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.
On behalf of the Kansas Bar Association, I extend a huge, sincere thank you to our speakers and sponsors for an excellent Fall Legislative conference. We appreciate these dedicated professionals who took the afternoon to share their expertise with us.
Our speakers included:
Kate Baird, Deputy Disciplinary Administrator
Tim Graham, Director of Government Affairs for the Kansas Governor’s Office
Clark Shultz, Kansas Healthcare Stabilization Fund
David Morantz, Shamberg, Johnson & Bergman
Thomas Warner, Warner Law Office, PA
We also gratefully acknowledge the significant support provided by our sponsors for this year’s conference. These groups and individuals have supported the KBA’s Fall Conference since its inception in 2007. We appreciate their support and encouragement.
Our sponsors included:
Alderson, Alderson, Weiler, Conklin & Crow, LLC
John Peterson & Bill Brady & Sean Miller, Capitol Strategies
Kansas Bankers Association
Sneed Law Firm, LLC
Whitney B. Damron, P.A.
R. E. "Tuck" Duncan/Kansas Wine & Spirits Wholesalers Association
Foulston Siefkin LLP
Thank you again for all you do for the KBA. We look forward to next year.
Last week, the Supreme Court Nominating Commission met for two days to interview 19 applicants for the Kansas Supreme Court. The KBA sat through the process and live-tweeted the interviews. The public could view the interviews and voting, but few took advantage of the opportunity. By my estimation, there were three members of the press, four associations, a few court employees with the remainder being family of the candidates. At no time were there more than 16 people attending the process, but most of the time, fewer than nine people were in the gallery.
The Commission interviewed each applicant for 30 minutes. The questions were thorough and included education, experience and family life. Social media was discussed as well.
Dennis D. Depew – Depew a past President of the Kansas Bar Association and the Kansas School Board Association; he currently works as Deputy Attorney General in the Civil Division. He has held this post since leaving his family law firm in Neodesha, Kan. He was a partner in the Depew law firm from 1983-2015. He still owns a home in SE Kansas. He is a KU Law graduate, Class of 1983.
Steven J. Obermeier – Obermeier is an Assistant Solicitor General for the KSAG’s Office. He was hired in 2017. Previously Obermeier worked at the Johnson County District Attorney’s Office for 21 years. Obermeier worked with four different Johnson County DAs. Obermeier received is law degree from Washburn law in December 1982.
Hon. Evelyn Z. Wilson – Judge Wilson was appointed to the Shawnee County District Court in 2004. She has served a Chief Judge since 2014. Previously, she was in private practice with the firm of Wright, Henson, Somers, Sebelius, Clark and Baker in Topeka. She was managing partner for several years. Judge Wilson started her career in Oberlin, Kan., at the Lund Law Firm. She was an associate for seven years before going the firm in Topeka. Judge Wilson is a Washburn Law Graduate who earned her law degree in 1985.
Governor Kelly now has 60 days to select her nominee. This person will assume the position as Kansas Supreme Court Justice. The newly minted justice is required to sit for retention election next year.
The Commission is a 9-person panel with 5 lawyers and 4 non-lawyers. The commission members can be found here: http://www.kscourts.org/pdf/SCNCroster.pdf. The commission will be working under some new guidelines this session because the laws concerning commission meetings were amended recently. Those new laws make these interviews open meeting and subject to the KS Open Meetings Act. However, there are some differences in that the nominating commission can only enter executive session to discuss financial issues and KBI background check information. The commission has set a few guidelines of their own which can be found here: http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/091819c.pdf
The Supreme Court Nominating Commission is an independent body. Four of its members are appointed by the governor and represent each of the state’s four congressional districts; these appointees are not attorneys. Four more members are attorneys—elected by other attorneys within each of the congressional districts. The commission chair is an attorney elected by attorneys in a statewide vote.
The Commission reviews each applicant’s:
oLegal and judicial experience
oCharacter and ethics
oService to the community
oRespect for colleagues
The Commission will nominate the three most qualified applicants. Governor Laura Kelly will select one of the three nominees to be the next Kansas Supreme Court Justice.
The KBA will monitor the interviews and provide an update in the next Advocate.
The KBA provided testimony in support of the current method for selecting Kansas Supreme Court Justices. Jim Robinson represented the KBA at the hearing and provided the committee with the most significant scholarship on merit selection. Look for this testimony in the KBA Journal. The KBA took no other position at the hearing. The committee recommended that the issue be studied further in the 2020 session.
To be clear, altering judicial selection in Kansas remains a significant issue. Currently, SCR 1610, which would move Kansas to a Gov. appoint/Senate confirm model, is available to the Committee of the Whole. However, with this recommendation it is possible that SCR 1610 be re-referred to the Senate judiciary Committee for hearing. This committee has 11 members with 9 republicans and 2 democrats. Should SCR 1610 be passed out of Committee it would need 27 votes to pass out of the Senate. The KBA will monitor this issue closely going forward.
The Committee also recommended that the noneconomic damages issue be further studied. There appears to be a difference of opinion on how to read the Hilburn case. Opponents of caps feel that the Kansas Supreme Court invalidated all noneconomic damages caps, including those on medical malpractice. Some believe that the caps on Med Mal still apply since Hilburn was a personal injury case arising from an auto accident. How this is interpreted could affect how state agencies react in the future, think Healthcare Stabilization Fund or maybe even Worker’s Comp. The one constant is that all sides want more time to flush the issue out and wait for a case that could shed light on the court’s reasoning.
This next case will be ruled on by a court seating 2 new justices that did not originally hear the Hilburn case. It is important to remember that the Hilburn case was a close vote and adding 2 new voices to the discussion could swing the pendulum and uphold the cap. These are all simple hypotheticals now because no such case has been appealed and we are months away from adding 2 new justices.
The issue is already in front of the Legislature (HCR 5004), but it is plausible that a new constitutional amendment be drafted, with hearings scheduled in the early days of the 2020 session. To reach the ballot the measure needs 27 votes in the Senate and 84 votes in the House. Should this issue go down party lines every one of the 84 Republicans in the House would need to vote in favor of the measure to pass. This past session the House sustained Gov. Kelly’s veto on SB 67 dealing with the Abortion Reversal Pill. That vote was 83-41.
If you would like to hear more about caps on noneconomic damages, you are free to attend the KBA Fall Legislative Conference on Nov. 6th beginning at 2pm. Experts will cover the Hilburn case. RSVP to me at email@example.com to register.
On October 2nd the KBA will host its Trivia Night Fundraiser for Kansas Legal Services (KLS). The event will pit Washburn Law School against KU Law School in a battle of wits. The trivia contest will take place at the Historic Harley-Davidson. If you’re interested you can find more information here - https://www.ksbar.org/event/LawSchoolTrivia2019
The KBA will also attend the Wichita Bar Association’s Judges’ Day on October 3rd. WBA Judge’s Day will include a Golf Tournament, Tennis/Pickle Ball matches, a Bike Ride, an event at the Wichita Brewery and a BBQ at the Botanical Gardens. See; https://www.wichitabar.org/page/UpcomingEvents
The KBA will then meet with its Board of Governors on Friday October 4th at the WBA.
Finally, the 10-day run will end with the Investiture Ceremony for Rachel L. Pickering. Judge Pickering will be officially sworn-in at 3:00 p.m. on Friday, October 4th at the Shawnee county Courthouse.
Last week the KS Bar Association was invited to join members of the SW Kansas Bar Association in Dodge City for their Annual Conference. It was a wonderful time. The SW Bar provided excellent programming with an eventful reception at Boot Hill Museum. Things are happening at the Boot Hill museum as they add-on to the famous landmark with other features. Construction is moving ahead quickly.
We at the KBA would like to thank the SW Bar for the invitation. We would like to personally thank Lane Frymire, Sarah Heeke, Tom Black and Robert Bauer for a great two days. Also, special thanks to Rose Marquez and Barb Archuleta from Doll Law Firm and Deidra Mason from Bauer, Pike, Bauer, Wary & Caroll, LLC for helping make the CLE run so smoothly. Looking forward to 2020.
This week the KBA heads up to Concordia, KS for the 12th Judicial District Bench & Bar CLE. We are being hosted by Chief Judge Kim W. Cudney at the St. Joseph Nazareth Motherhouse. If you’re in the area swing on by and say hello.
The 2020 Session is approaching quickly. Summer break has ended, and Kansas lawmakers are attending Interim Committees. These committees will focus on a variety of issues such as criminal justice reform, retail electrical rates, and KanCare Oversight. However, bigger issues are on the horizon.
The legislature will look at several proposals in 2020 that may end up on the election ballot.
Merit Selection will be debated in 2020 ,with its opponents hoping to get a constitutional amendment on the ballot. There is currently a proposal in the Kansas Senate, SCR 1610, that would change Article 3 from a merit selection process to a governor appoint/senate confirm model. This is the process used for the Kansas Court of Appeals—the same process used this past session by Gov. Kelly that has renewed the debate on judicial selection. While SCR 1610 is on the table, it may not end up being the proposal championed by opponents of merit selection. The Kansas Legislature will hold interim committee meetings this fall to get the ball rolling. The KBA has a long-standing policy supporting merit selection for Kansas Appellate Courts.
We may also see a debate on whether the legislature may impose limits on the amount of money a person can receive for non-economic injuries. This debate is also spurred by a Kansas Supreme Court ruling in the past year. The ruling, Hilburn v. Enerpipe Ltd,dealt with a car accident. The Court found that the state’s non-economic damages cap of $325,000 violated the plaintiff’s right to have a jury determine compensation owed the injured. See; https://www.kansascity.com/news/state/kansas/article231561483.html
Supporters of a statutory cap would also like to see the constitution changed to allow the legislature to limit the amounts recovered for non-economic injury.
These are very large issues to tackle in an election year. They are wide ranging, with a multitude of interested parties—sometimes overlapping interest groups—that will require significant study over a relatively short period of time. How many amendments make it to the ballot remains to be seen, but it it sets the stage for an interesting 90 days in 2020.
Each fall the KBA heads out of Topeka to visit lawyers across the state. In the past, we have visited Liberal, Washington County, Salina and Hays.
This fall is no different, as we have plans to visit the Johnson County Bar on Sept. 4th for its monthly luncheon. I will provide a short update of the 2019 legislative session and some possible issues going into 2020. The luncheon is set for 11:45 at the Double Tree Hotel in Overland Park. See; https://www.jocobar.org/events/EventDetails.aspx?id=1207495
The KBA will also participate in the Washburn Law School Golf Classic and Ethics CLE on Sept 19th. Hosted by the Washburn University Alumni Association and Foundation, it will take place at TopGolf in Overland Park. For more details please visit - https://latest.facebook.com/events/493616918051556/
Finally, the KBA will attend Judges Day in Wichita the first week in October. This annual event includes a Fun Run to the courthouse, a Bike Ride, Pool and Golf Tournament and a Tennis & Pickle Ball match. A wonderful BBQ at the Wichita Botanical Gardens wraps it all up. For more info - https://www.wichitabar.org/events/EventDetails.aspx?id=1171537
The KBA will hold its Fall Board of Governors Meeting on October 4th. If you would like to learn more about this meeting, please visit the KBA website at www.ksbar.org/event/BOGFall2019