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.
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.
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:
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.
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.
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.
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).
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.
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.
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.
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:
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
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.
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!
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.
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.
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.
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.
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
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
Character and ethics
Service to the community
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.
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.