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.
Late last week the Kansas Legislature adjourned for 2020 after a two-day Special Session. The Special Session became necessary when Gov. Laura Kelly vetoed COVID-19-related legislation on May 26th. The 2020 Legislative Regular, Veto and Special Sessions saw a significant decrease in legislation passed. It could be argued that 2020 was the least productive session in Kansas history, with fewer than 20 bills approved. On the flip side, we witnessed an increase in the number of issues vetoed by the governor or rejected by the legislature. For instance, Gov. Kelly vetoed HB 2054 which was the Omnibus COVID-19 response bill which forced the Special Session.
The Governor also vetoed:
• HB 2510 that contained education legislation
• HB 2619 which created a loan program for economic recovery, and
• HB 2702 dealing with property valuation
The legislature rejected two of Gov. Kelly’s executive reorganization measures. One reorganization effort would have combined DCF with KDADS; the other would have created the Energy Office. Finally, the Kansas Senate rejected the Court of Appeals nomination of Carl Folsom. The Governor will need to nominate a new candidate to fill the Court of Appeals vacancy.
The legislature was able to reach a compromise with the Governor’s Office on a new COVID-19 measure. That bill—HB 2016—was negotiated by the Governor’s office and legislative leaders. The rank and file members were not privy to these discussions. HB 2016 contains legislative oversight for federal COVID funds, new limitations on the Governor’s powers to close schools and businesses, immunity for healthcare groups and some businesses, product liability protection and extension of certain executive orders.
The bill extends the emergency declaration until Sept. 15th. The governor can extend that date for 15 days with the approval of the State Finance Council. The governor can close schools, but local school boards will have the authority to override her decision. Closing businesses will be left to county commissioners and local health officials.
The bill also creates Contact Tracing Privacy Act to protect the privacy of individuals whose information is collected through contract tracing measures. Contact tracing will not be mandatory, and those refusing to engage in contact tracing will be immune from liability.
Finally, the bill creates a provision that protects notarial acts (notarized signatures) performed via electronic means during the emergency declaration. This creates a safe harbor for remote notaries.
With the adjournment of the 2020 legislative session legislators will return to their districts to begin the campaign season. All 125 house seats are up as are all 40 State Senate seats. We will also have four congressional races and a very significant U.S. Senate race.
At 2:00 pm this afternoon—Tuesday, May 28th—the Kansas Senate Judiciary Committee will convene to discuss the nomination of Sarah E. Warner to the Kansas Court of Appeals. This position was vacated when Judge Patrick McAnany retired earlier this year.
This judicial confirmation hearing will be the first for Gov. Laura Kelly, although this is her second nominee for this position. As has been widely reported, Gov. Kelly’s initial nominee, Judge Jeffry Jack, failed to gain the needed support for the Kansas Senate. This after a quick ruling from the Kansas Supreme Court that the Jack nomination could not be withdrawn.
The Warner nomination will be voted on by the full Senate on Sine Die, May 29th. The Senate goes into session for Sine Die at 10:00 am.
The Senate may also attempt to vote on a constitutional amendment to alter the way judges are selected for the Kansas Supreme Court. Sen. Ty Masterson’s (R-Andover) motion to bring SCR 1620 to the Senate floor will take place tomorrow. This concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. Some senators are anxious to change the merit selection method in response to the Jack nomination issues. Sen. Hensley (D-Topeka) would like to simply correct KSA 20-3020 to include a withdrawal provision. How the Senate proceeds remains to be seen.
Normally, Sine Die is a formality and not much real business is undertaken. However, this year has been anything but “normal,” and a lot of issues remain up in the air at this moment. This could be a busy end to the session, or it could simply peter out.
This put pressure of leadership to break the expansion coalition by reworking the budget and removing key pieces which some of those expansion supporters wanted. That tactic failed with more that 80 no votes on that budget. However, after sitting around for most of Saturday, May 4th, the coalition finally broke and the floods gates opened. House Sub for SB 25 (state budget) passed 79-45. Many of the moderates in the expansion coalition flipped once it was obvious the budget would pass. See; http://www.kslegislature.org/li/b2019_20/measures/sb25/
With the budget out of the way, both chambers set their sights on a tax cut bill. Gov. Kelly vetoed an earlier version of the tax cut which the legislature could not override. The legislature used the same bill number for the latest tax cut bill. SB 22 would run about $240 million over three years. It would decouple the state from the feds on standard deductions starting in 2019, exempt foreign income starting in 2017, and ever so slightly reduce food sales tax burden. See; http://www.kslegislature.org/li/b2019_20/measures/sb22/
There is a good chance Gov. Kelly vetoes this bill as well. The message would be to look at a comprehensive tax policy change in 2020.
Should Gov. Kelly veto SB 22, the legislature may attempt an override on Sine Die. The override vote may not be the only vote taken by the Kansas Senate on May 29th. Sen. Ty Masterson (R-Andover) made a motion to pull SCR 1610 from Senate Judiciary. This will allow a vote to alter the merit selection process for the Kansas Supreme Court. See; http://www.kslegislature.org/li/b2019_20/measures/scr1610/
To appear on the ballot SCR 1610 would need 27 votes in the Senate and 84 votes in the House—a tall order for most legislative days—very difficult on Sine Die.
Finally, the Kansas Supreme Court will hear two other huge issues this Thursday, May 9th: the K12 lawsuit and the Court of Appeals hearing on selection of judges. The issues surrounding school finance are well document and many believe the new funding will end the lawsuit. The hearing on the Court of Appeals issue is also straightforward. It is a question of law. Who gets to pick? Gov. Kelly believes the pick remains with her (Kelly nominated KBA President Sarah E. Warner last week) while Senate President Susan Wagle believes the pick is now with Chief Justice Lawton Nuss. Chief Justice Nuss has recused himself from the proceeding and has no opinion on the matter.
The Kansas Legislature ended the 2016 legislative session June 1. Sine Die is normally a formality but this year both chambers spent time approving a tax bill vetoed by Governor Brownback, voted on a transgender bathroom resolution and discussed possible solutions to the school finance decision which found their previous equity fix unconstitutional.
The tax bill is now law after both chambers, by near unanimous votes, overturned the governor’s veto. The tax bill now allows plaintiffs to have a de novo review of their cases at the district court level. At first glance this seems a simple solution but the back story deals with the sale of a large pizza company and a tax bill near $43 million. See; http://bit.ly/1sqIXd6
The Kansas Senate also approved a resolution condemning the federal government’s order to public schools on transgender student’s bathroom usage. The Kansas Attorney General will challenge the law in court.
The Kansas Senate also approved a resolution condemning the federal government’s order to public schools on transgender student’s bathroom usage. The Kansas Attorney General will challenge the law in court. The federal edict requires schools to allow transgender students to use the restroom of the gender they identify with, not their gender at birth. See; http://abcn.ws/1spFICI
Neither chamber chose to solve the school finance issue on the last day of the session. The Kansas Senate debated the idea in caucus with a number of potential solutions but in the end leadership decided not to press the issue. The mood was tense and many legislators are upset with the court for threatening to shutdown schools and some want to defy the court’s ruling.
The last big piece of the day was the failure to meet monthly revenue projections for the 10th time in 12 tries. Revenues are down $74.5 million for the month of May. This comes after the Consensus Estimating Group reduced these estimates significantly in April. This also comes on the heels of Governor Brownback cutting state budgets, higher education and transferring funds to have an ending balance of $21 million on June 30. The ending balance is now a deficit reaching $55 million, maybe more should June number trend downwards as well.
To sum up, the state is now $55 million in the red, the legislature passed a tax bill that has the potential for a $43 million tax refund and the estimate to provide school equity is $38 million. The outlook is uninspiring.
June 1 also marked the deadline to file for legislative elections or withdraw from the election. A number of legislators decided this would be their last term, retiring on the last day of the session. Some prominent names include, Speaker Ray Merrick, Speaker Pro Tem Peggy Mast, Rep. Mark Kahrs, Rep. Tom Moxley, Senate Vice President Jeff King, Sen. Steve Abrams and Sen. Mitch Holmes.