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.
With nearly all the votes counted—some being recounted—the 2018 Kansas election season comes to an end. The big story was the victory by Kansas State Senator Laura Kelly over Kansas Secretary of State Kris Kobach. The unofficial tally has Kelly defeating Kobach 48%-43%. Independent candidate Greg Orman fell way behind with only 7 percent. This is the first time since 2009 that a Democrat has held the Kansas governor’s office, but it does stick to the tradition of power changing hands from Republican to Democrat. Another interesting point is that the last three democrats to win statewide elected office were women. Kelly won the urban centers convincingly, outpacing Kobach by 43,000 votes in Johnson County, 16,000 votes in Shawnee and 8,000 in Sedgwick.
The same can not be said for the other statewide Democratic candidates, who all lost bids for higher office.
Attorney General’s Office will be retained by incumbent Derek Schmidt. This will be AG Schmidt’s third term; Schmidt won easily over Lawrence lawyer Sarah Swain 59% - 41%.
Insurance Commissioner Vicki Schmidt defeated Nathaniel McLaughlin 63% - 37%. Vicki Schmidt received the most votes among all Republican candidates. Her state senate seat will need to be filled via precinct committee person vote in the near future.
Secretary of State was won by Scott Schwab. Schwab is a former state representative and previous speaker pro tem. Schwab won by a 53% - 44% margin.
State Treasurer will be retained by incumbent Jake LaTurner who defeated Sen. Marci Francisco 58% - 42%. LaTurner was previously appointed to fill the seat left when U.S. Rep. Ron Estes was elected.
The Kansas House of Representatives will look similar in numbers; the GOP increased its advantage by one: 86-39. The philosophical bent of that 86 is where the differences lie, and they are significant. Republican conservatives grew their numbers this election cycle by winning several seats held by moderates in the primary, and then by beating some rural Democrats in the general. Democrats did their fair share of beating moderates, but in urban areas—namely Johnson County—where Laura Kelly helped democratic candidates in favorable districts.
The 2019 House of Representatives will see 28 new faces and 15 legislators with legal experience or education. The new lawyer/legislators include Rep.-elect Mark Samsel, R-5th District; and Rep. -elect Kellie Warren, R-28th District.
Members of the Kansas Senate were not on the ballot this season but there was one election race featuring Sen. Richard Hilderbrand who was appointed to the seat. Hilderbrand won the race by 14 points. Due to the general election results, the Senate will also need to fill Gov.-elect Laura Kelly’s seat, along with Lynn Rodgers’ and Vicki Schmidt’s seats.
The 2019 session will be interesting knowing there is a Democratic on the 2nd floor. There will be a push to expand Medicaid, finish up the school finance issue and reduce waiting periods for services. These issues still require legislative approval which may be more difficult to achieve given the new composition of the Kansas House. What the governor has stated she will do and what she can do may be two different things.
In eight days, Kansans will head to the polls to elect a new governor, four U.S. Representatives, four statewide officials, one state senator and 125 Kansas representatives. The most watched statewide race continues to be the Kansas Governor’s race featuring five tickets. The GOP ticket of Kris Kobach/Wink Hartman vs. Democrats Laura Kelly/Lynn Rodgers vs. Independents Greg Orman/ John Doll. Also, in the mix are Richard and Nathaniel Kloos (I-Topeka) and Jeff Caldwell/Mary Gerlt (L-Leawood).
Some districts provide information on the judges. For instance, in 18th Judicial District (Sedgwick County) the Wichita Eagle and the Wichita Bar Association do an online survey every two years. They provide the results via website. This year’s survey can be found at https://www.kansas.com/news/special-reports/judging-the-judges/.
In retention elections, district judges do not compete against an opponent; rather, voters have the option to vote “yes” to retain or “no” to remove from the bench. To keep the seat, the judge must receive a majority of “yes” votes. If the judge receives a majority of “no” votes the position becomes vacant.
The 10th Judicial District also provides voter information on judges sitting for retention in that district. The Johnson County Bar Association puts together these judicial evaluations by surveying more than 2,000 Johnson County lawyers. The results can be found at: https://www.jocobar.org/page/judicialevals2018
In the past, evaluations were offered for Kansas Appellate Court judges, but in 2012, those funds were diverted away from the Kansas Commission on Judicial Performance. Since that time, other non-profit associations have tried to take up the evaluation process with some success, but this year, I am unaware of any evaluations for the seven courts of appeals judges up for retention.
Special thanks and appreciation to our Reception Hosts:
Alderson, Alderson, Weiler, Conklin, Burghart & Crow, LLC John Peterson & Bill Brady/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
Attendance is FREE for all events RSVP by November 16th for each event you wish to attend.
Contact: Joseph N. Molina, KBA Director of Government Affairs
On Tuesday, November 6, Kansans will head to the polls to elect a new governor, four U.S. Representatives, four statewide officials, one state senator and 125 Kansas representatives. These races— especially for governor—will dominate our televisions, radios and mailboxes for the next six weeks. Most of the campaign money will be spent on the nine statewide races, and your individual districts will see thousands of dollars used on local races. What probably won’t get much attention this year is those other candidates down ballot: candidates for court of appeals judges and district court judges—even some individuals running for magistrate judge spots.
Kansas uses three methods to select its judges. The Kansas Supreme Court and over half of all district court judges are picked using the merit selection process. The court of appeals judges are selected using a modified appoint/confirm process, leaving the remainder to be selected via partisan elections in their local jurisdictions. While the selection process differs significantly (Kansas is the only state that uses all three processes) they have one thing in common: to keep your seat, you must appear on the general election ballot. In partisan election districts, a judge may have to face off against an opponent. In districts using the merit selection process, a judge must sit for retention. Either way, to stay on the bench, judges must face the citizens of Kansas and get their votes. See: http://www.kscourts.org/kansas-courts/district-courts/process.asp
Elections of judges in Kansas are very similar to elections for any other office. There is a primary in which the individual with the most votes advances to the general election to face off against the winner from the other party. The winner of the general election takes the bench with a four-year term, after which the process repeats itself.
This year the following districts will hold partisan judicial elections:
Some districts provide information on the judges. For instance, in the 18th Judicial District (Sedgwick County), the Wichita Eagle and the Wichita Bar Association do an online survey every two years. They provide the results via website. This year’s survey can be found at: https://www.kansas.com/news/special-reports/judging-the-judges/.
In retention elections, district judges do not compete against an opponent; rather, voters have the option to vote “yes” to retain or “no” to remove from the bench. To keep the seat ,the judge must receive a majority of “yes” votes. If the judge receives a majority of “no” votes, the position becomes vacant.
The 10th Judicial District also provides voter information on judges sitting for retention in that district. The Johnson County Bar Association puts together judicial evaluations by surveying over 2,000 Johnson County lawyers. The results can be found at: https://www.jocobar.org/page/judicialevals2018
Kansas Court of Appeals judges must sit for retention every four years (six years for Kansas Supreme Court Justices). The process is staggered so only seven court of appeals judges face retention each election. As in district judge retention elections, voters have the option to vote “yes” to retain or “no” to remove from the bench. The only difference is, the entire state gets to decide on court of appeals judges.
In the last ten days I have travelled over 1050 miles, visiting three great towns, to meet with more than 300 Kansas lawyers—and it was fantastic.
On September 7th
KBA’s Meg Wickham and I attended the SW Bar Association Annual Conference in Dodge City. It was a full-service event. Dave Rebein hosted the two-day conference. I wrote about this event in last week’s Advocate. Check it out here.
On September 14th
Danielle Hall and I travelled to Republic County to visit with lawyers from the 12th Judicial District. This was their fall CLE Conference where Danielle presented on technology issues facing lawyers, and I delivered my legislative update. Chief Judge Kim Cudney hosted the event for the group at the Belleville Country Club.
Finally, on September 17th
KBA Secretary/Treasurer Cheryl Whelan and I participated in the 60th Annual Concreto festival in Allen County. The long running event hosted by Chief Judge Dan Creitz included a CLE, golf tournament and cook-out at an old rock quarry in the country. This is a unique event that I strongly recommend attending.
As I have made this year’s road trip across Kansas I have noticed a few things:
Everything is green, crops are doing well, and ponds are full;
Lawyers are engaged and appreciate our visits almost as much as we appreciate the invites;
There is good BBQ where ever you go in Kansas;
The upcoming election weighs heavy on our members’ minds, and they are fully aware of the implications;
A traditional Kolache is a dessert I should have eaten sooner;
Lawyers are a fun, warm group – We should visit with them more often.
Some of the unsung heroes are the administrative assistants who coordinate these events. I would like to personally thank Ash-Leigh Drake (Dodge City); Gayle Monty (Washington) and Kendra Klassen (Iola) for all their hard work making these events possible.
The Southwest Kansas Bar Association Annual Meeting was held last week in Dodge City, and the KBA was fortunate enough to attend. The festivities started out with the Kick-Off Celebration at Boothill Museum. This event was hosted by Rebein Brothers PA and featured live music, dancing and a spread of food found throughout the museum. It was a great time with good friends.
In attendance was Chief Justice Lawton Nuss who was presented with anAmerican flag that had flown over the 1st Forward Surgical Team HQ at Camp Brown, Kandahar Province, Afghanistan.
Other notable attendees were Justice Lee Johnson, KU Dean Stephen Mazza and Washburn Law Dean Carla Pratt. This was Dean Pratt’s first trip to Dodge.
The Southwest Bar Association Annual Conference is also famed for their generous and unique speaker’s gifts. Throughout the years, speakers have been presented with an assortment of items; this year CLE presenters were given personalized belt buckles. This is a first for me!
The SW Kansas Bar Association Annual Conference also included a full day of speakers. We all met at the Santa Fe Depot Theatre Company just off Wyatt Earp Blvd. where both law school deans opened the day’s events. The program included an interview with Justice Lee Johnson, an ethics presentation by Kansas Court of Appeals Judge Steve Leben, a business meeting with the Kansas Legal Services and a keynote by Michael Koskoff, lawyer and co-writer of the movie “Marshall”.
KU Law Associate Dean Lumen Mulligan discussed better practice tips; Shawn Leisinger from Washburn Law discussed how to advise clients; Kurt Kerns discussed the psychological perspective on criminal cases; and I batted clean-up with a legislative review. It was a busy day.
I always enjoy going to Dodge City for this event. It’s a wonderful town with very gracious, generous folks. I’d like to thank Dave Rebein for the hospitality and Ash-Leigh Drake for coordinating the event. If you haven’t had the chance to attend this program I recommend it highly. It is a bit of a drive, but at least this year the grass was green, the dust was low and Dodge still smelled like money! Thanks for the invite—we will see ya next year!
Photos Below: Dave Rebein and his wife Bernice Rebein, Dodge City, present Chief Justice Lawton Nuss with a U.S. Flag. Chief Justice Nuss officiated the wedding of Major Benjamin Rebein and his former research attorney Liz Rodgers.
September is shaping up to be one of the busiest months of the year for the KBA! We will be all over the state attending local bar events, legislative meetings, social outings and meeting new lawyers—all wrapped by the 4th KBA Board meeting in Wichita at the end of the month.
With the Primary challenges behind us we can now focus our attention on November and the general election. Kansans will head to the polls to select four congressional seats, all statewide offices, 125 House races and 1 Kansas Senate seat. Nearly half of all House races are uncontested (62 total, 37 Republicans and 25 Democrats). The lone Kansas Senate seat is a three-way affair with Senator Richard Hilderbrand (R-Galena) facing off against Bryan Hoffman (D-Mulberry) and San Habjan (L-Frontenac).
1st District - Congressman Roger Marshall (R-Great Bend) will face off against Alan LaPolice (D-Clyde). This is a rematch from 2016 when Marshall bested LaPolice 65%-26%.
3rd District – Congressman Kevin Yoder (R-Overland Park) is being challenged by Sharice Davids (D-Kansas City). Many also see this race as very close.
4th District – Congressman Ron Estes (R-Wichita) will face Wichita lawyer James Thompson (D-Andover). This is a rematch from the 2017 special election where the Estes beat Thompson 52%-46%.
This is a crowded race featuring five tickets. The GOP ticket of Kris Kobach/Wink Hartman vs. Democrats Laura Kelly/Lynn Rodgers vs. Independents Greg Orman/John Doll. Also, in the mix but getting very little air time are Richard and Nathaniel Kloos (I-Topeka) and Jeff Caldwell/Mary Gerlt (L-Leawood). This will be the most watched race of the season.
Secretary of State
After surviving a five-way race in the primary Scott Schwab (R-Olathe) will face political newcomer and Google Earth designer Brian “BAM” McClendon (D-Lawrence).
Kansas Attorney General
KSAG Derek Schmidt (R-Independence) looks to wrap up another four-year term when he faces off against Lawrence attorney Sarah Swain (D-Lawrence).
Kansas State Treasurer
Jake LaTurner (R-Pittsburg) will defend his seat against Sen. Marci Francisco (D-Lawrence). Both served in the Kansas Senate together.
Kansas Commissioner of Insurance
This is an open seat since current Insurance Commissioner Ken Selzer ran for governor in the Republican primary and lost. State Senator Vicki Schmidt (R-Topeka) goes up against Nathaniel McLaughlin (D-Kansas City).
Lawyers in the Legislator
Last session there were 18 legislators with legal training. Going into the 2018 General Election (by my count) only 16 are running for office. Sen. David Haley (D-Kansas City) is not up for reelection. Rep. Erin Davis decided not to seek reelection and Rep. Steven Becker (R-Buhler) lost a very close primary race to Paul Waggoner. The margin was just 5 votes.
Five Lawyer/Legislators are in uncontested races this November.
Rep. Dennis “Boog” Highberger (D-Lawrence: HD 54);
Rep. Vic “T-Bone” Miller (D-Topeka: HD 58);
Rep. John Carmichael (D-Wichita: HD 92);
Rep. Leonard Mastroni (R-La Crosse: HB 117);
Rep. Bradley Ralph (R-Dodge City: HD 119).
Eight Lawyer/Legislators are incumbents with challengers this fall. They include:
Rep. John Barker (R-Abilene: HD 70);
Rep. Jesse Burris (R-Mulvane: HD 82);
Rep. Blaine Finch (R-Ottawa: HD 59);
Rep. Tim Hodge (D-North Newton): HD 72);
Rep. Susan Humphries (R-Wichita: HD 99);
Rep. Fred Patton (R-Topeka: HD 50);
Rep. Jim Ward (D-Wichita: HD 86); and;
Rep. John Wheeler (R- Garden City: HD 123)
Three lawyers are in the general election. They include:
Mark Samsel (R-Wellsville). Mark is an attorney with Lathrop & Gage and a 2010 KU Law grad. He challenges Lassey Murphy (D-Lane) for the open seat in House District 5 vacated by Kevin Jones.
Kellie Warren (R-Leawood) defeated Rep. Joy Koesten in the August primary and now takes on Brian Clausen (D- Leawood) for the 28th House District. Warren has degree from Cornell and is a KU Law grad. She practices real estate law.
James Todd (R-Overland Park) is a former legislator (2013-2016) who is challenging Rep. Brett Parker (D- Overland Park) in House District 29. James is a KU Law Grad. This is a rematch from 2016 when Parker defeated Todd 52%/47%.
After reviewing the primary results, it appears Kansas has moved to the right just a bit with several moderate freshman having lost primary races. There is a question of how well many democrats will do in the general election given the national political climate. But the main event remains the governor’s race, the outcome of which will have a huge impact going into 2019.
Just last week Kansans went to the polls to select their candidates in the August Primary Election. Today, a full week later we are still counting votes. The Republican governor race is still in limbo. As of this writing, Kris Kobach leads Gov. Colyer by 206 votes; that is up from 191 on election night. But some big counties are reviewing provisional ballots as we speak, and things could change. See; https://www.kansascity.com/news/politics-government/article216625110.html
Further muddying the issue is the fact that some poll workers mistakenly advised unaffiliated voters to fill out provisional ballots instead of having them declare a party and then cast their vote. How those ballots are dealt with remains to be seen, but this is an area ripe for legal action.
Secretary of State - Rep. Scott Schwab (R-Olathe) vs. Brian McClendon
Commissioner of Insurance - Sen. Vicki Schmidt (R-Topeka) vs. Nathaniel McLaughlin
Kansas Attorney General - Attorney General Derek Schmidt vs. Sarah Swain (D-Lawrence)
State Treasurer - Jake LaTurner vs. Sen. Marci Francisco (D-Lawrence)
1st District - Congressman Roger Marshall easily won the primary race 79% to 21%. He should be reelected in November.
2nd District – Political newcomer Steve Watkins (R-Topeka) won a crowded primary field with 26% of the vote. He will face off against former state rep and the democrat nominee for the 2014 governor race Paul Davis (D- Lawrence). This should be an interesting race.
3rd District – Congressman Kevin Yoder won a three-way primary with 68% of the vote. He will face off against Sharice Davids. Another one to watch in November as many see this as a possible flip.
4th District – Congressman Ron Estes beat challenger Ron Estes. The Ron Estes’ won 100% of the vote in the 4th District. Congressman Ron Estes will face Wichita lawyer James Thompson. This is a rematch from the special election a few years ago where the congressman beat Thompson 52%-46%.
As elections go, this was and continues to be a very interesting year. Conservatives have the chance to claw back a few seats they lost in 2016, but Democrats see an opportunity to increase their numbers should the “Blue Wave” visit Kansas. How this all plays out remains to be seen but first, let’s finish counting the votes.