26, 2013

Kansas legislators returned to work this week, and they were greeted with a school finance ruling, hearings on merit selection of appellate judges, and 18 other prefilled bills. The most discussed issue is the school finance ruling that ordered the legislature to fund school base aid at a much higher level. See http://www.shawneecourt.org/CivicAlerts.aspx?AID=21.

 

A number of legislators have already voiced their concern over the ruling, believing that the three-Judge panel overstepped their authority by ordering an appropriation of funds. Legislators have stated that the authority to allocated funds is reserved for elected representatives. See http://www2.ljworld.com/weblogs/first-bell/2013/jan/13/school-finance-and-the-kansas-constituti/.

 

The school finance ruling will have a definite impact on the state budget but the ripple effects are sure influences other issues, i.e., merit selection. The Senate and House judiciary committees have already scheduled hearings to discuss changes to the current merit selection method. The Senate has even pre-filled a concurrent resolution to amend the Kansas Constitution (SCR 1601) and another bill (SB 8) to create the Judicial Qualification Commission as an alternative to the Supreme Court Nominating Commission. Hearings are scheduled as follows:

 

Senate Judiciary Committee
Wednesday, January 16 – Thursday, January 17
State Capitol, Rm. 346-S (Old Supreme Court Room)
10:30 a.m. – Noon

 

House Judiciary Committee
Wednesday, January 16 – Thursday, January 17
State Capitol, Rm. 112-N
3:30 p.m.

 

Attorneys practicing in the business entity field should pay attention the following:

SB 5 and HB 2010, dealing with business entities restricting use of acquired entity’s name. Both of these bills contain the same language. The KBA is monitoring this issue.

 

Criminal attorneys may wish to review the following bill:

SB 4 and HB 2008 both concern the statute of limitations for certain sexually violent offenses. These bills would expand the time limit for sexually violent offenses committed against a person under the age of 18.

Tags:  finance  merit selection  opening  school finance 

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2013 Legislative Timeline

Posted By Joseph N. Molina III, Tuesday, January 8, 2013
Updated: Wednesday, June 26, 2013

The 2013 Kansas Legislature is set to open on Monday, January 14. The official opening will start at 2 p.m. with the swearing in of House and Senate members. The big news will come out of January 15 when Gov. Brownback addresses the Legislature to give his State of the State address. The governor will most likely discuss the Kansas Budget process, moving from an annual budgeting cycle to a biannual cycle. He may also discuss the impact of the 2012 tax cuts, reauthorizing the 2009 1-cent sales tax, school funding, and merit selection.

 

After the governor has laid out his vision for 2013, legislators will begin introducing legislation and holding hearings. To keep pace with the fast paced Capitol issues, follow me on twitter (@KansasBarLeg) for the latest legislative updates. You can also keep tabs on legislative deadlines at http://bit.ly/2013SessionPlanner.

Tags:  Brownback  budget  opening  timeline 

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