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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 

Supreme Court Rule Changes

Posted By Joseph N. Molina III, Tuesday, July 10, 2018

 

To provide the most up-to-date information on rule changes the KBA Advocate will begin publishing Supreme Court Rule changes in its weekly blog in addition to legislative information.

 

This week please find the following rule changes:

 

 

I hope this proves useful!

Tags:  Kansas Supreme Court  rule changes  Rules 

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Supreme Court Accepting Comments on New Rules

Posted By Joseph N. Molina III, Tuesday, September 6, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

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.

Tags:  Kansas Supreme Court  New Rules  Rules 

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School Finance and the Kansas Supreme Court

Posted By Joseph N. Molina III, Wednesday, November 13, 2013

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.

 

Several news articles have followed this case through the legal process. See Suzanne Perez Tobias, Kansas school-funding lawsuit hinging on what’s ‘suitable,’ The Wichita Eagle (Oct. 9, 2013), http://www.kansas.com/2012/06/02/2357937/kansas-school-funding-lawsuit.html; see also John Hanna, Kansas governor’s legacy clouded by school funding case, The Kansas City Star (Oct. 13, 2013), http://www.kansascity.com/2013/10/13/4550916/kansas-governors-legacy-clouded.html; and Dion Lefler, Kansas Supreme Court hears arguments in school funding case, The Wichita Eagle (Oct. 9, 2013), http://www.kansas.com/2013/10/08/3046855/2-kansas-justices-promise-on-school.html.

 

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)

 

From 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.

Quick Take

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 include:

  • Alderson, Alderson, Weiler, Conklin, Burghart & Crow LLC
  • John Peterson & Bill Brady/Capitol Strategies
  • Kansas Bankers Association
  • Polsinelli PC
  • Whitney B. Damron P.A.
  • 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 Appeals.
  • 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 more.

Tags:  Gannon  Kansas Supreme Court  legislature  Montoy  school finance 

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Kansas Supreme Court in the News

Posted By Joseph N. Molina III, Tuesday, October 8, 2013

The Kansas Supreme Court has made quite the news splash over the last five days. First off, the Supreme Court reversed a Kansas Department of Health and Environment decision granting the Holcomb power plant a license to build the coal-fired plant in southwest Kansas. The Court stated that KDHE needed to revisit federal clean air regulations and review the permit with those standards in mind. The case is Sierra Club v. Robert Moser, Secretary of Kansas Department of Health and Environment. See http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2013/20131004/105493.pdf; see also Kansas high court reverses Holcomb plant permit, http://m.cjonline.com/news/2013-10-04/kansas-high-court-reverses-holcomb-coal-plant-permit.

 

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. See http://www.kscourts.org/Kansas-Courts/General-Information/news-releases.asp#100713

and http://www.kscourts.org/pdf_inc/Final-Agenda-CBAC-100713.pdf.

 

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.

Tags:  funding  Gannon  Judicial Branch  Kansas Supreme Court  KDHE  Montoy  Sierra Club 

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