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.
The week after the Turnaround Deadline is normally quiet as legislators settle in for the final four weeks of the session. This year it was noticeably slow going. Only a few legislative committees had meetings, and little work was done on the floor of either chamber.
Big News— The KBA will hold its Day at the Capitol on March 19th. The agenda will include a 9:30 a.m. welcome from the KBA followed by comments from Chief Justice Nuss. Volunteers will head over to the Capitol at 10 a.m. to begin meeting with legislators. We will have lunch in the Capitol from noon-1:00 p.m., followed by an afternoon session of legislator meetings. Volunteers can plan to be back at the KBA by 3:00 p.m. for a debriefing and reception.
If you are interested in volunteering to meet with your legislator to discuss wage increases for the Judicial Branch, please contact me at firstname.lastname@example.org
The Kansas Legislature reached its halfway point of the 2018 session on February 23rd with the passage of the House of Origin deadline, marking the date in which all non-exempt legislation must advance out of its house of introduction, or is considered dead for the remainder of the session. However, several exempt committees continue to work through legislative initials. These exempt committees include House Appropriations, Senate Ways and Means, House and Senate Federal and State Affairs and House Taxation. The House and Senate Judiciary Committees are not exempt committees and all legislation must be passed out prior to the deadline to be considered.
Thus far the session and most of the state has been focused on the K12 funding. State revenue has begun to climb out of the previous year’s poor returns but even these better than expected numbers are not enough to cover the cost of school. Many in the Capitol strongly oppose raising taxes to pay for K12 and they are looking at some sort of cut. There has been very little direction given from the new governor, so legislators are taking the lead. What proposes spring forth are yet to be determined.
The judicial branch was able to discuss their enhancement request with both the House Appropriations Committee and the Senate Ways and Means Subcommittee. The request includes; add $19.6 million to the judicial budget for judicial raises ($7.5 million); nonjudicial raises ($10.3 million), 7 new judges/staff ($772K); 20 unfunded positions ($875K) and judicial suite renovations ($200K). The issue is a controversial one that will require addition attention going forward.
Raises for judicial staff are also proposed in standalone bills. Those bills include:
The judicial branch was able to get is docket fee extension thru the Senate Judiciary Committee earlier this month. The measure passed the KS Senate 39-0. It now goes to the House with a likely referral to House Judiciary.
HB 2560 enacts the Kansas Cybersecurity Act which will impact judicial Branch employees. This measure was stricken from the calendar. It was not referred to an exempt committee before the deadline, so it is likely done for the year.
HB 2524 would make it easier to separate cell phone account in domestic abuse situations. This bill was passed 117-0 in the KS House. Ron Nelson worked closely with the sponsor of the bill on several amendments to this bill.
The KBA Family Law Section recommends the KBA oppose HB 2520 because it places limits on retroactive child support orders, limits the courts decision-making process and is not in the best interest of the child. This bill was not passed out of committee nor referred to an exempt committee.
This bill allows any child placement agency to refuse to make a placement that violates the agencies sincerely held religious beliefs. The KBA Family Law Section strongly opposes these two identical bills. No hearings have been set but these bills are exempt from the Turnaround Deadline having been introduced into exempt committees.
This bill was rejected by the Kansas Judicial Council Family Law Advisory Committee in 2016. The KBA Family Law Section strongly opposes this bill because it would enact the so called “protective parent defense” which would discount the “friendly parent” factor included in the child custody factors. The friendly parent factor has long been in the cross-hairs of some asserting that it encourages abusive and manipulative parents to the detriment of a parent (the abused parent) who is protecting the child by various actions that otherwise would be considered as “alienating.”
This bill would allow cities, as well as certain organizations as authorized by current law, to take temporary possession of abandoned property for purposes of rehabilitating the property. The bill would also make many definitional and other changes to laws dealing with rehabilitation of abandoned property. The Title Standard Committee reviewed but declined to make a formal recommendation. The Kansas House passed this bill 90-32 last week.
This bill is in response to Adamson vs. Drill Baby Drill LLC. The bill would require additional notice be given to potential homeowners when a mineral lease is separate from the surface rights. The bill was not debated by the House committee of the Whole.
This bill would enact the Uniform Partition of Heirs Property Act. The bill would assist in the partition of property, which is owned as tenants in common and some portion was inherited, or the co-tenants are relatives. The KBA Title Standard Committee recommends the KBA oppose this bill. This bill did not pass out of the House.
SB 266 was introduced by the Ks Attorney General’s office Crime Victim’s Compensation Board. The bill broadly defines what collateral source means when dealing with the crime victim’s compensation board. As testified the bill would amend the definition of “collateral source” to include “any other source” received by or readily available to the victim or claimant before the Board would discuss compensation for the victim. This bill was passed 38-0 and referred to the House Judiciary Committee.
This bill was sponsored by the Kansas judicial Council to codify a civil law practice into law. Make judicial district are already recognizing these types of judgments via court rule. This bill simply puts into law what has already become practice. No action was taken on this bill.
This bill was introduced by the Kansas Chamber of Commerce. The bill was supported by GM and several defense lawyers, including KADC. The Kansas Trial Lawyers Association opposed. This bill passed 25-15.
This bill was a carryover from 2017 and it was introduced by the Kansas Chamber of Commerce. The bill was aimed at pending litigation and attempted to make certain aspects of appeal bond requirements retroactive. The bill also lowered the bond amount if a defendant could show it was a small business as defined by the new bill. The retroactive provisions were removed from the bill in committee. This bill passed the Senate on Wednesday, February 14th on a 32-7 vote. Referred to House judiciary.
Week 5 saw the second State of the State Address—the first for Gov. Colyer. The address focused on three main areas: transparency, jobs and education. The Governor has already signed an executive order making the first 100 pages of a KORA request free of charge. He will also require annual sexual harassment training for state employees.
Colyer also want to focus on keeping schools open, accountability for new money used and stopping the endless lawsuits. He hinted at a constitutional amendment, but his speech did not provide any other details. Colyer also suggested a constitutional amendment dealing with pro-life laws but again no specifics were given. For more information please see; https://go.ksbar.org/2sqGaFI; See also; https://go.ksbar.org/2EXmsUy
For our purposes, Week 5 was focused on the Judicial Budget—specifically, raises for staff and judges. Last Thursday, the House Appropriations Committee debated the Judicial Branch request to add $19.6 million to the judicial budget for judicial raises ($7.5 million); nonjudicial raises ($10.3 million), seven new judges/staff ($772K); 20 unfunded positions ($875K) and judicial suite renovations ($200K).
Several members of the appropriations committee challenged the facts the court used to arrive at these numbers. The concerns were wide-ranging and included inaccurate figures to a poor wage survey to using non-neighbor states for comparison (IOWA).
Others were concerned that the total increase would be 18% above the current SGF for the Judicial Branch. The strongest opponents to the recommendations were Rep. Hoffman (R-Coldwater); Rep. Williams (R-Augusta) and Rep. Claeys (R-Salina).
Several members felt that an increase of over 21% for judges was out of line, and they would rather focus on nonjudicial staff. Rep. Claeys felt it more appropriate to fund correction officer raises due to the safety issues they are facing.
Overall, the recommendation was not well received, and it appears that the committee has very little appetite for any raise for judges.
In the end, Rep. Hoffman made a motion to strike the entire judicial budget enhancements from the recommendation. They did discuss bringing the issue up again. Chairman Waymaster would like more information from the courts concerning the amount of the raises and how they arrived at those numbers.
Next week the Senate Ways & Means Subcommittee will hear the judicial branch enhancement requests. The KBA will again be submitting testimony in support. You can view the judicial branch budget enhancement request on the KBA website.
There are two stand-alone bills dealing with judicial salaries still out there, one in each chamber:
HB 2645 would change the residence for the primary district magistrate judge in the 4th district from Osage to Coffey county. The 4th District has two magistrates assigned with one being housed in Osage County and the other rotating between Coffey, Anderson and Franklin. No hearing date set.
SB 411 is an issue previously introduced by Judge Phil Journey regarding the Traffic Fee Amnesty Program. The only difference is that this bill allows the Department of Revenue, Division of Motor Vehicles to run the program instead of the courts. No hearing is scheduled at this time.
While this week’s focus was on the judicial branch’s proposal, other bills were introduced that need careful consideration; they include:
The last day in January ended up being the last day of the Brownback Administration. Gov. Brownback officially resigned at 3:00 p.m. on Wednesday, January 31st. Lt. Gov. Jeff Colyer then took the oath of office, administered by Chief Justice Nuss. Secretary of State Kris Kobach—who normally does the swearing-in—did not attend. Gov. Colyer wants to set a different tone going forward, what that means remains to be seen. Gov. Colyer is the 47th Governor of the State of Kansas.
Interesting fact:Only two Kansas Governors have served two full terms: John Carlin and Bill Graves.
Last week the KBA testified on two bills:
SB 257 | Creating a presumption of child's equal time with parents during court determinations of legal custody, residency or parenting time
The KBA Family Law Section opposed SB 257. Ron Nelson appeared for the KBA. Other opponents include the KDJA and a concerned lawyer from Wichita. Eighteen supporters of the bill either testified or provided written comments. SB 257 was sponsored by Sen. Steve Fitzgerald who sits on the Senate Judiciary Committee. He obviously supports the measure; however, Sen. David Haley announced at the end of proponent testimony that “there was no way he was not voting for the bill.” Haley’s support virtually guarantees the bill passes out of committee and probably the Senate. The KBA is working with the committee chair in the House on SB 257.
SB 309 | Providing for the disposition of judicial branch docket fees in FY 2020 and FY 2021 The KBA also testified on SB 309. Under current law, the first $3.1 million of any remaining docket fee revenue is credited to the Electronic Filing and Management Fund (EFMF) through FY 2019. Beginning in FY 2020, the amount will be reduced to $1.0 million. SB 309 would extend the $3.1 million credit through FY 2021. Beginning in FY 2022, and every fiscal year after, the bill would increase the $1.0 million credit to $1.5 million.
The court had requested an extension of this docket fee distribution on two previous occasions. Both times, the request was made to give the courts the revenue required to complete the E-Filing process. This time, the request has been made to make it possible for the court to complete the case management program.
SB 309 was recommended favorably by Senate Judiciary and is headed to the full Senate.
The KBA continues to monitor two family law bills that had hearings last week. They are:
Last week, the U.S. Senate voted 50-49 (VP Pence broke tie) to confirm Gov. Sam Brownback as the U.S. Ambassador at-Large for International Religious Freedom. Brownback will officially resign as governor on Wednesday, January 31st, handing over the executive branch to Lt. Gov. Jeff Coyler.
This has been in the works for several months now and allows for a certain level of stability in the Capitol. The big question is how the new governor will handle the biggest issue on the session: K12 funding. While serving as the Lt. Gov., Colyer hinted at possible solutions, but he failed to provide any specific details (See: http://bit.ly/2EaYzIE). Legislative leaders have taken a different approach by challenging Kansas Board of Education Deputy Commissioner Dale Dennis who is the pre-eminent figure on K12 funding. The allegations include misallocation of transportation funds totaling $405 million over several decades. See:http://bit.ly/2ngovKT; See also:http://bit.ly/2FjlxN9.
Senate President Wagle and Speaker Ryckman sent a letter to the Kansas State Board of Education outlining the audit’s findings and asking that Dennis be placed on administrative leave pending a forensic audit. The legislators also met with Kansas Attorney General Derek Schmidt to discuss other options.
The public reaction to this letter has been swift. All the major teaching associations and school groups issued a letter in support of Dennis. Many legislators have publicly supported Dennis and joined the “Team Dale” movement. For its part, the Kansas Board of Education met in executive session last week to discuss this issue.
The audit findings are curious, but some believe that scapegoating Dennis is a way to undermine the K12 funding formula currently in place. This could open the door for an argument that the Kansas Supreme Court made its ruling on erroneous facts. We will see how far this strategy goes.
Last week, Kansas also got a new U.S. Attorney for the District of Kansas when Steve McCallister was sworn in by Supreme Court Justice Clarence Thomas. McCallister was confirmed by the U.S. Senate last month.
The KBA will be testifying on two bills. They include:
SB 257 which the family law committee OPPOSES. There is an identical bill in the House, HB 2529. The Family Law Section also OPPOSES that bill, but HB 2529 has not been set for a hearing yet.
In the second week of the legislative session things appear to be settling down. This week was anchored by the State of the Judiciary Address given by Chief Justice Lawton Nuss. The crux of the 40-minute speech was the issue of salaries for judicial branch employees and judges. Chief Justice Nuss pointed out that Kansas ranks 50th in employee pay even after last session’s 2.5 percent increase. The Judicial Branch experiences employee turnover at five times the national average. Every staff position within the judicial branch has a starting wage below market value. Nuss pointed out that when Wal-Mart phases in their new starting wage of $11 per hour, it will be nearly the same as a starting wage for certain court positions. The court is losing employees to Wal-Mart, Target etc., due to salaries. You can read about the salary issue here: http://bit.ly/2FVoLaR
In the Senate Judiciary Committee, hearings were held on SB 199 dealing with appeal bonds. This bill creates a small business category for appeal bonds by defining a small business as having 50 or fewer employees and no more than $50 million in annual revenue. The bill also retroactively applies to any appeal that has not been resolved filed prior to the effective date of the bill. KTLA opposed the bill while the KS Association of Defense Counsel supported it. This bill was originally introduced by the Kansas Chamber.
The House Judiciary Committee also held hearings this week with SB 181 being heard on Thursday. SB 181 would authorize a district court judge to enter into amnesty programs for traffic fines. These fines are a dedicated revenue stream for the judicial branch, and the amnesty program would cost the court some money. The bill was supported by Judge Phil Journey and Sen. Oletha Faust-Goudeau. Both believe that this type of penalty to be a tax on the poor.
Two groups opposed the bill: Kansas District Judges Association and the Kansas Association of District Court Clerks & Administrators. Both groups stated this would create extra work for clerks which would require at least four full-time employees. For its part, OJA created an ad hoc committee to study municipal court fines and fees and draft a report with recommendations. This committee is chaired by Municipal Court Judge (City of Salina) Brenda Stoss. The committee did not make any recommendations.
Both judiciary committees have full schedules this week as a host of family law bills, criminal bills and administrative measures are discussed and/or set for hearing. Look for the House Judiciary Committee to discuss civil asset forfeiture late next week while the Senate Judiciary Committee spends Monday discussing Human Trafficking.
There is actual video footage of the exchange up on YouTube now. See; http://bit.ly/2CSpw6G. Rep. Alford resigned both of his committee chairmanships and issued a formal apology.
Second, Missouri Governor Eric Greiten admitted to an affair before he was elected. The report goes on to allege that Greiten attempted to use personal sensitive photos to blackmail his mistress. See: http://bit.ly/2CPoIeP; See also: http://bit.ly/2mkYn1g. There are Missouri legislators calling on Greiten to resign.
Third, Kansas Governor Sam Brownback gave the annual State of the State address on Tuesday evening. Many thought Lt. Gov. Jeff Coyler would be giving the speech since Brownback was in line for a U.S. Senate-confirmed Ambassadorship. The US Senate vote never came, so Gov. Brownback was obligated to give the speech. He focused on K12 spending and recommended adding $600 million over five years to school funding. He also stated he wanted to add 150 school counselors a year for 5 years as well.He stated that this could be done with no new taxes.
Republican leadership responded quickly to the $600 million proposal and the governor’s budget, and it was not kind. Sen. Ty Masterson (R-Andover) is quoted as saying “I’m not sure what the logic is behind this” proposal. Rep. J.R. Claeys went even further tweeting “The governor has waved the white flag of surrender from the dome, and tossed every ally he had left under the bus... Then put the bus in reverse... Then lit fire to the bus.” Senate President Susan Wagle also made comments criticizing the governor’s plans. See: https://twitter.com/APjdhanna.
This will be a hard sell for many conservatives. How they plan on approaching the governor’s recommendation and the court’s deadline remains to be seen, but this is not a good start.
Fourth, there is a growing concern about transparency in the Capitol regarding bill introductions. In the past, it was not uncommon for a bill to be introduced without a known sponsor (which means if you were not in the room when the bill was requested, you would never know who requested it.) On some occasions, conceptual bill would be introduced without a sponsor, making it hard to track the origin of any one proposal.
This year many committees are altering rules to allow more transparency into the bill introduction process. This is true for House Judiciary and House Federal and State Law Committees. This will be helpful going forward, but it is not without controversy. For instance, last Wednesday, two democrats objected to the introduction of a bill citing transparency concerns because they did not know what exactly was in the bill. This was the first time I ever witnessed an objection to merely introducing a proposal. The committee debated the objection and voted on the objection, ruling to allow the bill to be introduced. This is a highly unusual process for bill introductions. However, it happened again on Wednesday when a legislator objected to the introduction on a budget proposal from the Governor’s Office in a different committee. It will be interesting to see if this pattern holds, and we see more objections to bills being introduced.
Fifth—committee hearings start next week. We will see hearings on SB 181, dealing with fines and fees; SB 199, dealing with appeal bonds; and a few carryover bills from 2017. The KBA continues to track legislation of interest to its members and you can find it here: https://www.ksbar.org/bill_tracking
The Kansas Legislature returned Monday, January 8, 2018. Traditionally, the first week is rather uneventful. The primary goal of legislators and committees is to acquaint themselves with chamber rules, committee assignments and new staff members. However, this year, committees began meeting and hearing proposals almost immediately. For instance, the House is already considering K12 spending initiatives while the Senate grapples with other K12 issues.
There are also two pre-filed bills aimed at gun laws. One, HB 2442, introduced by Rep. Vic Miller (D-Topeka), would prohibit “bump stock” attachments for semiautomatic firearms such as the one used in the Las Vegas mass shooting this past summer. The other, HB 2243, introduced by Rep. Boog Highberger (D-Lawrence), would create a new crime of abandoning a firearm.
The Office of Judicial Administration also introduced a pre-filed bill, SB 261, which transfers the duty of property appraisals from a judicial administrator to the director of property valuation.
It is also important to remember that 2018 session is an outbound year which means that bills introduced during the 2017 session carry over and can still be granted hearings and passed through the normal legislative process.
The KBA will continue to monitor the following bills:
To stay informed on the 2018 Legislative Session, you can visit www.kslegislature.org
There you can find bills, meeting times/dates, committee rosters and ways to contact your legislator. You can also find a helpful session planner.
At the KBA website – www.ksbar.org – you can find the 2018 Bill Tracking Chart, legislative testimony and an interactive legislative map.
Look for weekly KBA Advocate every Tuesday. This blog will summarize the previous legislative week. Also, please follow us at @KansasBarLeg for live twitter reactions to the 2018 session.
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You're invited to the upcoming Kansas Bar Association CLE in Liberal and Dodge City. These programs consist of a FREE two-hour CLE which includes a legislative update and an hour of ETHICS, with lunch provided by the KBA.
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