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.
Every session there are proposals that fail to advance through the legislative process. Some lack the necessary attention; others are passed over for other, more pressing matters. However, a few need extra work—more eyes on the idea, if you will. The process to review and study proposals is handed off to interim committees. These committees, composed of legislators appointed by leadership, undertake the additional task of reviewing specific aspects of proposals over the summer and fall. The committee can be a joint venture with members from both chambers, or it can be set up for members from one chamber. The Legislative Coordinating Council establishes these interim committees, determines the issues for study and helps schedule meetings.
This summer, the LCC has agreed to study judicial selection. Sen. Ty Masterson (R-Andover) introduced a constitutional amendment that would alter how justices are selected in Kansas. Masterson requested an interim committee on the subject, and last week, the LCC granted a two-day review.
This interim committee will examine the process for selecting judges/justices in Kansas as well as a review of recent Kansas Supreme Court decisions. Speaker of the House Ron Ryckman (R-Olathe) requested the review of decisions.
This interim committee, comprised of both Senate and House judiciary committee members, will look at Kansas Supreme Court decisions and whether those decisions were influenced by the process for selecting justices.
Some are concerned that recent, controversial court opinions on abortion (Nauser & Hodes case) and noneconomic caps (Hilburn v. Enerpipe LTD) would have been decided differently had there been a different selection model in place.
Kansas elections season is a year off, but things are already picking up steam. In 2020 all 125 House seats are up for elections as are all 40 Kansas state senate seats. However, the top of the ticket race will be the U.S. Senate seat, where Republicans have dominated. It has been four score and seven years since Kansas sent a Democrat to the U.S. Senate.
These types of races create open seats in the House and allow freshman legislators to have a larger say in House leadership races. How this plays out remains to be seen, but we are sure to hear more about it over the next 12-16 months.
While it may be difficult to think about the 2020 Legislative Session when the 2019 Legislature has just completed its work, perseverance is necessary. Individual members, local bar associations, committees, and sections may all submit proposals. Each proposal will be reviewed by the appropriate section or committee before consideration. The deadline to submit proposals to the KBA is September 15th, 2019. Therefore, it is imperative that you begin drafting your proposal now and submitting it to the appropriate section.
The KBA Legislative Committee will meet this November to consider all legislative proposals for the 2020 session.
All proposals should be mailed to:
Kansas Bar Association
1200 SW Harrison Street
Topeka, KS 66612
On June 14th the Kansas Supreme Court released two monumental rulings. The first was Gannon v. State and the second was Hilburn v. Enerpipe LTD.
We are all familiar that the Gannon decision refers to the school finance lawsuit that stretches into a decade of legal arguments. This past session, the Kansas Legislature added nearly $360 million to K-12 school funding over the next four years. The legislature was hopeful that the Supremes would find this amount constitutional and end the lawsuit; the legislature got half of its wish. The Court found that SB 16’s financial adjustments to the safe harbor plan brings the State into substantial compliance with previous Gannon rulings. However, the court retains jurisdiction to ensure that the four-year plan is implemented. The court justified retaining jurisdiction by stating:
"[T]he judiciary clearly has the power to review a law and potentially declare it unconstitutional. But this power is not limited solely to review. It also includes the inherent power to enforce our holdings. [Citations omitted.] Without the inherent power to impose remedies and otherwise enforce our holdings, our power to review would be virtually meaningless. See Kjellander v. Kjellander, 90 Kan. 112, 114, 132 P. 1170 (1913) ('The appellate jurisdiction conferred carries with it, by implication, the power to protect that jurisdiction and to make the decisions of the court thereunder effective.')." Gannon II, 303 Kan. at 737-38.
Once the legislature appropriates the remainder of the funds outlined in SBS 16, the Gannon case should come to a close.
The second big case is Hilbrun v. Enerpipe Ltd. This case was widely discussed within the personal injury arena. This case deals with the constitutionality of the State’s cap on noneconomic damages in personal injury actions. In this case, the plaintiff, Diana Hilburn, was awarded a judgment for an auto accident when her truck was rear-ended by a semi owned by Enerpipe Ltd. The jury awarded Hilburn $301,509.14. The judge reduced the award to coincide with the noneconomic cap of $250,000. Under KSA 60-19a02, the cap will increase to $350,000 by 2022. Hilburn appealed on the ground that KSA 60-19a02 is unconstitutional because it violates her right to a jury trial. A plurality of the Kansas Supreme Court agreed with Hilburn and struck down the cap. The final tally was 3-1-2, with Justice Nuss not participating.
This ruling will have far-reaching implications and sets up a legislative fight in 2020. Several powerful special interest groups will attempt to reinstitute the caps with a statutory proposal. Others may attempt to alter the constitutional by proposing a cap be added to the founding document. Either way, this will draw significant attention and money to the 2020 session.
Besides the noneconomic cap battle, we can expect merit selection to be up for debate. We will also see Medicaid expansion grab headlines. The 2019 legislative session may have just ended, but battle lines are already being drawn for 2020.
The Senate then approved a motion to remove SCR 1610 from the judiciary committee and refer it to the whole Senate. SCR 1610 is the proposed constitutional amendment that would replace the merit selection process for Supreme Court justices with the nominate/appoint model used for the Kansas Court of Appeals. SCR 1610 was approved 28-10. See; http://www.kslegislature.org/li/b2019_20/measures/vote_view/je_20190529124439_160305/
Sen. Masterson (R-Andover) made the initial motion, but declined to have a debate on the merits, at this time. His wants to have an interim committee review the process. No date has been set. It is likely that the issue will be sent back to Senate Judiciary in 2020 for hearings and debate.
At 2:00 pm this afternoon—Tuesday, May 28th—the Kansas Senate Judiciary Committee will convene to discuss the nomination of Sarah E. Warner to the Kansas Court of Appeals. This position was vacated when Judge Patrick McAnany retired earlier this year.
This judicial confirmation hearing will be the first for Gov. Laura Kelly, although this is her second nominee for this position. As has been widely reported, Gov. Kelly’s initial nominee, Judge Jeffry Jack, failed to gain the needed support for the Kansas Senate. This after a quick ruling from the Kansas Supreme Court that the Jack nomination could not be withdrawn.
The Warner nomination will be voted on by the full Senate on Sine Die, May 29th. The Senate goes into session for Sine Die at 10:00 am.
The Senate may also attempt to vote on a constitutional amendment to alter the way judges are selected for the Kansas Supreme Court. Sen. Ty Masterson’s (R-Andover) motion to bring SCR 1620 to the Senate floor will take place tomorrow. This concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. Some senators are anxious to change the merit selection method in response to the Jack nomination issues. Sen. Hensley (D-Topeka) would like to simply correct KSA 20-3020 to include a withdrawal provision. How the Senate proceeds remains to be seen.
Normally, Sine Die is a formality and not much real business is undertaken. However, this year has been anything but “normal,” and a lot of issues remain up in the air at this moment. This could be a busy end to the session, or it could simply peter out.
In less than 40 minutes, the Kansas Senate voted down the confirmation of Judge Jeffry Jack to the Kansas Court of Appeals. This was a foregone conclusion which was reflected by the unanimous vote. The negative vote was unanimous, 0-38. The debate focused largely on the process for selecting judges in Kansas. Sen. Rucker (R-Topeka) alluded to a change in that process to bring greater transparency to picking judges. Sen. Ty Masterson (R-Andover) previously made a motion to bring SCR 1620 to the Senate floor for a vote. The concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. That vote is scheduled for Sine Die.
Sen. Hensley (D-Topeka) proposed amending KSA 20-3020 to include a withdrawal provision as was previously incorporated. He said the statute is unclear and should be corrected.
Sen. Wilborn (R-McPherson) prepared a letter to the Commission on Judicial Conduct setting out grievances against Judge Jack. The letter was available for any senator to sign and sponsor.
Immediately after the final vote, Gov. Laura Kelly nominated Sarah E. Warner to fill the Court of Appeals position. Sen. Wilborn set a judiciary committee meeting for May 28th, time and location to be announced later. A vote on the confirmation will take place on May 29th when senators return for Sine Die.
This decision comes after an expedited review of the nomination process to fill the Court of Appeal position vacated when Judge McAnany retired. The Court held that KSA 20-3020 does not allow the governor to withdraw a nominee once that nomination is made. The statute previously dealt with the withdrawal of a nominee, but that provision was removed when the statute was amended in 2013. The State argued that a general withdrawal provision found in KSA 75-4315b(c) was sufficient for the Jack withdrawal. However, the Court found that it could not rely upon this statute because it was not specific enough to the court of appeals confirmation statute to be binding. Furthermore, KSA 20-3020 provides only one way that an appointment can fail, and that is through a failed senate confirmation vote. The Court interpretation of withdrawal is analogous to nominees for elected office who die prior to an election. In those situations, the names had to remain on the ballot for that election.
The ruling does two things. First, it requires the Kansas Senate to vote on the Jack nomination because his withdrawal was improper. The Kansas Senate had 60 days to vote on the Jack nomination, and if my math is correct, that would mean they need to vote today, May 14th, 2019. If the senate fails to vote within the 60 days, the nomination becomes effective. The Kansas Senate anticipated this possibility and called a special meeting of the Senate to deal with it. The Jack nomination is anticipated to fail 40-0.
This put pressure of leadership to break the expansion coalition by reworking the budget and removing key pieces which some of those expansion supporters wanted. That tactic failed with more that 80 no votes on that budget. However, after sitting around for most of Saturday, May 4th, the coalition finally broke and the floods gates opened. House Sub for SB 25 (state budget) passed 79-45. Many of the moderates in the expansion coalition flipped once it was obvious the budget would pass. See; http://www.kslegislature.org/li/b2019_20/measures/sb25/
With the budget out of the way, both chambers set their sights on a tax cut bill. Gov. Kelly vetoed an earlier version of the tax cut which the legislature could not override. The legislature used the same bill number for the latest tax cut bill. SB 22 would run about $240 million over three years. It would decouple the state from the feds on standard deductions starting in 2019, exempt foreign income starting in 2017, and ever so slightly reduce food sales tax burden. See; http://www.kslegislature.org/li/b2019_20/measures/sb22/
There is a good chance Gov. Kelly vetoes this bill as well. The message would be to look at a comprehensive tax policy change in 2020.
Should Gov. Kelly veto SB 22, the legislature may attempt an override on Sine Die. The override vote may not be the only vote taken by the Kansas Senate on May 29th. Sen. Ty Masterson (R-Andover) made a motion to pull SCR 1610 from Senate Judiciary. This will allow a vote to alter the merit selection process for the Kansas Supreme Court. See; http://www.kslegislature.org/li/b2019_20/measures/scr1610/
To appear on the ballot SCR 1610 would need 27 votes in the Senate and 84 votes in the House—a tall order for most legislative days—very difficult on Sine Die.
Finally, the Kansas Supreme Court will hear two other huge issues this Thursday, May 9th: the K12 lawsuit and the Court of Appeals hearing on selection of judges. The issues surrounding school finance are well document and many believe the new funding will end the lawsuit. The hearing on the Court of Appeals issue is also straightforward. It is a question of law. Who gets to pick? Gov. Kelly believes the pick remains with her (Kelly nominated KBA President Sarah E. Warner last week) while Senate President Susan Wagle believes the pick is now with Chief Justice Lawton Nuss. Chief Justice Nuss has recused himself from the proceeding and has no opinion on the matter.
On Wednesday, May 1, 2019 the Kansas Legislature returns for the wrap-up session, also known as Veto Session. Traditionally, the veto session is used to override any vetoes the governor may have signed after First Adjournment. These days, though, the Veto session is the time during which the state budget is finalized.
This year, the Kansas Legislature has only one thing that it MUST accomplish: passing a budget. However, several ancillary items will also be considered during this time period. First, there will likely be an attempt to work out a tax bill that reduces income taxes. Earlier in the session, the legislature passed SB 22, a large tax cut vetoed by Gov. Kelly. So far, there have been no attempts to override the Governor’s veto, but that could change.
There also could be a push to have the Kansas Senate debate and vote on Medicaid expansion. The House has already approved this measure, but Senate leadership is blocking the bill. Senate President Susan Wagle (R-Wichita) has offered an interim study on expansion which would kill the idea for 2019. Gov. Kelly has put on a full court press to get the proposal to the floor this session, but time is not on her side. Prior to First Adjournment, Sen. Hensley (D-Topeka) made a motion to pull HB 2066 out of committee. That would give proponents of expansion an opportunity to debate the bill. To pull the bill out of committee, they need 24 votes. However, to schedule floor debate, they need 27 votes—which is much more difficult.
Prior to the ruling, conservative Republicans had introduced legislation that would have banned abortion in Kansas. That constitutional amendment (HCR 5004) was co-sponsored by 21 Kansas Representatives. See; https://www.kansas.com/news/politics-government/article225209525.html The Hodes & Nauser v. Schmidt case will only intensify the push for a vote on the issue. The Veto Session will provide ample opportunity for that. A successful constitutional amendment requires two-thirds of both chambers. That means 84 representatives and 27 senators need to approve the proposal. The House party split is 84-41; the Senate party split is 28-11-1
With all this work pending and two large cases in front of the Kansas Supreme Court, it is unlikely that the veto session will be brief. The 90th session day is set for May 17th, but there is a chance legislators will blow past that date if things get interesting.
Finally, the Kansas Legislative Research Department has released two of its three legislative summaries. These break down all the bills signed into law. These summaries also indicate when these new laws will go into effect.