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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.

 

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Top tags: legislature  Brownback  budget  Supreme Court  Gannon  Hard 50  judicial branch  Kansas Supreme Court  Special Session  2016 Session  2017 session  2017-18  Alleyne  Court of Appeals  school finance  Senate  State of the Judiciary  Caleb Stegall  election  HCR 5005  legislators  merit selection  Montoy  opening  Rules  2014 Session  2015 Session  2015-16  annual  Brown v. Board of Education 

Legislators return to Topeka

Posted By Joseph N. Molina III, Tuesday, January 13, 2015
Kansas legislators returned to work yesterday with a very light agenda for the week. Not much is scheduled except for a small number of new bills being introduced. It is important to remember that there will be no bill "carry-over” from last session. We are in a new cycle so bills will need to be reintroduced and work their way through the process.

 

Hallway talk centers on budget issues, possible tax increase on alcohol and tobacco, a possible raid of the tobacco settlement money to pay down the deficit, and a renewed effort to change merit selection. At this point these ideas are mere conjecture as we should know more when Gov. Brownback releases his two-year state budget.

 

The governor will make his proposals during the State of the State address this Thursday. We have seen the governor focus on morality issues and family unity concerns while addressing possible budget fixes. We could probably expect more of the same during the speech. However, the gorilla in the room remains the school finance formula and how that affects the state budget.

Quick Take

As far as committee meetings are concerned, the Senate Judiciary Committee will meet in Room 346-S at 10:30 a.m., Monday through Friday. Sen. Jeff King (R-Independence) continues as Senate Judiciary chair with Sen. Greg Smith (R-Overland Park) as vice chair. The House Judiciary Committee will meet in Room 112-N at 3:30 p.m., Monday through Thursday. Leadership for this committee has changed with a new chairman, Rep. John Barker (R-Abilene), a new vice chair, Rep. Charles Macheers (R-Shawnee), and Rep. John Carmichael will sit as ranking minority leader. For other committee meeting times and locations, please access http://www.kslegislature.org/li.

Chief Justice Lawton Nuss will give the State of the Judiciary address on Wednesday, January 21 at 2:30 p.m. The public can access a live webcast of the State of the Judiciary address by following the Watch Supreme Court Live! link in the right-hand column of the Kansas Judicial Branch website at http://www.kscourts.org. The address will be recorded for viewing afterward by anyone unable to attend in person or watch it live online.

 

For more information and bills new to the legislature please check http://www.ksbar.org. The KBA will be updating its bill tracking chart weekly with more information as the session moves along.

Tags:  Brownback  budget  Lawton Nuss  legislators  legislature  State of the Judiciary  State of the State 

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Legislature Makes Quick Work of 2013 Special Session

Posted By Joseph N. Molina III, Monday, September 9, 2013
Updated: Monday, September 9, 2013

The Kansas Legislature managed to make quick work of the 22nd Special Session. The Legislature managed to draft a bill, hold hearings in both chambers, pass one amendment in committee, defeat another amendment on the House floor (Ward’s Voter’s rights bill), and approve a bill—all in less than two full days. That is very impressive for a group of legislators who led a nine-day overtime period in the veto session. That type of efficiency should be commended.

 

As for the main reason for the Special Session, the Hard 50 ruling, the Legislature managed to pass out HB 2002. This bill was crafted by the Kansas Attorney General’s Office, with input from various law enforcement and prosecuting attorney groups. Please read the supplemental not on HB 2002 for more information.

 

The Kansas County and District Attorney Association played a vital role in moving this bill so quickly through the process. The KCDAA enlisted a number of district attorneys to support the bill. DAs Marc Bennett and Steve Howe testified in support of the Hard 50 fix. They argued that the fix was needed to restore certainty to the sentencing process. The most compelling testimony came from Sen. Greg Smith, who testified on behalf of victim’s families.

 

While HB 2002 faced little opposition when the final votes were tallied (122-0 in the House and 40-0 in the Senate), there were some concerns that the "retroactivity” provision in the bill would fail the constitutionality test. Subsection ”d” reads:

The amendments to subsection (c) by this act: (1) Establish a procedural rule for sentencing proceedings, and as such shall be construed and applied retroactively to all crimes committed prior to the effective date of this act, except as provided further in this subsection; (2) shall not apply to cases in which the defendant's conviction and sentence were final prior to June 17, 2013, unless the conviction or sentence has been vacated in a collateral proceeding, including, but not limited to, K.S.A. 22-3504 or 60-1507, and amendments thereto; and (3) shall apply only in sentencing proceedings otherwise authorized by law.

Proponents argued that a procedural change could be applied retroactively so long as it does not alter the substantive language of the statute. By merely providing for a new sentencing process, which is in line with the U.S. Supreme court ruling in Alleyne v. U.S., 133 S. Ct. 420 (2012), can HB 2002 apply to defendants who are subject to the Hard 50 sentence?

 

Opponents of HB 2002 argued that creating a new process for sentencing is a substantive change since the U.S. Supreme Court found the old rule unconstitutional, thereby voiding that statute. By passing HB 2002, opponents argued, the Legislature has re-created the Hard 50 policy that is a substantive change to the criminal code.

 

How the courts interpret this change will take some time, but revisiting the Hard 50 policy is not out of the realm of possibilities.

 

For more Hard 50 news please see:

Quick take: Rep. Edwin Hale Bideau III (R- Chanute) passed away on September 5, 2013. Bideau was born in Chanute on October 1, 1950. He received both his business and law degrees from Washburn University in Topeka. Bideau served two stints in the Kansas Legislature, once in 1984 and again in 2012. Funeral services will be held at 2 p.m. on Tuesday, September 10, 2013 at the First Presbyterian Church in Chanute.

While the Hard 50 took a significant portion of the Special Session, the political attention of many was firmly placed on the confirmation hearing on Caleb Stegall. As has been reported repeatedly, Stegall is the chief counsel to Gov. Sam Brownback. He applied for the previous two Court of Appeals openings created with the retirement of Judge Christel Marquardt and the sudden death of Chief Judge Richard Green. In both instances, Stegall failed to advance to the final three nominees. Judges Kim Schroeder and Anthony Powell were selected for these two openings.

 

The governor argued for a change to the selection process for the Kansas Court of Appeals, and with the aid of his chief counsel and the Kansas Legislature, the process was altered to allow the governor to nominate any individual and the Senate to confirm that nominee. It is important to point out that Stegall, on behalf of the governor’s office, testified on several occasions in support of the change.

 

Stegall, along with 18 other individuals, applied for the vacant 14th Court of Appeals position. The governor formally nominated Stegall on August 22. The Senate held his confirmation hearing on September 3 and the full Senate confirmed him on September 4. The final vote was along party lines 32-8.

 

While it was apparent that Stegall had a majority of individuals willing to support his nominations, Democrats decried the process by which he was nominated. Democrats argued that the new process was secretive and less open than the merit selection process. See Irony swirls around Brownback's cloak of judicial secrecy, CJOnline.com,

http://cjonline.com/blog-post/tim-carpenter/2013-08-22/irony-swirls-around-brownbacks-cloak-judicial-secrecy.

 

In addition, several Kansas lawyers, two who wrote letters of recommendation for Stegall, found the new process unappealing. One even stated that the new process weakened Kansans’ confidence in their judges. See Notable Kansans weighing in against new appellate court selection process, LJWorld.com, http://www2.ljworld.com/news/2013/aug/30/notable-kansans-weighing-against-new-appeallate-co/.

 

Nevertheless Stegall was easily confirmed. However, it appears likely that Democrats will push to alter the selection process by making the application process more open. Sen. Anthony Hensley has pre-filed a bill for the 2014 session that would require the governor to release the names of any applicants. How this is received in January may shape the entire session.

 

Reaction to the Stegall nomination:

Tags:  Alleyne  Brownback  Court of Appeals  Hard 50  HB 2002  legislature  Special Session  Stegall  Supreme Court 

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Caleb Stegall nominated for 14th Court of Appeals position

Posted By Joseph N. Molina III, Tuesday, August 20, 2013

Gov. Sam Brownback officially nominated chief counsel Caleb Stegall for the Kansas Court of Appeals on Tuesday, August 20. Stegall was nominated ahead of 18 other applicants. Brownback called him "one of the most if not the most qualified candidate Kansas has ever had.”

 

Prior to becoming chief legal counsel, Stegall was elected as Jefferson County attorney. He also helped gain the release of four missionaries in Haiti some years ago.

 

Stegall thanked many of his friends and family but paid special attention to those individuals who disagreed with him on judicial selection methods. He mentioned several by name, including former Kansas Attorney General Steve Six, current KBA President Dennis Depew, and former Sebelius appointee Steve Martino. These individuals recommended Stegall on a personal basis and not thru their respective organizations.

 

Stegall will now stand for confirmation by the Kansas Senate. He will also need to provide answers to a questionnaire. This questionnaire was prepared by Judge Deanell Tacha, Professor Stephen McAllister, and Professor Reginald Robinson on a written questionnaire for individuals nominated to the Kansas Court of Appeals. Attached is a link to the questionnaire.

 

The Kansas Legislature is set to return for a special session on Tuesday, September 3. The Senate will also take up a number of governor appointments, including the Stegall nomination. Hearings for these appointments will begin the week on August 26. However, at this time no meetings have been set.

 

Here are some news stories about the Stegall nomination:

Download File (PDF)

 Attached Files:

Tags:  Brownback  Caleb Stegall  Court of Appeals  Dennis Depew  legislature  Senate 

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Special Session Set for September 3

Posted By Joseph N. Molina III, Tuesday, August 6, 2013

For the 22nd time in Kansas history the Kansas Legislature will reconvene in Topeka for a Special Session. This is the fourth time that the Legislature returned for a special session since agreeing to meet yearly in 1967.

 

The primary reason for this unique experience is to debate changes to Kansas’ "Hard 50” sentencing statute. Earlier this summer, the U.S. Supreme Court ruled that "any element that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” See full text of Alleyne v. U.S., 133 S. Ct. 2151 (2013). In Kansas the trial judge decides whether the "Hard 50” sentence is appropriate; however, to comply with this new ruling, the Kansas Legislature will have to adopt a rule change allowing the jury to be the fact finders in "Hard 50” circumstances. See https://governor.ks.gov/media-room/media-releases/2013/07/26/governor-brownback-calls-special-legislative-session.

 

While this appears to be a simple and quick rule change, a number of other issues have been thrown into the mix that may require the Legislature’s attention. For instance, Kansans for Life would like the Legislature to take up a fetal heartbeat law that failed to pass during the regular session. See http://www.shawneedispatch.com/news/2013/jul/29/kansas-abortion-group-sees-opportunity-special-ses/. This may be a hard sell since leadership has already taken that issue off the table. See http://cjonline.com/news/state/2013-07-29/special-session-abortion-table-court-seat-play. However, Kansans for Life is a very influential group that may be able to change enough minds and force the leadership’s hand.

Quick Take:

President Barack Obama has nominated Kansas Supreme Court Justice Nancy L. Moritz for the U.S. Court of Appeals for the Tenth Circuit. Justice Moritz has served as a justice of the Kansas Supreme Court since 2011. During her career, she has handled a broad array of legal matters before both state and federal courts as an assistant U.S. attorney in the District of Kansas, an appellate coordinator for the District, and as a member of the Kansas Court of Appeals. Justice Moritz was born in Beloit and was raised in the small community of Tipton. She received her bachelor’s degree from Washburn University in Topeka in 1982 and her juris doctorate from the Washburn University School of Law in 1985.

The most public issue to date is the possible truncated confirmation of the 14th Court of Appeals judge. The newly enacted law requires the governor to name a candidate for the vacant 14th position by Thursday, August 29. To date, the governor has declined to share the names of any applicants and the ABA recently issued a statement disputing Gov. Brownback’s take on appellate selection. See http://cjonline.com/news/2013-07-30/aba-disputes-brownbacks-take-judicial-selection.

 

Should the governor utilize the statutorily allotted time to select a candidate, the Senate Judiciary Committee would have less than six days to convene a committee hearing, request public input, collect relevant information on the candidate and hold a committee hearing before the start of the Special Session on Tuesday, September 3. This would appear to be a very quick turnaround for a significant position within the third branch of government. However, Sen. Jeff King, Senate vice president and chair of the Senate Judiciary Committee, has stated that he intends on completing a thorough review of the candidate. How quickly this review is accomplished is the main question.

 

Needless to say several news articles and editorials find the summer confirmation of a Court of Appeal’s judge using this new process curious.

Even with the public paying special attention, the outcome seems to be inevitable and the governor’s selection should earn quick confirmation. However, the new selection process once deemed to be more open and representative appears less so.

Tags:  Alleyne  Brownback  Hard 50  Moritz  Special Session 

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Gov. Brownback Calls Special Legislative Session

Posted By Joseph N. Molina III, Tuesday, July 30, 2013

The following is from the July 26 press release from Gov. Sam Brownback.

 

In the interest of protecting public safety and in response to a request from Attorney General Derek Schmidt, Gov. Sam Brownback will call the legislature into special session at 8 a.m. on Tuesday, September 3.

 

The attorney general formally requested the special session on July 24 for the purpose of repairing Kansas’ "Hard 50” sentence following the June 17 decision of the U.S. Supreme Court in Alleyne v. United States. Legal experts in the field agree that the Alleyne decision renders the current Kansas "Hard 50” law unconstitutional because a judge rather than the jury makes the sentencing decision. According to the attorney general, the legislature can cure the constitutional defect by adopting a relatively simple procedural fix allowing the jury to make the necessary factual findings before the "Hard 50” sentence is imposed.

 

"The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said. "It is intended to remove the most dangerous and violent killers from society for at least 50 years. The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans. I am confident the legislature can and will act quickly, with resolve and narrow focus, to protect our citizens by restoring to prosecutors the immediate ability to seek the ‘Hard 50’ sentence for the worst offenders.”

 

Broad bipartisan support exists among the leaders of this legislature that this special session is necessary and is in the best interests of public safety. Additionally, law enforcement and prosecutorial agencies across the state have urged the governor to adopt the attorney general’s recommendation.

 

"We must address this issue to protect all our citizens, but particularly out of concern for the victims of these crimes and their families,” Brownback said. "I agree with the attorney general’s opinion that we face an ‘extraordinary occasion’ sufficient to justify this office exercising its authority to call the Legislature into special session pursuant to Article 1, Section 5 of the Kansas Constitution.”

 

Due to the constitutional and statutory requirement that the state bring criminal defendants to trial in a speedy manner, time is of the essence. After consulting with Attorney General Schmidt and legislative leaders, it was agreed a special session during the first week of September is optimal timing. According to the law enforcement community, that time period effectively protects public safety while allowing the necessary time requested by the attorney general for adequate preparation and planning to ensure a quick, focused and orderly session. According to the attorney general, putting this issue off until next January will "virtually guarantee” an increase in "the number of convicted killers who will be eligible for parole after only 25 years instead of after 50 years.”

 

"It is my hope after talking to legislative leaders that the special session can be completed by the close of business on September 5,” said Brownback.

 

See also http://www.kshb.com/dpp/news/state/kansas/gov-sam-brownback-calls-september-special-session-to-rewrite-hard-50-criminal-sentencing-law.

 

The Kansas Legislative Research Staff has put together a list of all 22 Special Sessions and the topic covered by that session. See http://skyways.lib.ks.us/ksleg/KLRD/Publications/2013-Kansas_Legis_Special_Sessions.pdf.

Quick Take

In addition to the "Hard 50” discussion, rumors have been circulating about the possibility of debating a repeal of the death penalty and the confirmation of the 14th Kansas Court of Appeals judge. Gov. Brownback has not appointed anyone but that could be accomplished prior to the September 3 Special Session.
We could also see additional abortion-related legislation. See http://www.shawneedispatch.com/news/2013/jul/29/kansas-abortion-group-sees-opportunity-special-ses/.

KBA Legislative Meeting

Coincidentally, the Kansas Bar Association is scheduled to hold its legislative meeting on Friday, August 30 at the KBA offices in Topeka. This meeting will cover the issues discussed in the 2013 session, the possible Special Session topics and a look forward to 2014.

 

If you are a KBA member you may get updates on committee activity on our website at http://www.ksbar.org/members/group.asp?id=111712.

Tags:  Alleyne  Brownback  Hard 50  legislative  legislature  Supreme Court 

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2013 Legislative Timeline

Posted By Joseph N. Molina III, Tuesday, January 8, 2013
Updated: Wednesday, June 26, 2013

The 2013 Kansas Legislature is set to open on Monday, January 14. The official opening will start at 2 p.m. with the swearing in of House and Senate members. The big news will come out of January 15 when Gov. Brownback addresses the Legislature to give his State of the State address. The governor will most likely discuss the Kansas Budget process, moving from an annual budgeting cycle to a biannual cycle. He may also discuss the impact of the 2012 tax cuts, reauthorizing the 2009 1-cent sales tax, school funding, and merit selection.

 

After the governor has laid out his vision for 2013, legislators will begin introducing legislation and holding hearings. To keep pace with the fast paced Capitol issues, follow me on twitter (@KansasBarLeg) for the latest legislative updates. You can also keep tabs on legislative deadlines at http://bit.ly/2013SessionPlanner.

Tags:  Brownback  budget  opening  timeline 

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