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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: legislature  Brownback  budget  Supreme Court  Gannon  Hard 50  judicial branch  Kansas Supreme Court  Special Session  2016 Session  2017 session  2017-18  Alleyne  Court of Appeals  school finance  Senate  State of the Judiciary  Caleb Stegall  election  HCR 5005  legislators  merit selection  Montoy  opening  Rules  2014 Session  2015 Session  2015-16  annual  Brown v. Board of Education 

Big Push for First Adjournment

Posted By Joseph N. Molina III, Tuesday, February 24, 2015

This week the action was in the House Judiciary Committee where judicial selection resolutions were passed out favorably. These bills include the following:

Both bills passed on 13-9 votes and are now headed to the House floor. Timing is the issue now. The first major deadline for the session is turnaround on Friday, February 27. All bills not passed out of their house of origin are dead after this date; this does not include concurrent resolutions. It is likely that leadership will use this week to pass bills that would die if left till after the deadline then run the judicial selection bills.

However, the session is a fluid place and things change rapidly. If either of these resolutions comes up for debate, the KBA will mobilize our membership on short order. For those that are interested, please keep an eye out for a "Call to Action” email to be sent via a "KBA Alert.” This email will include links to both resolutions, links to legislators contact information, a sample email to use and talking points if anyone wishes to personally call their representative.

In addition, the KBA testified on SB 197, which makes the Supreme Court Nominating Commission (SCNC) a public body subject to the open records act.

Judge Karen Arnold-Burger, KSAJ, and KADC also opposed this bill. Sen. King believes that SB 197 is a technical fix that expands the transparency of the SCNC. He believes that issues can be fixed with simple changes and that no constitutional issues exist. You can find the KBA testimony online. This bill should be worked in short order.

The separation of powers issue is also very present in the recently filed lawsuit Solomon v. Kansas. Here Judge Solomon claims that last year’s judicial budget omnibus bill is unconstitutional. The lawsuit also claims that the omnibus bill was retaliation for the school finance ruling. Judge Solomon is represented by Pedro Irogonegaray

The Solomon case may very well bleed over into the Judicial Budget for FY 16/17. The subcommittee on agency budgets held a hearing on the judicial branch budget on Thursday, February 19. The judiciary presented a budget requesting an additional $8.5 million. This would be for operations in FY 16. The judicial branch explained that without these added funds the court would be forced to furlough. It is up to the legislature to fund this request or allow the courts to add additional surcharges. How this plays out remains to be seen.

Also, please visit www.ksbar.org to find any bills of interest in the KBA Bill Tracking Chart.

Tags:  2015 Session  budget  judicial branch  legislators  legislature  merit selection  Supreme Court 

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Gannon

Posted By Joseph N. Molina III, Tuesday, March 11, 2014

Legislators returned to what was supposed to be a short uneventful week following turnaround. However, the Kansas Supreme Court decided to release the much-anticipated Gannon v. State of Kansas school finance case. The entire 110-page opinion can be found online at http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140307/109335.pdf.

 

The Supreme Court issued a unanimous opinion that had a bit of everything for everyone. The bullet point version found that the Court affirmed the lower court’s ruling that the state failed to meet its duty to provide equity in public education as required by the constitution. The Court determined that the state has created "unreasonable, wealth-based disparities” by failing to fund Capital Outlay and the Local Option Budget (LOB). The Supreme Court recommended that the lower court provide the legislature with the opportunity to address the inequities and request action by July 1, 2014. Those changes could come in the form of fully funding, partially funding, or making changes to the current statutes. To fully fund LOB and Capital Outlay the legislature would have to come up with roughly $139 million.

 

The really big issue dealing with suitability was remanded to the three-judge panel so they may apply the "Rose Standard” and return a finding based on that process. The Supreme Court found that a cost based focus was too narrow.

 

For more information on this issue and some local reactions, including the KBA response, please see the following:

The other really big news was the Kansas Senate passing the Judicial Branch Omnibus bill, Senate Sub. for HB 2338. This bill combines a number of judicial branch issues together and passed them out of the Senate in one afternoon. The procedural move was a little unorthodox as it combined appropriations and substantive amendments into one bill. This is usually an unconstitutional two subject problem but it was glossed over in the Senate. A number of House members were upset as this omnibus bill will bypass the normal appropriation committees in the House and head straight to the House floor for a vote to concur or nonconcur. How the House handles this omnibus bill remains to be seen but we can expect higher scrutiny of the judicial branch budget on the House side.

 

Next week we have a full slate in both chambers as First Adjournment is right around the corner. The KBA has a hearing on HB 2398 dealing with the Kansas LLC Act on Wednesday in the Senate. We continue to wait on the medical malpractice bill, SB 311 to be set for hearing in the House. It should be noted that SB 311 was referred to the Committee on Commerce, which has no sitting lawyers.

Tags:  Gannon  House of Representatives  Senate  Supreme Court 

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Both Chambers Fully Engaged

Posted By Joseph N. Molina III, Tuesday, February 25, 2014
With bill introductions left to exempt committees and hearings winding down, both chambers are working through a deluge of bills to avoid the drop-dead date of turnaround. All bills that fail to make it out by Friday, February 28 are dead. It is also important to note that this is an even numbered year so no bills will be "held over” to 2015. All bills that miss the cut off will need to be reintroduced next January.

 

There has been some hallway talk about a truncated session. Rep. Davis called for a 70-day session to avoid the many embarrassing bills that surfaced the past few weeks. This does not seem to be a viable option since Speaker Merrick has refocused on economics and has some serious work left to do. See http://www.kansas.com/2014/02/21/3303060/democratic-leader-calls-for-ending.html.

 

With the idea of a short session behind us there remain a number of big issues looming. Gannon comes to mind, but there is still no timetable for its release. The Capitol crowd gets a little antsier each passing week, and some are of the opinion we could be waiting till August. How this plays out remains to be seen.

 

Both of the KBA’s bills were debated on the House Floor this week. Rep. Bruchman carried HB 2398, concerning KS LLC Act, and Rep. Carmichael carried HB 2444, spend thrift trust. I am happy to report that both were passed on final action, 120-1 and 121-0, respectively. We will now work with the Senate to schedule hearings on both bills.

 

In addition, the KBA provided testimony is opposition to SB 364, allowing the chief judge more discretion in personnel matters. This bill was coupled with SB 365, allowing the district judges to elect the chief judge. Both bills may be worked in the coming days. The Kansas District Judges Association is opposed to both issues. You can find testimony at http://www.ksbar.org/?judicialservices. The Supreme Court is also a little concerned about SB 364 as described in this article from Topeka Capital-Journal. Chief Justice opposes bill to diffuse budget authority, http://cjonline.com/news/2014-02-17/chief-justice-opposes-bill-diffuse-budget-authority.

 

The KBA provided testimony to oppose HB 2650, benefit corporations. This bill was introduced by a national group called BLABS. The KBA has a subcommittee discussing a revision of the General Corporation Code. It would be preferable to weave this new concept into the revised code rather than have a standalone statute that may not fit. Testimony on HB 2650 will be online this coming week.

Quick Take

This past week was quite the tumultuous affair for some Kansas legislators. A number continue to feel the wrath of voting for HB 2453, the Religious Freedom Act, while one Kansas House Democrat caught significant heat for the spanking bill, HB 2699. Both of these bills helped Kansas make "The Daily Show with Jon Stewart."

Local newspapers also chimed in on both of these fiascos.

For spanking news:

It should also be noted that the morass of bills aimed at domestic relation issues have failed to move forward in the legislative process. The KBA testified against a number of these bills listed below, all of which should die by Friday. These bills are as follows:

  • SB 302, Rending surrogate parenting contracts unenforceable and creating an unclassified misdemeanor
  • HB 2450, Change in terminology; "best interests of the child" to "least detrimental alternative for the child
  • HB 2462, Domestic relations; child custody. residency and parenting plans; child support
  • HB 2558, Domestic relations; prohibition of case management process
  • HB 2604, Domestic relations, divorce, division of property, maintenance
Looking forward, the KBA supported HB 2568, which was introduced by the Kansas Judicial Council. Several years back the Judicial Council did a reorganization of all the domestic laws by combining three chapters into one. HB 2568 is a continuation of the project. The KBA supported the initial reorganization and all of the clean-up efforts introduced by the Family Law Advisory Council.

 

This last week before turnaround is going to be very busy with 30 to 40 bills working their way through the process. Those on the fence will look to exempt committees for a little "blessing” but the Speaker has indicated he will narrow his focus to keep the train on the tracks the remainder of the session. The Senate side could work less than 10 days after turnaround before adjourning. How those days are calculated is the big questions. Nevertheless, the Senate appears to be in a better position as it reaches the first significant deadline of the 2014 session.

Tags:  Daily Show  Gannon  House  Kansas Judicial Council  Senate  Supreme Court 

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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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Gov. Brownback Calls Special Legislative Session

Posted By Joseph N. Molina III, Tuesday, July 30, 2013

The following is from the July 26 press release from Gov. Sam Brownback.

 

In the interest of protecting public safety and in response to a request from Attorney General Derek Schmidt, Gov. Sam Brownback will call the legislature into special session at 8 a.m. on Tuesday, September 3.

 

The attorney general formally requested the special session on July 24 for the purpose of repairing Kansas’ "Hard 50” sentence following the June 17 decision of the U.S. Supreme Court in Alleyne v. United States. Legal experts in the field agree that the Alleyne decision renders the current Kansas "Hard 50” law unconstitutional because a judge rather than the jury makes the sentencing decision. According to the attorney general, the legislature can cure the constitutional defect by adopting a relatively simple procedural fix allowing the jury to make the necessary factual findings before the "Hard 50” sentence is imposed.

 

"The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said. "It is intended to remove the most dangerous and violent killers from society for at least 50 years. The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans. I am confident the legislature can and will act quickly, with resolve and narrow focus, to protect our citizens by restoring to prosecutors the immediate ability to seek the ‘Hard 50’ sentence for the worst offenders.”

 

Broad bipartisan support exists among the leaders of this legislature that this special session is necessary and is in the best interests of public safety. Additionally, law enforcement and prosecutorial agencies across the state have urged the governor to adopt the attorney general’s recommendation.

 

"We must address this issue to protect all our citizens, but particularly out of concern for the victims of these crimes and their families,” Brownback said. "I agree with the attorney general’s opinion that we face an ‘extraordinary occasion’ sufficient to justify this office exercising its authority to call the Legislature into special session pursuant to Article 1, Section 5 of the Kansas Constitution.”

 

Due to the constitutional and statutory requirement that the state bring criminal defendants to trial in a speedy manner, time is of the essence. After consulting with Attorney General Schmidt and legislative leaders, it was agreed a special session during the first week of September is optimal timing. According to the law enforcement community, that time period effectively protects public safety while allowing the necessary time requested by the attorney general for adequate preparation and planning to ensure a quick, focused and orderly session. According to the attorney general, putting this issue off until next January will "virtually guarantee” an increase in "the number of convicted killers who will be eligible for parole after only 25 years instead of after 50 years.”

 

"It is my hope after talking to legislative leaders that the special session can be completed by the close of business on September 5,” said Brownback.

 

See also http://www.kshb.com/dpp/news/state/kansas/gov-sam-brownback-calls-september-special-session-to-rewrite-hard-50-criminal-sentencing-law.

 

The Kansas Legislative Research Staff has put together a list of all 22 Special Sessions and the topic covered by that session. See http://skyways.lib.ks.us/ksleg/KLRD/Publications/2013-Kansas_Legis_Special_Sessions.pdf.

Quick Take

In addition to the "Hard 50” discussion, rumors have been circulating about the possibility of debating a repeal of the death penalty and the confirmation of the 14th Kansas Court of Appeals judge. Gov. Brownback has not appointed anyone but that could be accomplished prior to the September 3 Special Session.
We could also see additional abortion-related legislation. See http://www.shawneedispatch.com/news/2013/jul/29/kansas-abortion-group-sees-opportunity-special-ses/.

KBA Legislative Meeting

Coincidentally, the Kansas Bar Association is scheduled to hold its legislative meeting on Friday, August 30 at the KBA offices in Topeka. This meeting will cover the issues discussed in the 2013 session, the possible Special Session topics and a look forward to 2014.

 

If you are a KBA member you may get updates on committee activity on our website at http://www.ksbar.org/members/group.asp?id=111712.

Tags:  Alleyne  Brownback  Hard 50  legislative  legislature  Supreme Court 

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