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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  COVID-19  legislature  budget  2020 Legislative Session  election  Kansas Supreme Court  Brownback  Supreme Court  Court of Appeals  Judicial Branch  Medicaid expansion  school finance  Special Session  abortion  Emergency Management Act  Fall Legislative Conference  Gannon  Hard 50  merit selection  Sine Die  2016 Session  2017 session  2017-18  Alleyne  First Adjournment  judicial branch budget  judicial selection 

TURNAROUND Deuxieme Partie

Posted By Joseph N. Molina III, Monday, March 2, 2020

The Kansas Legislature reached the halfway mark of the 2020 session, commonly referred to as Turnaround. This is a deadline that requires all bills to be passed out of their House of Origin or fall by the wayside. As with all rules there are expectations and the Turnaround deadline is no different. To survive this deadline a bill must be referred to an exempt committee. Exempt committees include: House Appropriations, Senate Ways & Means, Tax along with Federal & State Affairs. The chamber would have to make the procedural maneuver prior to the deadline. Once the bill is referred, it is considered “blessed,” and it moves forward in the legislative unaffected by the Turnaround deadline. Another way to get around the deadline is to introduce a bill into any exempt committee; bill introductions are not closed to these committees. At present, both the House and Senate are on a short break. They return to take up the second half of the session today, March 3rd.

The big news remains the impasse created by the failed vote on the abortion amendment. As you recall, the Kansas House voted down SCR 1613 on a vote of 80-43—four votes short of the constitutional amendment requirement. In response, Senate President Susan Wagle has rejected attempts to vote on Medicaid Expansion. Sen. Wagle has stated that Medicaid Expansion will not be voted on until the House passes the Abortion Amendment. Neither measure will die due to the Turnaround Deadline but passage of either will be a challenge.

The filibuster of Medicaid Expansion is just one of the issues on Gov. Kelly’s agenda that is being held up by the Legislature. This past week, House Appropriations voted against re-amortizing KPERS. The committee proposed making its KPERS payments for the next fiscal year without refinancing that amount first. The committee believes that refinancing KPERS could happen, just not yet.

In addition, Gov. Kelly’s attempts to reorganize state government has also been delayed. The Legislature has not approved the proposed merger of DCF and KDADS to create the Department of Human Services; members have not transferred state employee health benefits plans to KDHE; and they have yet to create the Kansas energy office. Each item is on Gov. Kelly’s agenda.

CONTIGENCY FEE BILLS

As of this writing, none of the bills dealing with contingency fees and legal representation have been blessed by the Senate. This means they are all dead for the session unless they are re-introduced into an exempt committee. Whether that occurs remains to be seen.

As a reminder these bills include:

SB 444

Public Litigation Coordination act to restrict certain contracts by public entities for legal services on a contingency fee basis

SB 445

Defining and prohibiting certain deceptive lawsuit advertising practices and restricting the use or disclosure of protected health information to solicit individuals for legal services.

SB 446

Enacting limitations on contingency fee agreements in certain civil actions

SB 447

Providing for joint liability for costs and sanctions in third-party funded litigation, requiring certain discovery disclosures and requiring payment of certain costs for nonparty subpoenas.

 

With the Senate bills facing a hard deadline, the Kansas Attorney General is using the amendment process to move his issue forward in the House. Earlier this session, the KSAG introduced HB 2461, the Public Litigation Coordination Act. That bill banned contingency fee contracts entered into by public entities. The KBA opposed the bill. The KSAG has been working with local municipalities on an alternative, in the form of SB 444. The amendment process was started when HB 2461 was referred to an exempt committee, shielding it from the Turnaround deadline. The plan is return the measure to the House Judiciary Committee and replace it with language from SB 444—a procedure commonly referred to as a “gut & go.” The committee will then hold a hearing on the new language. The issue relates to the possible lawsuit against e-cigarette companies See; https://apnews.com/bc0ebafd2c6604e2ac26c6ee219c35b4

JUDICIAL BRANCH BUDGET

Chief justice Marla Luckert and several other OJA employees testified last week about the need for an additional $18.3 million to fund raises for staff and judges and to add a few more judges to cover high filing areas. The General Government Budget Committee approved this request and sent a positive recommendation for the full amount to House Appropriations committee. Last session, the committee recommended the funds be added over three and five years. That full recommendation is a positive step. House appropriations may very well pass a plan that calls for a phasing-in of the funds, but as it currently exists, the recommendation is for the full request of $18.3 million in one lump sum.

REPORTING ITEMS

Quorum Requirements for certain CorporationsHB 2401 was introduced by Rep. Boog Highberger (D-Lawrence) to assist the Merc Co-Op in amending its corporate charter. The bill lowers the quorum requirement to 10 percent, which would require fewer voting members be present to change its by-laws. The KBA’s Corporate Law Section, led by Bill Matthews and Bill Quick, are concerned that this sets a dangerous precedent and would like to work out a non-legislative alternative. The bill has been removed from the Committee-of-the-Whole and referred to the House Judiciary Committee. Chairman Patton has set the matter for hearing on Wednesday, March 4th.

Audio-Visual Use in CourtroomsHB 2447 was introduced by the Kansas Judicial Council to expand the use of audio/visual technology in courtrooms. The bill passed the Committee-of-the-Whole on an 83-39 vote. It was referred to the Senate Judiciary Committee. The KBA supports the bill.

Public Litigation Coordination ActHB 2461 was introduced by the KSAG office to require public entities to get approval before entering into contingency fee contracts. The KSAG would have sole discretion in approving these requests. The bill has been referred to House Appropriations and will survive the deadline.

Uniform Power of Attorney ActHB 2500 was introduced by the Kansas Judicial Council. The bill provides a new power of attorney form and requires, in certain instances, that third party entities accept this form or a form that is substantially compliant with the judicial council form. The bill was amended to include language that allows third party entities to deny PoAs if relying on the opinion of counsel. The bill was passed by the Committee-of-the-Whole on a 122-0 vote. It was referred to the Senate Judiciary Committee. The KBA will continue to monitor the bill.

Uniform Family Law Arbitration ActHB 2533 was introduced by the KBA with Prof. Lind Elrod speaking on behalf of the BAR. The bill allows arbitration to be used in certain family law setting such as divorce actions. Family Law Arbitration is voluntary. The House Judiciary Committee recommended HB 2533 favorably for passage this week. Hb 2533 did not receive a vote by the committee of the whole. Leadership was afraid that Rep. Ward would attempt to amend the bill to include teacher due process. This caused the bill to fall below the line. This bill is subject to the Turnaround deadline and—without further intervention—will be stricken from the calendar post Feb 27th.

Allowing Legislators to Remain in a Closed courtroomHB 2591 was introduced by Rep. Michael Capps (R-Wichita). The bill would allow legislators of either chamber to observe the proceedings in a closed courtroom. I have reached out to Rep. Capps but have not received a reply. Rep. Capps works on CINC cases which could be the reason for his interest. Nevertheless, this bill impinges on a judge’s authority over his courtroom.

This bill is subject to the Turnaround deadline, and without further intervention, will be stricken from the calendar post Feb 27th.

Contract for DeedHB 2600 was introduced by Rep. Jason Probst (D-Hutchinson) to resolve issues his constituents have had with the sale of real estate via contract for deeds. Rep. Probst had a similar proposal last session which he did not file. The KBA opposed this bill in committee. The committee has referred this bill to the Kansas Judicial Council for further review.

Original Jurisdiction Over Medical Malpractice  – HB 2673 was introduced by Rep. Fred Patton (R-Topeka) on behalf of Speaker Pro Tem Blaine Finch (R-Ottawa). The bill would give the Kansas Supreme Court original jurisdiction over medical malpractice cases with a claim of noneconomic loss. This bill survives the Turnaround deadline since it was introduced into the Appropriations Committee. It has since been referred to the Committee on Judiciary. No hearings have been set for this bill.

Withdrawal of Court of Appeal NomineeSB 403 was introduced by Sen. Eric Rucker (R-Topeka) to clarify when a nominee for the Kansas Court of Appeals may withdraw from consideration. The proposed language states:

     (2) The governor may withdraw an appointment from consideration by the senate at any time before the senate consents to such appointment by serving written notice of such withdrawal on the secretary of the senate in accordance with K.S.A. 60-303, and amendments thereto.

This bill is subject to the Turnaround deadline, and without further intervention, will be stricken from the calendar post Feb 27th.

Terminating Parent Rights SB 404 was introduced by the Kansas Judicial Council to create a cause of action to terminate parental rights when the child is conceived as a result of a sexual assault. The bill passed 40-0.

Corporate Code Clean-upSB 424 was introduced by the Kansas Secretary of State’s office to clean up the code after several laws passed in 2019. It would allow the KS SOS to use new technology in business filings. The KBA was able to beat back an amendment which would have added d/b/a and fictitious names to business filings which would have conflicted with federal and state trademark laws. The amendment version of SB 424 passed the Senate

NEW BILLS

Bench Warrants for Medical Debts – SB 477 was introduced into the House Federal and State Affairs Committee. It would prohibit a judge from issuing a bench warrant for failure to appear for medical debts. The proposed language includes:

(2)    The court shall not issue a bench warrant for the arrest of a judgment debtor for any act or failure to act that arises out of or relates to a judgment for medical debt.

This bill is in response to media coverage from SE Kansas relating to a judge issuing a bench warrant for a person who missed a hearing-in aid. See; https://features.propublica.org/medical-debt/when-medical-debt-collectors-decide-who-gets-arrested-coffeyville-kansas/ See also: https://www.cbsnews.com/news/coffeyville-kansas-medical-debt-county-in-rural-kansas-is-jailing-people-over-unpaid-medical-debt/

The collection bar has mobilized, and the issue is being discussed on various legal list serves. An initial reading reveals this language impinges on the judge’s authority and makes court orders in this instance optional. The bill has not been set for a hearing, but we should be prepared.

Changing the Process for Collection of Court DebtsHB 2719 would allow court trustees to collect debts owed to the court and require a fee to be paid to the court trustee. The proposed language states:

(e) The court trustee may require a fee to be paid to or retained by the court trustee for the cost of collection of debts owed to courts in the trustee's judicial district. Such fee shall be designated as the cost of collection and shall not exceed 33% of the amount collected. The cost of collection shall be paid from the amount collected but shall not be deducted from the debts owed to courts or restitution.

The bill survived the Turnaround deadline as it was introduced in the Committee on Federal and state Affairs..

 

Tags:  2020 Turnaround deadline  abortion  Author: Joseph N. Molina III  contingency fee bills  judicial branch budget  KBA-followed measures  KPERS amortization  medicaid expansion  medical debt  reorganization 

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Abortion Amendment Takes Center Stage

Posted By Joseph N. Molina III, Tuesday, February 4, 2020

This week the Kansas Senate approved a constitutional amendment on abortion; Gov. Laura Kelly created a nominating commission for Kansas Court of Appeals openings, and the KBA testified on two bills.

Last Wednesday evening, the Kansas Senate approved SCR 1613 which allows the legislature to make laws concerning abortion. This amendment would be placed on the August primary ballot. The final tally was 28-12 to approve. SCR 1613 was amended once to make the August primary a “special election”. This change was to fix a technicality which required all constitutional amendments to be placed on a special or general election. The August primary did not qualify, thus the need to amend the resolution. The resolution now heads to the House which is dealing with its own constitutional amendment on abortion. The House debate should come next week. Passage in the House will be more difficult, with 84 votes needed to approve. See; https://www.cjonline.com/news/20200129/kansas-senate-passes-constitutional-amendment-on-abortion; See also; https://www.kansas.com/news/politics-government/article239732848.html

Last Tuesday, Gov. Kelly issued an Executive Order to create a nominating commission for the Kansas Court of Appeals. The commission will operate much as does the Supreme Court Nominating Commission. It will have 9 members, with 5 lawyers and 4 nonlawyers. Gov. Kelly will appoint all members to the commission including two from each congressional district and one chair. Linda Parks will be the Chair.

The KBA testified on two bills this week:

SB 269 – Increasing the retirement age for District Court Judges from 75-80 yrs. of age

The KBA joined Sen. Vic Miller and District Judge Norbet Marek in supporting the bill. The bill would allow a judge to serve to the age of 80. Currently a judge must retire upon reaching 75, unless their term of service extends past the age of 75. In that situation, the judge may serve till the end of their term. SB 269 would mandate a judge retire at age 80. Sen. Pyle (R-Hiawatha) had concerns that centered on the judicial selection process. He floated a term limit on judges but did not make that proposal official. The Senate Judiciary committee should work the bill in the coming weeks.

HB 2461 – Public Litigation Coordination Act

The KBA, KTLA, Kansas Counties, the League of Municipalities, Kansas School Board Association and seven other individual associations opposed HB 2461. This bill would prohibit public entities from entering contingency fee contracts without the written approval from the Kansas Attorney General. The purpose of the bill is to allow the state the opportunity to coordinate litigation of large public health issue, specifically opioids and vaping. The KSAG is willing to negotiate the specifics of the bill to carve out legal services that are not the intended target of the legislation and narrow the scope to satisfy local government issues, but the underlining policy of contingency fee contracts remains an issue. We will work with the committee on any amendments.

The KBA is monitoring several other bills including:

HB 2401 – LLC Quorum requirements

Rep. Boog Highberger (D-Lawrence) proposed a bill that would lower the quorum requirements for certain corporations to 10 percent. This bill is designed to assist the Merc Co-Op in Lawrence, Kansas, increase its corporate stock number. The Merc Co-Op would like to raise additional capital, but its corporate structure requires a vote by shareholders. The Merc board has attempted to hold an annual meeting to make these changes but has been unable to attain a quorum; so Rep. Highberger offered HB 2401. Our Corporate Law Section has concerns that this will negatively impact corporate law in Kansas.  The section objects to legislation designed for a single entity and believes that non-legislative solutions are available to the Merc. The KBA will work with Rep. Highberger on the bill as it progresses.

HB 2500 – Uniform Power of Attorney Act

The bill is sponsored by the Kansas Judicial Council. The council proposed a similar bill two years ago which was roundly criticized and eventually withdrawn from consideration. The goal of the legislation is to require third parties to accept durable Power of Attorneys. The KBA Title Standard Committee is closely monitoring this bill.

Next week, the KBA will be involved in at least two bills:

SB 334 – Amendments to authentication of records and documents

The Kansas Judicial Council is attempting to amend the “Best Evidence Rule” in Kansas. SB 334 would modernize our authentication of document rules to better conform to the federal rule of evidence. Dean Jim Concannon is testifying in support of the bill and on behalf of the Kansas Judicial Council.

HB 2553 – Uniform Family Law Arbitration Act

The KBA approved the Uniform Family Law Arbitration Act at our December meeting. This bill has been introduced, and a hearing is set for Wednesday, February 5th in House Judiciary.  Prof. Linda Elrod will testify on the bill, and Larry Rute has submitted testimony on behalf of the KBA.

Tags:  2020 Legislative Session  abortion  Author: Joseph N. Molina III  HB 2401  HB 2461  HB 2500  HB 2553  LLC Quorum requirements  nominating commission for Court of Appeals  Public Litigation Coordination Act  SB 269 raising judges' retirement age to 80  SB 334  SCR 1613 

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A Hectic Ten Days

Posted By Joseph N. Molina III, Tuesday, September 24, 2019

The KBA will be busy the next week and a half. We will first welcome our newest attorneys to the practice of law this Friday, September 27th.  Over 80 new lawyers will be sworn-in during two separate ceremonies at the Kansas Supreme Court. Among the new admittees is former KBA staffer Jennifer Salva. See; http://kscourts.org/Kansas-Courts/General-Information/2019-News-Releases/092019.pdf

The KBA will then testify on judicial selection issues during the Special Committee on Judiciary on Oct. 1-2, 2019. The Judiciary Interim Committee will also cover Hodes Nauser, MDs. P.A. vs Schmidt (abortion case) and Hilburn v. Enerpipe Ltd. (noneconomic damages case). See; http://www.kslegislature.org/li/documents/interim_schedule.pdf; for a list of committee members: http://www.kslegislature.org/li/b2019_20/committees/ctte_spc_2019_judiciary_1/

On October 2nd the KBA will host its Trivia Night Fundraiser for Kansas Legal Services (KLS). The event will pit Washburn Law School against KU Law School in a battle of wits. The trivia contest will take place at the Historic Harley-Davidson. If you’re interested you can find more information here - https://www.ksbar.org/event/LawSchoolTrivia2019

The KBA will also attend the Wichita Bar Association’s Judges’ Day on October 3rd. WBA Judge’s Day will include a Golf Tournament, Tennis/Pickle Ball matches, a Bike Ride, an event at the Wichita Brewery and a BBQ at the Botanical Gardens. See; https://www.wichitabar.org/page/UpcomingEvents

The KBA will then meet with its Board of Governors on Friday October 4th at the WBA.

Finally, the 10-day run will end with the Investiture Ceremony for Rachel L. Pickering. Judge Pickering will be officially sworn-in at 3:00 p.m. on Friday, October 4th at the Shawnee county Courthouse.

Tags:  abortion  Author: Joseph N. Molina III  Fall new admittees  Hilburn v. Enerpipe Ltd.  judicial selection  KBA Trivia Night  non-economic damages 

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20 Weeks Until the 2020 Session

Posted By Joseph N. Molina III, Tuesday, August 27, 2019
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The 2020 Session is approaching quickly. Summer break has ended, and Kansas lawmakers are attending Interim Committees. These committees will focus on a variety of issues such as criminal justice reform, retail electrical rates, and KanCare Oversight. However, bigger issues are on the horizon.

The legislature will look at several proposals in 2020 that may end up on the election ballot.

Merit Selection will be debated in 2020 ,with its opponents hoping to get a constitutional amendment on the ballot. There is currently a proposal in the Kansas Senate, SCR 1610, that would change Article 3 from a merit selection process to a governor appoint/senate confirm model. This is the process used for the Kansas Court of Appeals—the same process used this past session by Gov. Kelly that has renewed the debate on judicial selection. While SCR 1610 is on the table, it may not end up being the proposal championed by opponents of merit selection. The Kansas Legislature will hold interim committee meetings this fall to get the ball rolling. The KBA has a long-standing policy supporting merit selection for Kansas Appellate Courts.

Also, look for a debate on abortion in 2020.  The Kansas Supreme Court ruled this past April that the Kansas Constitution protects a women’s right to an abortion. In a 6-1 ruling the court held that the constitution protects all Kansans’ natural right to personal autonomy. This ruling has re-invigorated anti-abortion groups who would like to see this outcome changed at the polls through a constitutional amendment. See; https://www.cnn.com/2019/04/26/politics/kansas-supreme-court-abortion-ruling/index.html; See also; https://www.kansas.com/news/politics-government/article229693509.html

We may also see a debate on whether the legislature may impose limits on the amount of money a person can receive for non-economic injuries. This debate is also spurred by a Kansas Supreme Court ruling in the past year. The ruling, Hilburn v. Enerpipe Ltd, dealt with a car accident. The Court found that the state’s non-economic damages cap of $325,000 violated the plaintiff’s right to have a jury determine compensation owed the injured. See; https://www.kansascity.com/news/state/kansas/article231561483.html

Supporters of a statutory cap would also like to see the constitution changed to allow the legislature to limit the amounts recovered for non-economic injury.

These are very large issues to tackle in an election year. They are wide ranging, with a multitude of interested parties—sometimes overlapping interest groups—that will require significant study over a relatively short period of time. How many amendments make it to the ballot remains to be seen, but it it sets the stage for an interesting 90 days in 2020.

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Tags:  2020 Legislative Session  abortion  Author: Joseph N. Molina III  Hilburn v. Enerpipe  merit selection  noneconomic damages  noneconomic injury cap  SCR 1610 

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