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 Kansas Legislature reached First Adjournment last Thursday with the intent to return for the Veto Session on April 27th. Sine Die is set for May 21st. While these dates are set in stone, the reality of the current situation is anything but solidified. The session ended with a truncated state budget and the passage of an emergency resolution—neither of which were foreseen just 10 short weeks ago.
In a showing of bipartisanship, the Kansas Legislature was able to pass a barebones budget, complete a transportation bill and give the governor powers, albeit limited, to deal with the virus outbreak. This all happened in under seven days.
The State of Kansas took the lead on the COVID-19 precautionary front. The state was the first in the country to close public schools. Other states have followed suit since that time and large states, including California and New York, have instituted even more restrictive measures.
The governor has imposed several additional restrictions to help reduce the spread of the Covid-19 including:
Furlough non-essential state employees for two weeks starting Monday, March 23.
Prohibit mass gatherings likely to draw 10 or more people.
Temporarily restrict evictions and foreclosures until May 1, 2020.
Close bars, restaurants and related businesses; take-out only.
Suspend utility disconnects.
These restrictions are just the beginning, and more restrictions may be implemented. Most currently, the Governor has allowed the hospitality industry to take out $20,000 in short term loans at no interest for up to six months. She has the authority to offer these types of programs because the legislature passed HCR 5025.
HCR 5025 grants the governor additional emergency powers, while also placing certain limitations and oversight on this authority by the Legislative Coordinating Council. The Governor has emergency powers in statute to deal with natural disasters and other kinds of situations generally foreseeable. HCR 5025 prevents the Governor from enacting restrictions on the sale of firearms and ammunition as well as prevent the confiscation or otherwise take control of the assets and accounts of local governments.
The Kansas Legislature passed to several bills aimed directly at addressing Covid-19 health and economic concerns. They include:
SB 27 extends unemployment eligibility for workers filing claims January 1, 2020 and later.
SB 142 expands the waiver authority for meeting education requirements (e.g., hours of attendance).
SB 102 grants the Judicial Branch with authority to extend statutory deadlines, time limitations on court proceedings and authorizes video conferencing
The Kansas Supreme Court has also acted quickly to protect litigants, lawyers and staff. On March 18, 2020, the Supreme Court released Administrative Order 2020-PR-016 directing all district and appellate courts to cease all but emergency operations until further order. The Supreme Court anticipates the order to remain in effect for at least two weeks, at which time it will be reevaluated.
The Court has also issued additional orders that include:
Kansas is facing a pandemic on a scale not seen since the flu of 1918 that will affect all citizens and damage our economy. Many predict that more difficult times are ahead. However, each branch of Kansas government has acted thoughtfully and courageously, taking significant steps to protect its citizens. I was able to witness firsthand a bipartisan approach to crisis management and fully believe we have made the necessary preparations that will allow us to resist and recover from the pandemic. Look after yourselves and your neighbors, and we will all get through this. Even through difficulty, we will reach the STARS.
*A more detailed analysis of 2020 legislation will be posted in the coming days.
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 2020 Session is approaching quickly. Summer break has ended, and Kansas lawmakers are attending Interim Committees. These committees will focus on a variety of issues such as criminal justice reform, retail electrical rates, and KanCare Oversight. However, bigger issues are on the horizon.
The legislature will look at several proposals in 2020 that may end up on the election ballot.
Merit Selection will be debated in 2020 ,with its opponents hoping to get a constitutional amendment on the ballot. There is currently a proposal in the Kansas Senate, SCR 1610, that would change Article 3 from a merit selection process to a governor appoint/senate confirm model. This is the process used for the Kansas Court of Appeals—the same process used this past session by Gov. Kelly that has renewed the debate on judicial selection. While SCR 1610 is on the table, it may not end up being the proposal championed by opponents of merit selection. The Kansas Legislature will hold interim committee meetings this fall to get the ball rolling. The KBA has a long-standing policy supporting merit selection for Kansas Appellate Courts.
We may also see a debate on whether the legislature may impose limits on the amount of money a person can receive for non-economic injuries. This debate is also spurred by a Kansas Supreme Court ruling in the past year. The ruling, Hilburn v. Enerpipe Ltd,dealt with a car accident. The Court found that the state’s non-economic damages cap of $325,000 violated the plaintiff’s right to have a jury determine compensation owed the injured. See; https://www.kansascity.com/news/state/kansas/article231561483.html
Supporters of a statutory cap would also like to see the constitution changed to allow the legislature to limit the amounts recovered for non-economic injury.
These are very large issues to tackle in an election year. They are wide ranging, with a multitude of interested parties—sometimes overlapping interest groups—that will require significant study over a relatively short period of time. How many amendments make it to the ballot remains to be seen, but it it sets the stage for an interesting 90 days in 2020.
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.