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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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Hurry Up & Wait

Posted By Joseph N. Molina III, Tuesday, February 18, 2020

Last week the KS Legislature was busy rejecting Governor Kelly’s attempts to reorganize some state agencies, dealing with sports wagering, hearing sexual abuse litigation proposals and discussing anti-vaxx legislation. However, all this activity did not result in any legislation passing either chamber. I guess John Wooden’s comment stands: “Never confuse activity with accomplishment.”

For the KBA’s part it was a busy week in committee. There are several new proposals that need Your attention.

Contingency Fee ProposalSB 446 comes from the Kansas Chamber. It was circulated to the BOG and two ALERTS were emailed to KBA membership. The proposal creates a strict fee schedule for anyone entering a contingency fee contract for legal services resulting from personal injury, wrongful death or damage to property. The proposal provides:

(c), in any contingency fee agreement described in subsection (a), such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the net amount recovered as follows: (1) 331 /3% of the first $300,000; (2) 25% of the next $300,000; (3) 20% of the next $300,000; (4) 15% of the next $300,000; and (5) 10% of any amount that exceeds $1,200,000.

No hearing has been scheduled for HB 446.

Legal Advertising ProposalSB 445 is also a product of the Kansas Chamber. It too was circulated to the BOG and email ALERTS sent to KBA members. The proposal attempts to limit the types of legal advertising that can be aired in Kansas. It affects all forms of communications. No hearing has been scheduled for HB 445.

Withdrawal of Court of Appeal NomineeSB 403 was introduced by Sen. Eric Rucker (R-Topeka) to clarify when a nominee for the Kansas Court of Appeals may withdraw from consideration. The proposed language states:

(2) The governor may withdraw an appointment from consideration by the senate at any time before the senate consents to such appointment by serving written notice of such withdrawal on the secretary of the senate in accordance with K.S.A. 60-303, and amendments thereto.

The bill also strikes out several provisions that set out the time period in which the governor and sent must act. As drafted the bill sets no time period for the Senate to act on a Court of Appeal nomination.

Original Jurisdiction over Medical Malpractice  – HB 2673 was introduced by Rep. Fred Patton (R-Topeka) on behalf of Speaker Pro Tem Blaine Finch (R-Ottawa). The bill would give the Kansas Supreme Court original jurisdiction over medical malpractice cases with a claim of noneconomic loss.

Allowing Legislators to remain in a closed courtroomHB 2591 was introduced by Rep. Michael Capps (R-Wichita). The bill would allow legislators of either chamber to observe the proceedings in a closed courtroom. This bill infringes on a judge’s authority over his courtroom. The KBA has previously OPPOSED such measures.

Contract for DeedHB 2600 was introduced by Rep. Jason Probst (D-Hutchinson) to resolve issues his constituents are having with the sale of real estate via contract for deed. Rep. Probst had a similar proposal last session which he did not file. HB 2600 has a hearing on Wednesday, February 19th at 9am in House Local Government.

Quorum Requirements for certain CorporationHB 2401 was introduced by Rep. Boog Highberger (D-Lawrence) to assist the Merc Co-Op in amending its corporate charter. The bill lowers the quorum requirement to 10% which would allow fewer voting members be present to change its By-Laws. Our Corporate law section, led by Bill Matthews and Bill Quick, are concerned that this sets a dangerous precedent and would like to work out a non-legislative alternative.

Audio-Visual use in CourtroomsHB 2447 was introduced by the Kansas Judicial Council to expand the use of audio/visual technology in courtrooms. The bill passed the House Judiciary Committee this week but did draw a few amendments including the right of a parent to testify via teleconference in CINC cases. The bill now heads to the House floor.

Public Litigation Coordination ActHB 2461 was introduced by the KSAG office to require public entities get approval before entering into contingency fee contracts. The KSAG would have sole discretion in approving these requests. The KBA opposed this bill along with the League of Kansas Municipalities, Kansas Association of Counties, Kansas Collection Agencies and the Trial Lawyers Association. The bill is being negotiated with new language being introduced in the Kansas Senate.

Uniform Power of Attorney ActHB 2500 was introduced by the Kansas Judicial Council. The bill provides a new power of attorney form and requires, in certain instances, that third party entities accept this form or a form that is substantially compliant with the judicial council form. The bill was amended to include language that allows third party entities to deny PoA’s if relied upon the opinion of counsel. The bill now heads to the House floor.

Uniform Family Law Arbitration ActHB 2533 was introduced by the KBA with Prof. Lind Elrod speaking on behalf of the BAR. The bill allows arbitration to be used in certain family law setting such as divorce actions. Family Law Arbitration is voluntary. The House Judiciary Committee recommended HB 2533 favorably for passage this week. HB 2533 now heads to the House floor.

Hearings

The KBA will be involved in the following hearings:

Terminating Parent Rights SB 404 was introduced by the KS Judicial Council to create a cause of action to terminate the parental rights when the child is conceived as a result of a sexual assault. The KBa Family Law Section is interested in this bill.

Code Clean-upSB 424 was introduced by the Ks Secretary of State’s office to clean-up the code after several laws pass in 2019. This will allow the KS SOS to use new technology in business filings. It does postpone the enactment of several laws so the proper technology can be place.

Judicial Branch Budget – The House General Government Budget subcommittee will meet on Wednesday, February 19th at 3:30pm to discuss the Judicial Branch Budget. The KBA will submit testimony supporting the supplemental budget that seeks a raise for judges and staff.

Tags:  2019-2020  2020 Session  Author: Joseph N. Molina III  budget  judicial branch budget  terminating parent rights 

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Legislative Alert and One Month Update on the 2020 Legislative Session

Posted By Joseph N. Molina III, Tuesday, February 11, 2020

Legislative Alert

 

On Monday, Feb. 10,  two (2) legislative proposals were introduced that would alter how Kansas lawyers advertise and contract with clients. These proposals deal specifically with contingency fee contracts and legal advertising.

 

The legal advertising proposal would require any solicitation, thru television, radio, internet, newspaper, outdoor display or any other written communication, to abide by specific restrictions. To review the language of this proposal please visit: https://www.ksbar.org/resource/dynamic/blogs/20200211_111934_16259.pdf

 

The contingency fee proposal would limit the fee an attorney could earn in personal injury, wrongful death or damage to property cases. The proposal mandates that the contingency fee contract could not exceed ( 1) 33.3% of the first $300,000; (2) 25% of the next $300,000; (3) 20% of the next $300,000; (4) 15% of the next $300,000; and (5) 10% of any amount that exceeds $1,200,000.

 

A claimant may waive these fee schedule but only after being advised by the attorney that the claimant may seek other counsel who would be willing to adhere to the statutorily imposed fee schedule. A fee schedule waive must be in writing and contain the following information:

 

"I UNDERSTAND THAT THE FEE SCHEDULE SET FORTH IN THE KANSAS STATUTES ANNOTATED LIMITS THE AMOUNT OF ATTORNEY FEES PAYABLE BY A CLAIMANT AND THAT THE STATUTE WAS INTENDED TO INCREASE THE PORTION OF THE JUDGMENT OR SETTLEMENT THAT WAS ACTUALLY RECEIVED BY A CLAIMANT. NOTWITHSTANDING THAT THE LEGISLATIVE INTENT IN ENACTING THE FEE SCHEDULE WAS TO CONFER A BENEFIT ON A CLAIMANT LIKE MYSELF, I KNOWINGLY AND VOLUNTARILY WAIVE THE FEE SCHEDULE IN THIS CLAIM OR CIVIL ACTION."

 

If the claimant agrees to the waiver, the contingency fee contract shall not exceed 33.3%.

 

To review this proposed language please visit: https://www.ksbar.org/resource/dynamic/blogs/20200211_111934_24155.pdf

 

Should you wish to comment on either of these two proposals, please send emails to info@ksbar.org by 5:00 p.m. on Friday, February 14.

_________________________________________________________________________________

 

One Month Update      

The Kansas Legislature has been working for a month—and it has been quite a month! The big news to start the session was the Medicaid Expansion agreement between the governor’s Office and Sen. Jim Denning. Things shifted quickly to the Constitutional Amendment on Abortion, only to end with both issues being intertwined. See; https://www.kansas.com/news/politics-government/article240103883.html, See also; https://www.kmuw.org/post/four-kansas-republicans-stopped-their-partys-anti-abortion-bill-gop-says-its-not-over

The abortion amendment failed last Friday, 80-43, after a five-hour Call of the House. This failure prompted Kansans for Life to publicly oppose the Medicaid Expansion proposal. Senate President Susan Wagle (R-Wichita) moved quickly after the amendment was voted down to refer all healthcare bills from the Senate calendar. This procedural rule makes it very difficult to debate and pass any healthcare bill including the proposal on Medicaid expansion.

Wagle’s strategy places the entire session in jeopardy with no one quite sure how to break the impasse.  The Senate Calendar for this week has very little activity on the floor. Committees are still busy, but whether their work gets debated by the entire Senate remains to be seen.

With its advocacy efforts, the KBA had a very busy first month of the legislative session. The KBA reviewed nearly 100 proposals and took positions on nearly a dozen. These issues range from the Uniform Family Arbitration Act (which has been in the works for over a year), to shared parenting issues and electronic notary updates. Below is information on some of the issues still in play for the KBA.

 

HB 2333 – Allowing a court to order a final adoption decree take effect at an earlier date.

The KBA was asked to review and provide comment on HB 2333 by the House Judiciary Committee. The issue centers around a Leavenworth family who adopted a child from South Korea. However, for immigration purposes the child needed to be adopted prior to her 16th birthday. This adoption failed to meet that deadline; thus, the child cannot become a naturalized US citizen. The case is ongoing.

 

HB 2401 – Providing an exception to the quorum requirements for certain corporations

The KBA has serious concerns about this bill as it lowers to needed quorum requirement to 10% of shares entitled to vote. By lowering the quorum less people are needed to alter article of incorporation and/or bylaws.  HB 2401 does not conform to any Delaware law on the issue. The KBA Business and Corporation section is working with Rep. Highberger on a non-legislative solution.

 

HB 2447 – Increasing the use of audio/visual technology in courtrooms

The Office of judicial Administration introduced a bill to increase usage of audio/visual technology in courtrooms.  The bill would allow any court to use the new technology if applicable. By using audio/visual tech, defendants would not have to travel to the court for many preliminary hearings, saving the county money on travel and staff time. The committee heard from Johnson County clerks about the possibilities in the new courthouse.

 

Rep. Kellie Warren (R-Leawood) felt the bill went too far by removing various safeguards regarding witness testimony. The language she took issue with can be found in Section 13 of the bill.

Sec. 13. K.S.A. 2019 Supp. 60-243 is hereby amended to read as follows: 60-243. (a) Form and admissibility. At trial, the witness' testimony must be taken in open court, unless otherwise provided by law. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location Testimony by contemporaneous transmission from a different location may be allowed whenever any party requests the use of two-way electronic audio-visual communication by written notice at least seven days prior to the scheduled hearing or proceeding. Such notice shall include the name and internet protocol address of the witness who will testify by two-way electronic audio-visual communication and the date and time the witness will testify.

The KBA SUPPORTS this bill.

HB 2461 – Public Litigation Coordination Act

The bill is sponsored by Kansas Attorney General’s office and would require public entities to receive permission from the KSAG prior to entering a contingent fee contract. We have seen several municipalities sue large corporations over the opioid epidemic and over underage vaping. Local units of government would need to apply to the KSAG for permission to enter these contracts. The KSAG would have sole discretion in approving the applications. Applications would be approved if the KSAG determined that the contract served the public interest and did not impede the legal interests of the State.

The KBA has a long-standing policy opposing litigation restriction measures. The KBA submitted written testimony in opposition. The League of Kansas Municipalities, Kansas Association of Counties, KTLA and possibly the KS Association of School Boards joined the KBA in opposing this measure.

It appears there have been negotiations between the local government associations to include language that would exempt them from certain requirements of the new act. That new language will determine the fate of the legislation. The KBA OPPOSES the bill as it was introduced.

HB 2500 – Uniform Power of Attorney Act

The Kansas Judicial Council introduced this bill that amends “power of attorney” in Kansas. The bill would require third parties to accept a PoA as long as it substantially complied with certain requirements. Those third parties would be exempt from liability when they accept those documents. This proposal has been around for several years, but this is the first time the Judicial Council formally introduced it.

 

The House judiciary Committee was very skeptical of the proposal. Committee members had difficulties with the provision concerning exemptions from liability. In Section 2 of the proposal, the third party is not responsible for determining if the attorney is in fact exceeding his authority or improperly exceeding the PoA’s authority.

 

HB 2533 – Uniform Family Law Arbitration Act

The KBA introduced this bill in House Judiciary Committee. The Uniform Family Law Arbitration Act (UFLAA) creates a statutory scheme for the arbitration of family law disputes. Arbitration is a private process that parties may use to resolve a dispute rather than going to court. During an arbitration, a neutral third party—the arbitrator—hears arguments from the parties, evaluates evidence and offers a decision on the dispute. Although arbitration has long been used in the commercial context, it has recently begun to gain popularity in the family law sphere.

 

Under the UFLAA, a “family law dispute” is a contested issue arising under the state’s family or domestic relations law. Family law disputes typically include disagreements about marital property, spousal support, child custody and/or child support.

 

Under the Act, an arbitrator may not:

  • grant a divorce;
  • terminate parental rights;
  • grant an adoption or guardianship of a child or incapacitated person; or
  • determine the status of a child in need of protection.

The Act sets out arbitration procedures chronologically, from defining an arbitration agreement to providing standards for vacating a confirmed award. Many of the provisions of the UFLAA will be familiar to arbitrators and practitioners of dispute resolution. This is because the UFLAA is based in part on the Uniform Arbitration Act (1955) and Revised Uniform Arbitration Act (2000). The UFLAA’s provisions for arbitrator disclosure, award, appeals, and arbitrator immunity are, among others, drawn substantially from these earlier uniform acts. The KBA SUPPORTS this bill.

 

SB 157 – Presumptive Shared Parenting Plans

This bill amends the Kansas Family Code governing temporary parenting plans. The proposal would require equal access to the child from the filing of a divorce action to the entering of a permanent child custody order. The temporary parenting plan awarding joint legal custody will presume to be in the best interest of the child. However, if there is documentation or other information supporting a finding of domestic abuse, there would be a finding that temporary joint legal custody is not in the best interest of the child.

 

This bill was sponsored by 17 senators, supported by the Senate Judiciary Committee and all three lawyer/legislators. The Senate approved the bill 39-1 (Sen. Dinah Sykes, D-Lenexa, the lone NO vote.) The KBA OPPOSES this bill.

 

SB 269 – Increasing the age of retirement for judges from 75 to 80

Sen. Vic Miller (D-Topeka) introduced this bill. It increases the mandatory retirement age for judges from 75 to 80. This would affect 5 current judges who will otherwise be forced to retire before the end of their current terms. The Senate Judiciary Committee passed the bill out favorably, but the Senate sent it back because it would apply to appellate judges. The KBA SUPPORTS this bill.

 

SB 334 – Modifying certain rules of evidence to conform to the federal rules of evidence

The Kansas Judicial Council introduced this bill in response to a Kansas Court of Appeals case: State v. Patrick, No. 117516 2018 WL 4374269 (Kan. App. 2018) which stated that a printout of an implied consent form in a DUI action was not the best evidence since the original was not lost or destroyed. SB 334 would eliminate this uncertainty by updating Kansas evidence rules with Federal rules.

 

 

 Attached Files:

Tags:  Abortion amendment  Author: Joseph N. Molina III  Contingency Fee Contracts  HB 2333  HB 2401  HB 2447  HB 2461 Public Litigation Coordination Act  HB 2500 Uniform Power of Attorney Act  HB 2533 Uniform Family Law Arbitration Act  Legal Advertising  Medicaid Expansion  SB 157  SB 269  SB 334 

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Abortion Amendment Takes Center Stage

Posted By Joseph N. Molina III, Tuesday, February 4, 2020

This week the Kansas Senate approved a constitutional amendment on abortion; Gov. Laura Kelly created a nominating commission for Kansas Court of Appeals openings, and the KBA testified on two bills.

Last Wednesday evening, the Kansas Senate approved SCR 1613 which allows the legislature to make laws concerning abortion. This amendment would be placed on the August primary ballot. The final tally was 28-12 to approve. SCR 1613 was amended once to make the August primary a “special election”. This change was to fix a technicality which required all constitutional amendments to be placed on a special or general election. The August primary did not qualify, thus the need to amend the resolution. The resolution now heads to the House which is dealing with its own constitutional amendment on abortion. The House debate should come next week. Passage in the House will be more difficult, with 84 votes needed to approve. See; https://www.cjonline.com/news/20200129/kansas-senate-passes-constitutional-amendment-on-abortion; See also; https://www.kansas.com/news/politics-government/article239732848.html

Last Tuesday, Gov. Kelly issued an Executive Order to create a nominating commission for the Kansas Court of Appeals. The commission will operate much as does the Supreme Court Nominating Commission. It will have 9 members, with 5 lawyers and 4 nonlawyers. Gov. Kelly will appoint all members to the commission including two from each congressional district and one chair. Linda Parks will be the Chair.

The KBA testified on two bills this week:

SB 269 – Increasing the retirement age for District Court Judges from 75-80 yrs. of age

The KBA joined Sen. Vic Miller and District Judge Norbet Marek in supporting the bill. The bill would allow a judge to serve to the age of 80. Currently a judge must retire upon reaching 75, unless their term of service extends past the age of 75. In that situation, the judge may serve till the end of their term. SB 269 would mandate a judge retire at age 80. Sen. Pyle (R-Hiawatha) had concerns that centered on the judicial selection process. He floated a term limit on judges but did not make that proposal official. The Senate Judiciary committee should work the bill in the coming weeks.

HB 2461 – Public Litigation Coordination Act

The KBA, KTLA, Kansas Counties, the League of Municipalities, Kansas School Board Association and seven other individual associations opposed HB 2461. This bill would prohibit public entities from entering contingency fee contracts without the written approval from the Kansas Attorney General. The purpose of the bill is to allow the state the opportunity to coordinate litigation of large public health issue, specifically opioids and vaping. The KSAG is willing to negotiate the specifics of the bill to carve out legal services that are not the intended target of the legislation and narrow the scope to satisfy local government issues, but the underlining policy of contingency fee contracts remains an issue. We will work with the committee on any amendments.

The KBA is monitoring several other bills including:

HB 2401 – LLC Quorum requirements

Rep. Boog Highberger (D-Lawrence) proposed a bill that would lower the quorum requirements for certain corporations to 10 percent. This bill is designed to assist the Merc Co-Op in Lawrence, Kansas, increase its corporate stock number. The Merc Co-Op would like to raise additional capital, but its corporate structure requires a vote by shareholders. The Merc board has attempted to hold an annual meeting to make these changes but has been unable to attain a quorum; so Rep. Highberger offered HB 2401. Our Corporate Law Section has concerns that this will negatively impact corporate law in Kansas.  The section objects to legislation designed for a single entity and believes that non-legislative solutions are available to the Merc. The KBA will work with Rep. Highberger on the bill as it progresses.

HB 2500 – Uniform Power of Attorney Act

The bill is sponsored by the Kansas Judicial Council. The council proposed a similar bill two years ago which was roundly criticized and eventually withdrawn from consideration. The goal of the legislation is to require third parties to accept durable Power of Attorneys. The KBA Title Standard Committee is closely monitoring this bill.

Next week, the KBA will be involved in at least two bills:

SB 334 – Amendments to authentication of records and documents

The Kansas Judicial Council is attempting to amend the “Best Evidence Rule” in Kansas. SB 334 would modernize our authentication of document rules to better conform to the federal rule of evidence. Dean Jim Concannon is testifying in support of the bill and on behalf of the Kansas Judicial Council.

HB 2553 – Uniform Family Law Arbitration Act

The KBA approved the Uniform Family Law Arbitration Act at our December meeting. This bill has been introduced, and a hearing is set for Wednesday, February 5th in House Judiciary.  Prof. Linda Elrod will testify on the bill, and Larry Rute has submitted testimony on behalf of the KBA.

Tags:  2020 Legislative Session  abortion  Author: Joseph N. Molina III  HB 2401  HB 2461  HB 2500  HB 2553  LLC Quorum requirements  nominating commission for Court of Appeals  Public Litigation Coordination Act  SB 269 raising judges' retirement age to 80  SB 334  SCR 1613 

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Hearings Upon Hearings

Posted By Joseph N. Molina III, Tuesday, January 28, 2020
Updated: Tuesday, January 28, 2020

Week 2 of the Kansas Legislature saw significant movement on the constitutional amendment on abortion and the judicial funding lawsuit. The abortion amendment took two days to move out of committee. The House Fed/State Committee and the Senate Judiciary held joint sessions to hear identical proposals. The consolidation was to save time and speed up the process. Over 180 pieces of testimony were submitted to the committee, and a few dozen individuals and organizations testified on the amendment. The Senate and House Committees approved the amendments as introduced after they repelled several amendments from Democrats. The amendment moves to the floor of both chambers for a vote. To pass it will need 84 votes in the House and 27 votes in the Senate. Rumor has it that the House will take up the issue by the middle of next week. If passed, the amendment will be placed on the primary ballot in August. See; http://www.kslegislature.org/li/b2019_20/measures/scr1613/ and; http://www.kslegislature.org/li/b2019_20/measures/hcr5019/

Chief Justice Marla Luckert made several new friends in the capitol when she dismissed the judicial funding lawsuit. The dismissal will allow the court and legislature to begin talking about the budget. There was significant tension brought on by the lawsuit, but legislators feel that this is new day and a change from previous administration. No concrete proposals for judicial pay increases have been pushed forward by legislators, but the dismissal has been seen as progress. See; http://kscourts.org/Kansas-Courts/General-Information/2020-News-Releases/012220c.pdf

The KBA was active on two bills this last week. The first bill was HB 2447 expanding audio-visual technology in courtrooms. The KBA has supported these judicial efficiencies, and our support was well received. However, the Judiciary Committee had questions regarding witness testimony via teleconference. These concerns do not appear to be a fatal flaw in the bill, and a compromised should be reached.

The second bill is HB 2401, dealing with the quorum requirement for shareholder’s meetings for certain corporations. This is a bill proposed by Rep. Boog Highberger (D-Lawrence). The KBA will monitor this bill closely and may propose amendments when appropriate. The bill will be worked next Wednesday in House Fed/State Committee.

This week there are two bills that require attention.

The first is HB 2461 which restricts public entities from contracting for contingent fee legal services. The bill is sponsored by Kansas Attorney General’s office and would require public entities to receive permission from the KSAG prior to entering a contingent fee contract. We have seen several municipalities sue large corporations over the opioid epidemic and over underage vaping. Local units of government would need to apply to the KSAG for permission to enter these contracts. The KSAG will have sole discretion in approving the applications. Applications would be approved if the contract serves the public interest and does not impede the legal interest of the state.

The KBA will provide testimony on the right to sue and right to contract issues.

The KBA will also submit written testimony on SB 269, increasing to 80 years of age the mandatory retirement age for judges. This bill is sponsored by Sen. Vic Miller (D-Topeka). 

Tags:  2020 Legislative Session  abortion amendment  Author: Joseph N. Molina III  contingency fee services  HB 2401 HB 2461  HB 2447  judicial funding lawsuit  KBA  mandatory retirement age for judges  SB 269  Week 2 

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Week One Round-up

Posted By Joseph N. Molina III, Tuesday, January 21, 2020

As you are aware, the Kansas Legislature returned on Monday, January 13th for the 2020 legislative session. This year things got off to quite a start with overviews of the Hodes abortion case by the House Fed/State Committee and the Senate Judiciary Committee. The goal was to begin the conversation on a constitutional amendment limiting the right of abortion and curtailing the power of the courts on abortion issues. Two identical constitutional amendments have been introduced, one in each chamber. These amendments, HCR 5019 and SCR 1613, will be the focal point early in the session.

 

This Tuesday the House Fed/State and Senate Judiciary Committees will meet in a joint session to hear both amendments. It’s symbolic to hear these amendments one day before the anniversary of the Roe vs. Wade decision. The amendments contain some significant issues for moderate Republicans, namely the amendment is set to be on the primary ballot in August. Moderate Republicans are wary of this placement as it will drive more conservative voters to the polls which would place their position in jeopardy. With the current composition of both committees, it seems likely that the amendment will be passed favorably and sent to the floor where it will need 84 votes in the House and 27 votes in the Senate to pass. 

 

KBA Sections have already begun reviewing 12 proposals. These proposals range from criminal law bills to business association. None of the bills being reviewed by KBA sections have been set for hearing. This allows our experts a bit of time to fully process the proposals before making a recommendation. The KBA will introduce its proposal, Uniform Family Law Arbitration Act, this coming week.

 

The Judicial Branch introduced two procedural bills on Wednesday in House judiciary. The first is the expansion of audio/visual technology in courtrooms. The second deals with name changes on birth certificates. The KBA has previously supported the use of audio/visual technology in courtrooms as an improvement to judicial economy.  See; http://www.kslegislature.org/li/b2019_20/measures/documents/hb2447_00_0000.pdf

 

The second bill dealing with birth certificate name changes is appreciably more controversial. The bill itself simply requests the ability to open a case and assign a case number on orders for name changes to vital statistics. The controversy will arise when others attempt to expand the bill to include changes to biological sex on birth certificates. This possibility will create some avoidance to “work” the bill, and its passage is suspect. As a side note, when introduced, there was an audible groan from committee members. The bill language is not available online yet.

 

Sen. Vic Miller (D-Topeka) introduced a bill that increases the retirement age from 75 to 80 for Kansas District Court judges. The KBA has previously supported increasing the retirement age of state court judges. The Miller proposal increases the age to a hard 80. Currently a district court judge shall retire at age 75 unless the term ends after the judge reaches 75. In that case the judge may serve till the end of the term. See; http://www.kslegislature.org/li/b2019_20/measures/documents/sb269_00_0000.pdf

 

Later this week, the KBA will host the JoCo Bar and WBA for a legislative reception. The reception will be on the evening of January 23rd. I understand that several judges and Court of Appeals members plan to attend, but none of the Supreme Court justices. Their absence is a direct result of the lawsuit over salaries for the judicial branch. A number of legislators will be in attendance, so to avoid the appearance of impropriety, the Justices felt it best to skip the reception.

Tags:  2020 Legislative Session  Author: Joseph N. Molina III  AV technology in courtrooms  HCR 5019  KBA Legislative issues  name changes HB 2447  proposed constitutional amendments on abortion  SB 269 - retirement age for KS District Court judg  SCR 1613  Uniform Family Law Arbitration Act 

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Aaaaaaand.....They're Back!

Posted By Joseph N. Molina III, Monday, January 13, 2020

Yesterday, the 2020 Legislative Session began with a bit of a weather delay. Legislative staff were allowed to come in at 10 a.m.—which is surprising—due to icy fog. However, the start of the session was not postponed, and it went off as planned at 2:00 pm.

Day 1 was as quiet as I have seen in recent years. No formal committees met, and no floor action took place. Week 1 is much the same with the big exception being the State-of-the-State address later this evening. Gov. Kelly will address the Legislature and the state for the second time, but she has a year of experience behind her now. It is anticipated she will focus on Medicaid Expansion and tout the recent compromise reached with Senate Majority Leader Jim Denning (R-Overland Park). Last week, Gov. Kelly and Sen. Denning stood together to announce a plan to expand Medicaid in Kansas. See; https://www.cjonline.com/news/20200109/kansas-gov-laura-kelly-sen-jim-denning-reveal-bipartisan-medicaid-expansion-deal; See also; https://www.kansas.com/news/politics-government/article239115823.html.

The proposal, which was pre-filed as SB 252, has 22 Senate co-sponsors. This is one more than needed to pass. The compromised plan is not without obstacles though. Sen. President Susan Wagle (R-Wichita) continues to oppose expanding Medicaid, and she has several legislative procedures at her disposal to delay the bill from receiving a vote. Efforts will be made to bring the bill to the floor for a vote, but many of those same procedures have been thwarted in the past. There is a good chance that Medicaid Expansion will drag on and remain in the news for the better part of the session.

Gov. Kelly may also discuss tax cuts on food, tax on internet sales, state employee raises, and the reorganization of DCF and KDADS into a new department titled KS Department of Human Services. She is likely to touch on Osawatomie Hospital and Criminal justice Reform. This year, she won’t have to worry about a lagging state budget or underwhelming revenue projections; the Consensus Revenue Estimate Group has projected an additional $535 million over the next 24 months. This unexpected revenue will come in handy when its time to pay off school finance, expand Medicaid and provide state employees with additional benefits. The one hot topic concerning the budget is Gov. Kelly’s second attempt at amortizing KPERS. This would make KPERS payment slower in the short run but force payments to be made for additional years on the backend. Legislators balked at this proposal in 2019 and will most likely oppose it again in 2020. See; https://hayspost.com/posts/5e13ae2e57544d3fe90e8f4e

As for the legislature, things will pick up steam next week. Look for overviews on the budget, updates on the abortion amendment and the introduction of dozens of bills. Should be an interesting start to the year.

To access live updates during the session, you can follow us on twitter @KansaBarLeg. Look for our Big Item of the Day and Pic of the Day beginning on Jan 13th.

Tags:  2020 Legislative Session  amortizing KPERS  Author: Joseph N. Molina III  Consensus Revenue Estimate Group  Kansas Department of Human Services  Medicaid Expansion  sales tax  SB 252 

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144 Hours

Posted By Joseph N. Molina III, Monday, January 6, 2020
Updated: Monday, January 6, 2020

In six days (144 hours), the Kansas Legislature will begin its 2020 legislative session. The session is scheduled to run 90 days, sans a major revenue issue, and a session planner has already been released.  The planner sets major deadlines that legislators to use to track their progress. The session planner deadlines (subject to change) for 2020 are:

Click image for full size
  • Monday, Jan. 13….Session Begins
  • Wednesday, Jan. 15….State-of-the-State Address to the Legislature by the Governor
  • Thursday, Feb. 27….House of Origin Deadline
  • Wednesday, March 25….Second House Deadline
  • Friday, April 3….First Adjournment
  • Monday, April 27….Veto Session Begins
  • Wednesday, May 20….90th Calendar Day

Quick note—these deadlines are significant, but there are procedures that can extend the deadline for individual bills. This process is called “blessing” a bill by exempting it from certain deadlines by referring the bill through “exempt” committees (including Senate Ways and Means, House Appropriations, and Federal and State Affairs Committees in both chambers).

It is also important to remember that 2020 is a carry-over year for bills not passed in 2019; there are nearly 700 bills that will carry-over from 2019. Which of these bills receive legislative attention remains to be seen, but rest assured something that was dormant in 2019 will be revisited in 2020.

There will be new challenges in 2020, but for the first time in a decade, one of those challenges won’t be school finance. The 2019 Legislature was able to patch together a constitutionally adequate formula by adding $390 million more dollars for schools.

The State also appears to be in a much better place financially than previously thought. The State is expected to receive an additional $525 million based on projections. This should pay for the school finance bill this year with some left over. How those funds are appropriated is an issue for 2020 legislators.

Besides the budget, legislators will wrestle with several big items, including: They include:

  • Abortion Constitutional Amendment
  • Judicial Selection Amendment
  • Non-economic Damages Cap
  • Banks vs. Credit Unions
  • Medicaid Expansion
  • Criminal Justice Reform

For its part, the KBA will be gearing up to work on several technical proposals in 2020. The KBA will lobby for legislative approval for the Uniform Family Arbitration Act. This proposal has been in the works for nearly a year. The KBA will also be involved in Power of Attorney legislation, judicial selection proposals, shared parenting issues and electronic notary updates. As always, the KBA will monitor bills of interest to the profession and track them on our 2020 Bill Tracking Chart found at www.ksbar.org.

For information on legislators, bills and committee assignments you can also go to: www.kslegisalture.org. To receive live updates during the session, follow us on twitter @KansasBarLeg. Look for our Big Item of the Day and Pic of the Day starting Jan 13th.

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Tags:  2020 issues  2020 Legislative Session  Author: Joseph N. Molina III  exempt committees  Kansas Legislature  session deadlines 

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Changes in the Line-Up of The Supremes

Posted By Joseph N. Molina III, Tuesday, December 17, 2019

The Kansas Supreme Court has seen significant change in the last five days. Chief Justice Nuss retired last Friday, December 13th, 2019.  Yesterday, Monday, December 16, Gov. Laura Kelly appointed District Judge Evelyn Wilson to the Supreme Court.  Today, Dec. 17th, Justice Marla Luckert ascends to the Chief Justice role. That is a lot of office moving!

Nuss was sent on his retirement with a well-deserved reception in the lobby of the Judicial Center. Nuss was appointed by Gov. Bill Graves in 2002 and named Chief justice in 2010. Nuss has presided over 17,000 cases and authored 300 decisions. He oversaw a staff of nearly 2,000 employees and instituted new technologies throughout the state court system. Nuss retires after a 37-year-long legal career. See; https://www.gctelegram.com/news/20191214/chief-justice-lawton-nuss-retires-from-kansas-supreme-court; See also; https://www.kmuw.org/post/retiring-chief-justice-lawton-nuss-reflects-time-kansas-supreme-court

Gov. Laura Kelly made her first Supreme Court appointment yesterday when she announced Shawnee County Chief Judge Evelyn Wilson would take a position on the Court. This position was created with the retirement of Justice Lee Johnson. Wilson was one of three nominees for the post; the other two up for consideration were Dennis Depew and Steve Obermeier.

Click image to view news release

Wilson had served as a district court judge since her appointment in 2004. She was in private practice prior to her appointment to Shawnee County Court. She also did a short stint as an adjunct law professor with Washburn Law School. See; https://www.hutchnews.com/news/20191216/gov-laura-kelly-appoints-shawnee-county-district-judge-evelyn-wilson-to-kansas-supreme-court/1; See also; https://www.ksnt.com/capitol-bureau/governor-kelly-names-new-kansas-supreme-court-justice/

Later today, Justice Marla Luckert will make it official and be named as Chief Justice of the Kansas Supreme Court. Luckert will be just the second female Chief Justice. The first was Kay McFarland who held the position from 1995-2009. Luckert was sworn-in to the Supreme Court on Jan 13, 2003 after being appointed by gov. Bill Graves. See; https://www.usnews.com/news/best-states/kansas/articles/2019-12-14/kansas-supreme-court-getting-new-member-new-chief-justice

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Tags:  Author: Joseph N. Molina III  Gov. Laura Kelly's first appointment to the Suprem  Judge Evelyn Wilson selected to the Supreme Court  Justice Luckert swearing-in as Chief Justice  Kansas Supreme Court  Nuss retirement  Weekly20191217 

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Kansas Criminal Justice Reform Commission

Posted By Joseph N. Molina III, Monday, December 2, 2019
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From time to time, the Kansas Legislature creates commissions to review a specific issue. That may include redistricting, Medicaid or KPERS. In 2019, the Kansas Legislature created the Kansas Criminal Justice Reform Commission. The commission, enacted as part of HB 2290, was established to review all aspects of the criminal justice system. The commission is large, composed of 23 members, with Sedgwick County DA Marc Bennett as chairperson. Other members include current legislators and judges, members of the healthcare system and legal experts.

The commission is charged with the following:

  • Analyze the sentencing guideline grids for drug and nondrug crimes and make recommendations for legislation that will ensure sentences are appropriate;
  • Review the sentences imposed for criminal conduct to determine whether the sentences are proportionate to other sentences imposed for criminal offenses;
  • Analyze diversion programs utilized throughout the state and make recommendations with respect to expanding diversion options and implementation of statewide diversion standards;
  • Review the supervision levels and programming available for offenders who serve sentences for felony offenses on community supervision;
  • Study specialty courts and make recommendations for the use of specialty courts throughout the state;
  • Survey the availability of evidence-based programming for offenders provided both in correctional facilities and in the community, and make recommendations for changes in available programming;
  • Study the policies of the Kansas Department of Corrections (KDOC) for placement of offenders within the correctional facility system and make recommendations with respect to specialty facilities including, but not limited to, geriatric, healthcare, and substance abuse facilities;
  • Evaluate existing information management data systems and make recommendations for improvements to data systems that will enhance the ability of criminal justice agencies to evaluate and monitor the efficacy of the criminal justice system at all points in the criminal justice process; and
  • Study other matters as the Commission determines are appropriate and necessary to complete a thorough review of the criminal justice system.

Criminal justice reform has been on the front page of several newspapers lately. Most recently, in Oklahoma, it was reported that they released more than 450 prisoners in a single day. See; https://slate.com/news-and-politics/2019/11/oklahoma-clemency-drug-criminal-justice-reform.html

While this is an extreme example of criminal justice reform clemency, it sheds some light onthe thinking of some criminal justice advocates.

In Kansas, the CJRC has submitted its report to the Kansas Legislature. This report can be read online at (ksbar.org link). 

Some highlights include:

  • Specialty prisons with priority on substance abuse treatment;
  • Repurpose existing building for geriatric/cognitive care within correctional facility;
  • 240-bed substance abuse centers;
  • Lowering certain drug offenses;
  • Increasing the felony loss threshold from $1000 to $1500;
  • Revisit fees associated with restricted licenses.

These conclusions and recommendations will be reviewed by the legislature. The 2020 Kansas Legislature will be responsible for moving these recommendations forward, should legislators wish to adopt them.

See:

https://www.kansascity.com/news/politics-government/article226803154.html - KC Star

https://www.wibw.com/content/news/Criminal-Justice-Reform-Commission-to-focus-on-mental-health-substance-abuse-558617481.html  - WIBW

http://www.derbyinformer.com/news/opinion/criminal-justice-reform-commission-may-have-big-job-ahead/article_41d6004c-ce64-11e9-a4b8-4345b9db9911.html - Derby Informer

https://www.hdnews.net/opinion/20191119/editorial-kansas-should-follow-oklahomas-criminal-justice-lead - Hays Daily News

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Tags:  Author: Joseph N. Molina III  Copy of KCJRC Report  HB 2290  Kansas Criminal Justice Reform Commission  Marc Bennett  Oklahoma prison release 

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Supreme Court Applicants' Names Released

Posted By Joseph N. Molina III, Tuesday, November 19, 2019

The Kansas Supreme Court Nominating Commission received 17 applications for a spot on the state’s highest court this week.  These 17 individuals are vying for the position coming open when Chief justice Lawton Nuss retires on December 17th. Several applicants had previously applied for the court when the commission interviewed for Justice Lee Johnson’s position in October.

The 17 applicants include five judges and 12 lawyers. Among these 17 are the three finalists for the current open position, Dennis Depew, Judge Evelyn Wilson and Steve Obermeier. Gov. Laura Kelly has a few more weeks before she is required to select one of these three finalists for the post left open by the retirement of Justice Lee Johnson. However, the deadline to apply for the Nuss opening was last week. In ordered to be considered by the Supreme Court Nomination Commission for the second position, they all had to reapply.

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The applicants are:

  • Kristafer R. Ailslieger, lawyer, Topeka
  • Daniel Cahill, judge; Kansas City
  • Angela D. Coble, lawyer, Salina
  • Henry R. Cox, lawyer, Shawnee
  • Dennis D. Depew, lawyer, Neodesha
  • Randall L. Hodgkinson, lawyer, Topeka
  • Michael P. Joyce, judge, Leawood
  • Russell J. Keller, lawyer, Fairway
  • Michael C. Leitch, lawyer, Lawrence
  • Thomas E. Malone, judge, Topeka
  • Steven J. Obermeier, lawyer, Olathe
  • David A. Ricke, judge, Rose Hill
  • Lyndon W. Vix, lawyer, Maize Brenda S. Watkins, lawyer, Olathe
  • Kristen D. Wheeler, lawyer, Wichita
  • Evelyn Z. Wilson, judge, Topeka
  • Marcia A. Wood, lawyer, Wichita

See; http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/111819a.pdf

The date for interviews will be determined on November 20th.

The Commission is a nine-person panel with five lawyers and four 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 meetings and subject to the Kansas 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 its 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 will review each applicant’s:

  • Legal and judicial experience
  • Educational record
  • Character and ethics
  • Service to the community
  • Impartiality
  • Respect for colleagues

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

The KBA will monitor the interviews.

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Tags:  Author: Joseph N. Molina III  Chief Justice Nuss  justices retiring  Kansas Supreme Court Nominating Commission  KSCNC make-up  KSCNC process  Supreme Court candidates' qualifications 

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