Print Page | Contact Us | Sign In | Register
The Advocate
Blog Home All Blogs
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.

 

Search all posts for:   

 

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 

Special Session 2016

Posted By Joseph N. Molina III, Monday, June 27, 2016
Updated: Monday, June 27, 2016

About the Author


Joseph N. Molina III
Legislative Services Director

KansasBarLeg

The Kansas Legislature reconvened last week to begin discussing a resolution to the school finance issue. Both chambers were in session and several committees held hearings. The Senate Judiciary Committee passed out a constitutional amendment that would prohibit the Kansas Supreme Court from closing schools, See http://www.kslegislature.org/li/b2015_16/
measures/scr1602/
. This is the same proposal discussed during the Joint Meeting of the House and Senate Judiciary Committee. The KBA submitted testimony opposing this proposal at the Joint Meeting. See http://www.kslegresearch.org/KLRD-web/2016SpecialSession-Testimony.html

The Senate debated this resolution but was unable to garner the requisite votes need to pass it.  The measure failed 26-13. This basically ended the discussion of limiting the court’s power in the Senate. See http://bit.ly/28Xg6nc

The House Judiciary Committee introduced a constitutional amendment that would limit school funding to no more than 45 percent of the state budget and remove the word “suitable” from the Article 6 Section 6 of the Kansas Constitution. See http://bit.ly/28Z71Qo. This proposal was introduced by Rep. John Rubin (R-Shawnee) who is not seeking reelection.

Rep. Craig McPherson (R-overland Park) introduced HB 2002 that would create the superior court of Kansas and limit the power of the Kansas Supreme Court. The superior court would hear all cases assigned by law and be the court of final appellate review in cases under its court’s jurisdiction. See http://bit.ly/28XDogT

Rep. Barker did not set a committee meeting to hear either of these proposals. So both died without debate.

Both chambers debated the school finance bill. The House discussed HB 2003 and the Senate debated SB 3. Both bills are designed to shift current appropriations around to fund the equity portion of the school finance case. The total money being discussed is $38 million. Some money comes from tobacco funds ($4.1 million), some from the extraordinary needs fund ($7.2 million), virtual schools ($2.8 million) and a cut for base state aid ($13 million). The cut to base state aid will take operation money and shift that to property tax relief. See http://bit.ly/28Z6NbT

After some thoughtful reflection and some prodding from Johnson County lawmakers the idea to cut school funding by $13 million dollars was dumped and replaced with monies from the sale of the Kansas Bioscience Authority. Should this sale not produce the needed revenue the equity portion of the school finance issue would be buoyed by the extraordinary needs fund.  All parties, including the plaintiffs in the case, agreed that this solves the equity issue. See http://bit.ly/28YqKvP see also http://bit.ly/291VLQE and http://bit.ly/298jdLd

With the passage of the school finance bill the 2016 Special Session came to an end. A constitutional crisis was averted and the courts withstood early challenges to its powers. The focus now shifts to August primaries and then the general elections. Look for anti-court/non-retain ads and information to begin appearing all over the state. It should be an interesting summer.

Tags:  2016 Session  Special Session 

Share |
PermalinkComments (0)
 

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 

Share |
PermalinkComments (0)
 

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 

Share |
PermalinkComments (0)
 

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 

Share |
PermalinkComments (0)