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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: Author: Joseph N. Molina III  2019 Session  2019-20  legislature  budget  election  Brownback  Supreme Court  Judicial Branch  school finance  Court of Appeals  Gannon  Hard 50  Kansas Supreme Court  Special Session  2016 Session  2017 session  2017-18  Alleyne  fall legislative conference  Senate  Sine Die  State of the Judiciary  2019 Golf Tournament  Caleb Stegall  conference  election day  First Adjournment  HCR 5005  House of Representatives 

VOTE

Posted By Joseph N. Molina III, Monday, October 29, 2018

In eight days, Kansans will head to the polls to elect a new governor, four U.S. Representatives, four statewide officials, one state senator and 125 Kansas representatives. The most watched statewide race continues to be the Kansas Governor’s race featuring five tickets. The GOP ticket of Kris Kobach/Wink Hartman vs. Democrats Laura Kelly/Lynn Rodgers vs. Independents Greg Orman/ John Doll. Also, in the mix are Richard and Nathaniel Kloos (I-Topeka) and Jeff Caldwell/Mary Gerlt (L-Leawood).

Fort Hays State University has done a poll on this race in its Kansas Speaks Fall 2018 Statewide Public Opinion Survey. This poll was undertaken for the Citizens of Kansas by the Docking Institute of Public Affairs at Fort Hays State university. The poll can be viewed here: https://www.fhsu.edu/docking/Kansas-Speaks/kansas-speaks-report-fall-2018

However, these are not the only votes you will cast on Nov. 6th.

Seven Courts of Appeals judges and numerous District Court judges are up for retention votes while judges in 14 judicial districts face off in partisan judicial elections. Last week Greg Musil, attorney with Rouse Frets White Goss Gentile Rhodes, P.C. spoke to KCUR 89.3 about judicial retention elections in Kansas and Missouri. This radio broadcast shed some light on how retention elections works. You can listen to the interview here - http://www.kcur.org/post/seg-1-voting-judicial-retention-elections-seg-2-kansas-citys-only-pay-what-you-can-caf#stream/0

In addition, several Kansas judges will face off in partisan judicial elections. Those districts include:

· 13th District

· 14th District

· 15th District

· 16th District

· 17th District

· 18th District

· 19th District

· 20th District

· 22nd District

· 23rd District

· 24th District

· 26th District

· 27th District

· 29th District[2]

Some districts provide information on the judges. For instance, in 18th Judicial District (Sedgwick County) the Wichita Eagle and the Wichita Bar Association do an online survey every two years. They provide the results via website. This year’s survey can be found at https://www.kansas.com/news/special-reports/judging-the-judges/.

In retention elections, district judges do not compete against an opponent; rather, voters have the option to vote “yes” to retain or “no” to remove from the bench. To keep the seat, the judge must receive a majority of “yes” votes. If the judge receives a majority of “no” votes the position becomes vacant.

The 10th Judicial District also provides voter information on judges sitting for retention in that district. The Johnson County Bar Association puts together these judicial evaluations by surveying more than 2,000 Johnson County lawyers. The results can be found at: https://www.jocobar.org/page/judicialevals2018

In the past, evaluations were offered for Kansas Appellate Court judges, but in 2012, those funds were diverted away from the Kansas Commission on Judicial Performance. Since that time, other non-profit associations have tried to take up the evaluation process with some success, but this year, I am unaware of any evaluations for the seven courts of appeals judges up for retention.

The Kansas courts do provide some information on appellate judges. They provide some biographical information, date appointed, hometown and a link to cases in which that judge was involved. http://www.kscourts.org/kansas-courts/court-of-appeals/judge-bios/default.asp.

The Kansas Courts of Appeals judges up for retention include:

Hon. Stephen D. Hill;
Hon. Kim R. Schroeder;
Hon. Henry W. Green Jr.;
Hon. Anthony J. Powell;
Hon. Tom Malone;
Hon. Michael B. Buser;
Hon. Melissa Taylor Standridge

For more information about voting please visit the Kansas Secretary of State website – www.kssos.org. You can find your polling place by entering your information here - https://myvoteinfo.voteks.org/VoterView/PollingPlaceSearch.do

Tags:  Author: Joseph N. Molina III  Court of Appeals  election  House of Representatives  judges  midterms  voting 

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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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Special Session Opens Today

Posted By Joseph N. Molina III, Tuesday, September 3, 2013
Updated: Tuesday, September 3, 2013

The Kansas Legislature reconvened at 8 a.m. today to finalize last week’s "Hard 50” proposal. Committees on both sides of the aisle will work this week to fix the sentencing structure for the most heinous of crimes. The Kansas Legislature is responding to a U.S. Supreme Court case that found certain sentencing guidelines to be unconstitutional when imposed by a judge and not a jury. The full opinion can be found online at http://www.kslegislature.org/li_2013s/documents/us_supreme_court_decision_alleyne_v_us.pdf/ and a report from the Special Committee on Judiciary can be found at http://skyways.lib.ks.us/ksleg/KLRD/2013CommRpts/spc-judiciary-cr.pdf.

 

The plan will be for the House to debate and pass the "Hard 50” proposal first, then sending it over to the Senate Wednesday or Thursday before a final Senate vote. The bill should be on the governor’s desk shortly thereafter.

 

It is also important to remember that legislators cannot receive or solicit any campaign contributions while they are in session. Be mindful of that little hiccup in the fundraising rules.

Quick take:

 

Judicial funding will play a role this week as the Kansas Supreme Court requests additional funds for this fiscal year in anticipation the 14th Court of Appeals judge position is confirmed. The Supreme Court will need money to complete renovations, hire staff, and pay other bills not in the original budget. A supplemental funds request has already been sent over to the Legislature for their consideration.

 

In addition, I reported in my "Legislative Wrap–Up” article (found in the KBA July/August Journal) that the Supreme Court "should be able to avoid furloughs during the two-year budget cycle” by using unencumbered funds. While still a possibility it remains unclear if the Court will be able to avoid furloughs in the 2015 fiscal year, which begins July 1, 2014. This July/August article was referencing the 2013/2014 fiscal years. As such the Kansas Supreme Court will be working vigorously to secure funds to keep courthouses open but the 2015 outlook appears uncertain at this moment.  

Besides the "Hard 50” legislative fix, the Kansas Senate will hold a confirmation hearing for Caleb Stegall, who was nominated to take the 14th Court of Appeals position last month. The Stegall confirmation has been at the top of most newspaper in the last week or so. The following articles have been published concerning the Stegall nomination.

With a significant Republican majority on the Senate Judiciary Committee and in the Kansas Senate as a whole, Stegall’s confirmation seems secure. We can anticipate opponents to discuss the method of Stegall’s nomination, the lack of transparency in the selection process (Brownback refuses to release names of applicants) and the executive branches redaction of names from a KORA request submitted by the Kansas League of Women Voters and other issues dealing with the process of selecting a Kansas appellate judge. However, in the end, the votes are there for an easy confirmation of Caleb Stegall.

Tags:  Caleb Stegall  Court of Appeals  Hard 50  legislature  Special Session  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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