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.
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 This after a quick ruling from the Kansas Supreme Court that the Jack nomination could not be withdrawn.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.
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.
The Kansas Legislature is off for the majority of April, but there are still things to report. First, Gov. Kelly continues to sign bills into law. Just last week, she signed 16 bills on a variety of issues. These new laws will affect DCF, utility rate studies, state banking code, local government elections, and the number of school safety drills performed each year. This week, the Governor will likely continue to sign bills into law, including CCR for HB 2039, dealing with tribal judgments and the Kansas LLC Act.
Senate President Susan Wagle also made the news last week when she requested that KSAG Derek Schmidt file a lawsuit over the Kansas Court of Appeal nomination—or in her opinion—the lack thereof. In the nine-page letter, Sen. Wagle requested KSAG Schmidt seek a court ruling on whether Gov. Kelly can nominate another person to the court of appeals, or if the statute requires that Chief Justice Nuss make the appointment. Some believe that Gov. Kelly forfeited her opportunity to make the nomination when she withdrew Judge Jeffry Jack from consideration. Others believe that the Jack nomination counts, and she should have another chance to select. This is an ongoing issue which appears headed to the courts.
It should also be noted that Sen. Ty Masterson (R- Andover) introduced a constitutional amendment to replace the Supreme Court Nominating Commission with the same process used for the Kansas Court of Appeals.
On a related note, the election for the 2nd Congressional District member to the Kansas Supreme Court Nominating Commission is underway. Only lawyers who reside within the 2nd Congressional District and who have properly registered to vote with the Supreme Court Clerk are eligible to vote in this election. See;KSA 20-170. The KBA has introduced legislation to remove that barrier for lawyers who want to vote in those elections; that bill has stalled in the Kansas House. See;HB 2020. As such, the process continues under current law.
There are seven lawyers are on the ballot for this election. They include:
Sara S. Beezley, Pittsburg
Terrance J. Campbell, Lawrence
Heather R. Cessna, Lawrence
Shaye L. Downing, Lawrence
J. David Farris, Atchison
Jason P. Hoffman, Topeka
Michael F. Kagay, Topeka
Lawyers who are qualified to vote in this election should have already received a ballot in the mail.
Please follow the instructions and return the ballot and the signed certificate to the Kansas Supreme Court on or before May 15, 2019.
The Judiciary Conference Committee spent the majority of the last week bundling bills in order to pass several bills at once. These bundled bills are found in conference committee reports. The difficulty this session was the lack of bills in conference, or bills passed by both chambers but in different forms. This year, there were only six bills in conference, but more than 30 bills up for debate.
The Judiciary Conference Committee prioritized these six bills in conference, and created packages dealing with crime and punishment, contracts, courts, consumer protection, business entities and public agencies.
Crimes, Punishment and Criminal Procedure – CCR for SB 18
The bill in conference was SB 18, which includes amendments to the crime of counterfeiting currency (SB 134), access to pre-sentence reports (SB 19), out-of-state convictions (HB 2048); drug abuse treatment programs (HB 2396); penalties for involuntary manslaughter and child abuse (SB 108); mitigating factors when victim is an aggressor (HB 2283); and domestic violence notifications policies for LEO (HB 2279). The CCR for SB 18 was adopted by the House 123-0. The Senate plans to discuss this CCR during veto session.
Consumer Protection – CCR SB 78
The bill in conference was SB 78 which deals with assignment of certain rights and benefits under an insurance policy for real property. It adds protections relating to housing for victims of domestic abuse (SB 150). CCR for SB 278 passed both chambers (100-23/36-1) and now heads to the governor.
Courts – SB 20
The base bill in this CCR is SB 20 which extends the judicial branch docket fee surcharge. Under current law, the extension expires or sunsets after two years. The Senate removed this provision while the House maintained it. In conference, both sides agreed to place a six-year sunset provision in law. The committee also added language recognizing tribal court judgments in district court (HB 2039). The KS House passed this CCR 120-3. The Senate plans to take it up during Veto Session.
Public Agencies – CCR HB 2290
The bill in conference was HB 2290 which creates the victim’s compensation division within the KSAG. The committee added language concerning background checks for individuals who have unsupervised access to children and the elderly (HB 2360); exceptions to the KS Open Records Act (HB 2137); creation of the criminal justice reform commission (HB 2108); deferring the implementation of scrap metal database until July 1, 2021 (SB 219) and creating the Kansas closed-case task force to investigate hits on CODIS (SB 102). This CCR has not yet been drafted.
The Judiciary Conference Committee was unable to include some bills in conference committee reports this session. Those bills held over include:
HB 2336 - Clarifies when jail credit is awarded to offenders under supervision of the secretary of corrections. (124-0) (From House Corrections) (Heard in Senate Judiciary, No Action Taken)
HB 2244 - Creates an affirmative defense to the crime of possession of a controlled substance for possession of certain medical treatments. (House Vote 89-35) (From House Judiciary) (Not Heard in Senate)
HB 2034 - Enacts the supported decision-making agreements act to provide a statutory framework for adults who want decision-making assistance.(101-15) (House Federal and State Affairs)
HB 2281 - Provides that a court order modifying a criminal sentence only modifies the portion of the sentence referenced by the court and not remaining portions of the original sentence. (102-22) (House Judiciary)
The Kansas Legislature will reach First Adjournment today, April 5th. This deadline effectively kills any bill not already passed by at least one chamber. Of course, there are exceptions, and those are very similar to those used after Turnaround (House Appropriations, Senate Ways & Means, Tax etc.). The Legislature will return on May 1st for Veto Session.
• Judicial Branch Budget
The Kansas Judicial Branch has asked for budget enhancements totaling $20.1 Million. These enhancements include judicial raises ($7.8 million); nonjudicial raises ($10.3 million), and 7 new judges/staff with 20 unfunded positions ($2.0 million)
House Appropriations would like to phase in the increases over several years. The phase-in would begin in FY 2020 and last three years for staff and five years for judges.
Senate Ways & Means will discuss judicial pay during Veto Session.
The Judicial Branch Budget can be found on page 5 of the bill explainer for House Sub for SB 25. This bill is in conference and being negotiated.
The Judicial Branch also gained approval for its docket fee extension bill. That bill, SB 20, has passed both chambers (35-5 in the Senate/118-6 in the House), but the KS House amended the bill to include HB 2039, recognizing Tribal Court Judgments.
SB 20 accounts for $9 million dollars of the judicial branch budget. It has been sent to conference committee to debate the differences. The Senate appointed Sen. Wilborn, Sen. Miller and Sen. Rucker. The House should appoint, Rep. Patton, Rep. Carmichael and Rep. Ralph.
The Judicial Branch was also able to get approval for HB 2211. This bill allows judges to waive driver’s license reinstatement fees should the defendant qualify due to manifest hardship. The hope is this program will provide an incentive those with traffic fines to apply for the waiver and pay a percentage of the fine minus penalties. The Judicial Branch believes this will end with a net positive impact on the judicial branch budget.
For most of the session, merit selection was not an issue. However, with the nomination and subsequent withdrawal of Judge Jeffry Jack for the Kansas Court of Appeals, things have changed. The first proposal is similar to previous judicial selection constitutional amendments. This bill would eliminate the merit selection process and move towards a “governor nominate/senate confirm model.” This proposal was introduced by Sen. Ty Masterson (R-Andover).
Neither of these proposals have been scheduled for hearings
Sen. Dennis Pyle (R-Hiawatha) introduced a resolution calling for the resignation of Judge Jack. That resolution has no legal effect but does keep the issue alive. The Senate did not take up the issue.
The Kansas Legislature has less than a week to complete its work. A state budget and a school finance plan have yet to be negotiated. The House passed some school finance policy proposals but failed to pass a funding plan. The Senate passed a funding plan. How this shakes out will be interesting to see. Both chambers must also finalize a budget this week. The budget conference committee has already met but just to deal with some less controversial issues.
This past week was not the best for the new administration’s nominees. As we are all aware, Gov. Kelly’s nomination for the Kansas Court of Appeals position was named, rebuked and withdrawn within 48 hours. The main issue was social media content that Senators found to be offensive and partisan. Gov. Kelly was not aware of these remarks prior to her appointment of Judge Jeffry Jack, but once they came to light, she withdrew his nomination.
The amendment has not been drafted yet and no hearings are scheduled. To pass, the constitutional amendment would need to obtain 84 votes in the House and 27 votes in the Senate. Currently, the Kansas House has an 84/41 republican/democrat split.
In addition, Sen. Dennis Pyle (R-Hiawatha) introduced a resolution calling for the immediate resignation of Judge Jack. While this resolution, SR 1731, has no legal effect, it applies pressure on the judge. The Kansas Senate cannot force Judge Jack to resign, but they are taking every advantage of this issue. SR 1731 has 14 co-sponsors, including the Senate President.
The Kansas House has remained quiet on the Jack issue, but that has not stopped them from introducing legislation that would affect the Kansas Supreme Court. On Tuesday, Rep. John Barker (R-Abilene) introduced a bill that would mandate the Kansas Supreme Court issue opinions no later than one year after hearing oral arguments. This bill may have separation of powers issues, similar to the Solomon case a few years back, which the courts found unconstitutional.
Gov. Kelly’s nomination for the Department of Commerce is also on difficult footing after the Senate Commerce Committee voted 6-5 to reject his appointment.
Last week the KBA had two hearings on bills it sponsored. The Senate took up HB 2105, LLC Update and HB 2039, recognizing tribal court judgements. Both bills were well received and passed out of committee. The House Judiciary Committee amended SB 20 dealing with the docket fee surcharge extension to include a two-year sunset provision. This provision was removed by the Senate but reinserted at the request of the KBA. All three issues head to the floor for debate this week.
The Kansas Senate passed out SB 157, presumptive shared parenting time for temporary orders. The KBA opposed this bill. This bill has large bi-partisan support as evidenced by Sen. David Haley (D-Kansas City) making the motion to pass the bill out of committee. The bill was amended to add definitions for physical custody and parenting time provisions. The bill goes to the full Senate for debate.
This week the Kansas Legislature will spend most of its time on the floor passing out bills before the March 27th Second House of Origins deadline, after which they will be working in conference committee until First Adjournment on April 5th. Thus far, the legislature has sent only two bills to the governor’s desk, one of which she may veto. However, both chambers have debated more than 50 bills this week already. I expect a flood of bills to head to the governor’s desk.
The KBA held its KBA Day at the Capitol on Tuesday, March 12th. KBA volunteers meet with 54 legislators. Our goal was to create support for judicial branch pay increases for judges and staff. The KBA helped set up meeting with legislators and provided materials for these meetings. Most of our volunteers met with freshman legislators. We focused on this group because we have not formally discussed judicial pay raises with them.
Our volunteers reported strong support for pay increase for staff and district judges but very limited support for raises for the Supreme Court. A tension still exists between some legislators and the Supreme Court. It was said more than once that raises for staff should be the priority.
The KBA Day at the Capitol was well timed since the House Appropriations and Senate Ways & Means Committee were discussing the Judicial Branch budget this week. House Appropriations keep the language in for raises in their version of the budget. The House version would see a 3-year implementation plan for staff with a 5-year plan for judges. Senate Ways & Means decided to pass the judicial branch budget expect for the raise portion. They will discuss the pay plan at omnibus.
I would like to thank our volunteers for sparing a day to advocate for the judicial branch. Pictures courtesy of Ryan Purcell, KBA staff.
Gov. Kelly nominates Hon. Jeffry Jack
The Kansas Bar Association congratulates Hon. Jeffry Jack on his nomination to the Kansas Court of Appeals. Judge Jack will be well-served by his 31 years of experience as a member of the Kansas Bar and his 13 years as a Labette County district court judge.
The KBA also commends Governor Kelly for increasing transparency, implementing a merit-selection process to choose the finalists for this important position.
KBA President Sarah Warner observed, “Kansans are well-served by a process that encourages people of Judge Jack’s intellect and background to serve on the state’s appellate courts. We heartily congratulate Judge Jack and urge the Kansas Senate to swiftly confirm his nomination so he may take his place on the Court of Appeals.”
The KS Legislature returned from the short Turnaround break on Wednesday, March 6th. The short week was stacked with big bills and Capitol visits. The KS House decided to debate SB 22, tax cut bill, on Thursday, March 7th. This was a bit of a surprise as the House jumped into the controversial issue after a very sluggish first half of the session. SB 22 included an income tax decrease which allows the itemization of deductions. It also includes an internet sales tax portion and a food sales tax cut. Some are concerned that the fiscal note is foggy, and the total amount of the tax cut is unknown. The House passes the bill 76-43. Many believe that Gov. Kelly will veto this bill. See; https://www.kcur.org/post/kansas-house-presses-tax-relief-edges-closer-showdown-governor#stream/0; See also; https://realprosperityks.com/tax-migration-is-not-real-a-twitter-thread/
The KBA testified on two hearings this week. The KBA opposed SB 157, presumptive shared parenting time on temporary orders and supported SB 20, extending the docket fee surcharge fee.
SB 157 had 23 proponents and 7 opponents. The proponents included mostly father’s who had difficulties during their child custody hearings and were given less than 50% custody of their children. The proponents were organized by the National Parents Organization and the Kansas Family Preservation Coalition. Opponents included Hon. Keven O’Grady, Hon. Merlin Wheeler, Dr. Bud Dale, Sara Rust-Martin from the Coalition against Sexual and Domestic Violence, Prof. Linda Elrod, and Charlie Harris. The KBA was represented by Ron Nelson.
The KBA then testified on SB 20. Originally this bill extended the docket fee surcharge for two more years. However, the Senate removed the sunset provision making the surcharge fee permanent. While the KBA supports the surcharge, it has always been our position that it should be temporary. As such we asked the House Judiciary Committee to re-insert the two-year sunset provision.
Finally, the KBA will hold its KBA Day at the Capitol next Tuesday, March 12th. This year our volunteers will meet with 34 freshman legislators to discuss the need for judicial branch pay increases. Our volunteers include Appellate judges, District Court judges, Magistrate judges, clerks and several KBA lawyer members. We will begin our day at the KBA offices with a welcome from our president Sarah Warner and then a short presentation from Chief Justice Lawton Nuss. Our first meeting begins promptly at 10:00 and continue thru 2:30pm. We will have lunch at the Capitol in RM 142-S at noon.
These legislator meetings come at an opportune time since the judicial branch budget will be discussed in committee this week. We look forward to productive meetings with our legislators.
The Kansas Legislature is halfway through the 2019 session. The Turnaround Deadline was supposed to be February 28th. However, the Capitol went quiet early, since both chambers completed their listed work the previous day. Combined, both chambers passed well over 50 bills in three days. Most were uncontroversial. One of the most controversial bills, HB 2167 dealt with the transfer of deer hunting permits passed 63-60.
Both chambers have agreed to repay KPERs a total of $115 million. That bill, SB 9, has been sent to Gov. Kelly for consideration.
Two KBA bills did not fair as well. HB 2020, attorney registration requirements, did not make it out of committee. Kansans for Life opposed this bill. We were also unable to get HB 2072, prohibiting mandatory arbitration, debated by the full House before the deadline. There was some concern that HB 2072 would be germane to a teacher due process amendment.
SB 157 is set for hearing on Thursday, March 7th in Senate Judiciary. It should be noted that SB 157 has 17 co-sponsors that include both Democrats and Republicans. The chair of Senate Judiciary is also a co-sponsor. Should be interesting.
Finally, the KBA Day @ the Capitol is scheduled for March 12th. KBA volunteers will meet with the 34 Freshman legislators to discuss the Judicial Branch budget. As it currently stands, Kansas District Court judges are 51st in the nation for salary, Court of Appeal judges are 38th out 0f 40. Judicial staff don’t fare much better. This is the second year the KBA has focused on judicial branch salary increases.
In one week, the Kansas Legislature will hit its midway point where bills not passed out of their House of Origin can no longer continue through the process. This day, commonly referred to as Turnaround, will see the bulk of bills introduced in 2019 fall by the wayside. There are still procedural maneuvers that optimistic lawmakers can use to survive this deadline. They can introduce their bill into an exempt committee, (House Appropriations, Senate Ways & Means or either chambers’ Federal & State Committees), or they can have their bill “blessed” by leadership. To be “blessed”, the bill must be referred to one of these exempt committees.
The KBA had a productive Week 6. The LLC bill, HB 2105, was passed by the Kansas House 117-0. HB 2105 has already been referred to the Senate Judiciary Committee. Rep. Fred Patton carried the bill on the floor with supporting comments from Rep. John Carmichael. We appreciate their efforts!
HB 2072, dealing with mandatory arbitration provisions in insurance contracts was passed out of House Judiciary Committee on a voice vote. Hb 2072 still needs to pass the full House or it will become a casualty of the deadline.
The KBA also testified in support of the Kansas Judicial Branch Budget. This testimony was submitted in the House General Government Budget Committee and the Senate Ways & Means Subcommittee.
It should also be noted that several bills of interest to the KBA have not yet been given hearing. Those include, HB 2331, mandatory reporting of sexual abuse by clergy. The Chair has asked the sponsor of the bill, Rep. Mark Schreiber (R-Emporia), to work with the Catholic Charities on language that both could support. HB 2196, creating the presumption in favor of shared parenting time for temporary orders. The House Judiciary Committee did not take up this bill. It still could be blessed, but no request has been made yet. HB 2192, which establishes that court of appeals judges would be nominated by the Supreme Court nominating commission. Hearings were cancelled for HB 2115/SB 56, which would require use of software that would verify hours billed by contractors under certain state contracts. However, the sponsors of this bill might try to insert language into an appropriations bill. This was a tactic used in the State of Virginia to create a pilot program using this software.
Finally, we have scheduled our KBA Day @ the Capitol for March 12th. This is a great opportunity for members of the KBA to join me at the Capitol in Topeka for a day, meet certain key legislators in their offices, observe committee and possibly floor action in the House and/or Senate, and get a true front row experience on the legislative process. If you would like to join us this year, please contact me for more details. I can be reached via email at email@example.com.