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.
This will be the third supreme court justice to retire under the Kelly Administration. Gov. Kelly has replaced Chief Justice Lawton Nuss and Justice Lee Johnson. Kelly appointed Justice Evelyn Wilson and Justice K.J. Wall, respectively. This appointment will be decided by the Kansas Supreme Court Nominating Commission.
The Commission was established in 1958 when Kansas voters supported an amendment to the state's constitution. Whenever a vacancy occurs on the Court, the commission is tasked with presenting the governor with a slate of three qualified candidates. The governor interviews the candidates and makes the appointment. This process, known as merit selection, is used by Kansas and 21 other states, along with the District of Columbia, for selecting all members of their highest court.
In the coming month, Gov. Kelly will also nominate two lawyers for the Kansas Court of Appeals. Those positions became available when Judge Steve Leben and Judge Joseph Pierron announced their retirements earlier in the spring. In early June, the Kansas Senate rejected the Governor’s first nominee, Carl Folsom; that action will restart the clock for the appointment. The second appointment was stalled due to COVID-19 concerns, but we can expect those appointments to take place this fall as well.
The case itself was as interesting as the circumstances surrounding its adjudication. The timeline was expedited, with the case being filed on April 9 and the ruling issued on April 11, the same day as the hearing. The basics of the case are that Gov. Kelly expanded her “stay at home” executive order on April 7th to include religious organizations. See; https://governor.kansas.gov/wp-content/uploads/2020/04/20-18-Executed.pdf This was due to three clusters of COVID-19 infections tracked to church gatherings. On April 8, the Legislative Coordination Council, on a 5-2 party-line vote, revoked this executive order under their authority in HCR 5025. However, the court found a technical issue in HCR 5025 concerning the State Finance Council’s role in Emergency Declarations. The court determined that the Legislative Coordinating Council was not the proper oversight authority. The court held that “[t]he LCC's purported revocation of Executive Order 20-18 on April 8 was a nullity, because the LCC lacked authority do so under HCR 5025's terms.” The court did not discuss the effect the Executive Order had on limiting religious gatherings nor did it invalidate the emergency declaration issued by the Governor.
The Kansas Legislature has been working feverishly in order to get out of town by this week. Rumor has it that the legislature will break a bit early to avoid a forced shutdown due to the COVID-19 spread. But this is just a rumor, and while many events and public spaces are closing or being postponed, the Capitol is open for business.
The Chief Justice and the legislature are currently working on language that would allow the courts to close. This is a direct response to the COVID-19 issue. A bill is being drafted as we speak, but the contents are vague at this time. There were talks of speedy trial issues and jury cases being postponed but no reviewable language at present. When that language is available, I will email this group.
The big legislative item for the KBA was SB 157, presumptive shared parenting. The KBA coordinated opposition testimony from seven speakers and more than a dozen lawyers. The KBA was represented by Ron Nelson, a family law expert from Johnson County. Judge Keven O’Grady, Charles Harris, Prof. Linda Elrod, Sara Rust-Martin, and Dr. Bud Dale also spoke in opposition to SB 157. The bill has not been “worked” just yet, and its passage is in doubt. See; https://www.sekvoice.com/news/20200309/house-weighs-adopting-presumption-of-equal-time-in-child-custody/1
The KBA also testified on HB 2713, uniform notarial act. This bill will update the Kansas Notarial Act first passed in 1984.
The House Judiciary passed out HB 2401 as amended. HB 2401 deals with quorum requirements for co-ops. The KBA provided neutral testimony on the issue and requested a sunset on the bill. The committee agreed and amended the bill to include a 3-year sunset. The sunset will allow all interested parties to work on a more robust Co-Op Corporate Act. The bill heads to the floor.
Finally, the KBA provided supportive testimony for the Kansas Judicial Budget to the Senate Ways & Means Committee. This support was also leveraged through a joint letter sent to committee members on Monday. At present the House has placed the full request of $18.3 million into its budget, but Senate Ways & Means Committee has only recommended a 2.5 percent pay raise. How this shakes out may wait until veto session.
The Kansas Legislature continues to make progress on several fronts this session, but the spread of COVID-19 is at the forefront of everyone’s thoughts. Hand washing and use of hand sanitizers are now the norm, but social distancing is difficult in this setting. The issue is now being monitored on a day-to-day basis, with KDHE providing multiple updates per day.
The goal appears to be to have each chamber finalize respective versions of the budget, draft an acceptable transportation plan, then break. The original schedule called for a short break between March 25th and March 30th with First Adjournment coming on Friday April 3rd. It is difficult to determine if we will stick to the schedule given the current health issues at play. We are in a unique situation dealing with rapidly changing circumstances. Patience will be required.
The Kansas Supreme Court has seen significant change in the last five days. Chief Justice Nuss retired last Friday, December 13th, 2019. Yesterday, Monday, December 16, Gov. Laura Kelly appointed District Judge Evelyn Wilson to the Supreme Court. Today, Dec. 17th, Justice Marla Luckert ascends to the Chief Justice role. That is a lot of office moving!
Gov. Laura Kelly made her first Supreme Court appointment yesterday when she announced Shawnee County Chief Judge Evelyn Wilson would take a position on the Court. This position was created with the retirement of Justice Lee Johnson. Wilson was one of three nominees for the post; the other two up for consideration were Dennis Depew and Steve Obermeier.
The Kansas Supreme Court is now accepting comments on new rules 11.01, 147 and 148. These rules are required to be amended as a result of changes to KSA 2016 Supp. 75-764. These changes concern notice to the Kansas Attorney General’s Office or prosecuting attorney when there is a challenge to the validity of a Kansas law on grounds that the law violates the state constitution, federal constitution, or federal law.
Ag Schmidt stated that, “the problem this bill seeks to address is not the outcome of those disputes – it is the process that allowed the disputes to be decided before the attorney general’s office was told they were underway.”
Attorney General Derek Schmidt proposed the new law after two instances where a law was found unconstitutional, and the attorney general did not have an opportunity to be heard. Ag Schmidt stated that, “the problem this bill seeks to address is not the outcome of those disputes – it is the process that allowed the disputes to be decided before the attorney general’s office was told they were underway.” Senate Bill 334 is a belt-and-suspenders measure aimed at plugging the procedural gaps that allowed these two cases to fall through the cracks. It is intended to reaffirm and clarify the public policy that when the validity of a state statute is being tested in court, the attorney general, as the state’s chief legal officer, is to receive notice of the dispute and have the timely opportunity to appear in relation to the statute’s validity. It also provides an after-the-fact mechanism so that if the notice requirements are violated, an order invalidating a state statute may be set aside once the attorney general learns of the matter. See; http://kslegislature.com/li/b2015_16/committees/ctte_s_jud_1/documents/testimony/20160127_02.pdf
As such, the Kansas Supreme Court will accept comments on this issue. It is important to recognize that the above cited rules will take effect on September 6, 2016 but the court will review comments and input to determine if the rules should be further amended. You can view the rule here: http://www.kscourts.org/rules/Rules_Open_for_Public_Comment/default.asp
The court will receive comments until 5 p.m. Sunday, October 2, 2016.
This past week there have been a number of
news articles surrounding the school finance case, Gannon v. State. This case deals with the appropriate amount of
money need to provide a suitable education to Kansas kids. It is anticipated
that the Kansas Supreme Court will be issuing its ruling in the next month or
so. This ruling could require the state of Kansas to appropriate more funds for
K-12 schools. The Kansas Supreme Court heard oral arguments on this case on
October 8, 2013.
In each case the main thrust is what happens
to the state budget if more money is needed to satisfy the Kansas
Constitutional requirement to deliver a "suitable” education. There appears to
be three distinct options. One is to simply appropriate the money and raise
taxes. This option faces a very tough road during the 2014 session as the
Kansas legislature recently passed a huge tax cut. To raise these funds by
increasing taxes would undo a lot of that hard work. The second option is to
ignore the ruling. This would place the three branches of government in a very
uncomfortable position. The third option would be to change the Kansas
Constitution so the legislature is in direct control of school appropriations. This
idea was discussed earlier in 2013 but the votes were not there to put it on
the statewide ballot.
In the meantime the Kansas
Supreme Court has taken center stage for some very pointed criticism by
Republican legislators. For instance, last week Senate President Susan Wagle
(R-Wichita) stated that if the court rules later this year the same way it did in Montoy v. Kansas it would be "a killer
decision.” "It would kill all potential funding increases for all government
entities,” she said. "If the court does that, it is unaffordable and it is
unrealistic. "So defying them is a possibility.” (Read more at http://www.kansas.com/2013/11/09/3106367/top-kansas-legislators-weigh-in.html#storylink=cpy)
the same article, Rep. Gene Sullentrop (R-Wichita) also said that if the
legislature is ordered to pay $400-$500 million, there would be a serious
dilemma. He also believes that there is a "strong feeling that the court
doesn’t have jurisdiction to
appropriate money, and if there is a strong feeling that they are not looking
at all sides fairly, then we are not apt to go along with them.” (Read more at http://www.kansas.com/2013/11/09/3106367/top-kansas-legislators-weigh-in.html#storylink=cpy)
This sentiment was reiterated by Sen. Wagle when she commented to
the Wichita Business Journal that "If we do get that ruling down, what we’re
going to do is focus on what is the role of the Supreme Court.” "Should they be
interpreting law, should they be appropriating money?” Wagle said. "They aren’t
elected, and we’re real concerned that when they do analyze how much money is
appropriate for K-12 funding, they don’t get to hear all the other testimony
that we hear from the other needs of the state, whether it be transportation,
corrections, higher ed and all the other entities we fund. So it’ll be a very
tough year if we’re at odds.” See
John Stearns, Brownback: K-12 court
ruling will color next legislative session, Wichita Business Journal (Nov.
7, 2013), http://www.bizjournals.com/wichita/blog/2013/11/brownback-k-12-court-ruling-will.html?page=all.
The Kansas Bar Association
would like to thank all those involved in making the 7th Annual Fall
Legislative Conference a success. Attendees were treated to a fabulous CLE on
concealed carry, which was hosted by the KBA Bench & Bar Committee. Our
speakers included KBA Bench and Bar Chair Teresa Watson, Chief Judge Dan
Creitz, Assistant Kansas Attorney General C.W. Klebe, and Leavenworth County
Attorney Todd Thompson.
I would also like to thank our
conference panelists: Rep. Steven Becker (R-Buhler), Rep. Blaine Finch
(R-Ottawa), Rep. Jan Pauls (D-Hutchinson), Rep. John Rubin (R-Shawnee), and
Rep. Jim Ward (D-Wichita). I greatly appreciate them taking time out to
discuss the 2014 legislative session with us.
Finally, the Fall Legislative Conference
would not be possible without our wonderful and generous sponsors. They
R.E. "Tuck" Duncan/Kansas
Wine & Spirits Wholesalers Association
At this point it is important to
remember that two bills were introduced that would have a serious effect on the
operation, composition, and jurisdiction of the Kansas Supreme Court during the
waning days of the 2013 legislative session. Those bills:
HB 2415 which would reduce the mandatory retirement age from 75 years old
to 65 years old for members of the Kansas Supreme Court and the Kansas Court of
HB 2416 would split the Court of Appeals into two divisions. One devoted
to only criminal appeals (five judges) and the other devoted to civil appeals (nine
judges). In addition, this bill would limit the jurisdiction of the Kansas
Supreme Court to those areas outlined by the Kansas Constitution.
The KBA Board of Governors has
voted to oppose both of these bills.
It would not be a surprise if the
criticisms of the Kansas Supreme Court continue throughout the winter and into
the legislative session. Calls to alter the way Kansas Supreme Court justices
are selected will most likely pick up steam, as will proposals to stifle the
independence of the courts. Even now Kansas legislators are asking higher-education
officials to lobby the Supreme Court in an effort to save higher education
dollars. See Editorial: Court influence,
Lawrence Journal-World (Nov. 7, 2013), http://www2.ljworld.com/news/2013/nov/07/editorial-court-influence/.
What other tactics are used to change
public perception remains to be seen, but rest assured, we can expect a lot
Many feel that this decision is another example of the Kansas Supreme Court being out of step with the public and legislative policy. Some have speculated that this will lead to a harder push to change how Supreme Court justices are selected.
The Supreme Court also heard oral arguments in the school finance case this morning. That case, Gannon v. State of Kansas, will decide if the legislature failed to provide for a suitable education for K-12 students. This case has been a major issue going back seven to eight years. It can be stated that the push to alter how judges are selected in Kansas began with the first school finance case (Montoy v. Kansas) and that push will only intensify should the Court rule in favor of the plaintiff and order additional funding.
Finally, the Kansas Supreme Court created a new committee to discuss and make recommendations for the judicial branch budget. The committee, chaired by Judge Karen Arnold-Burger, was organized to deal with a multimillion-dollar Judicial Branch funding shortfall. This committee will revisit recommendations made by the Blue Ribbon Commission and develop both long-term and short-term strategies. The committee will prioritize funding reductions that may include furloughs. Seehttp://www.kscourts.org/Kansas-Courts/General-Information/news-releases.asp#100713
As it currently stands, funding for the Supreme Court is under water from the proposed FY 2015 budget. In the FY 2015 budget the Supreme Court asks for 11 new judges and 30 new clerks to deal with high case districts. It also asks for funding to renovate the Supreme Court to deal with security and staffing issues.