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.
Last week the KS Legislature was busy rejecting Governor Kelly’s attempts to reorganize some state agencies, dealing with sports wagering, hearing sexual abuse litigation proposals and discussing anti-vaxx legislation. However, all this activity did not result in any legislation passing either chamber. I guess John Wooden’s comment stands: “Never confuse activity with accomplishment.”
For the KBA’s part it was a busy week in committee. There are several new proposals that need Your attention.
Contingency Fee Proposal – SB 446 comes from the Kansas Chamber. It was circulated to the BOG and two ALERTS were emailed to KBA membership. The proposal creates a strict fee schedule for anyone entering a contingency fee contract for legal services resulting from personal injury, wrongful death or damage to property. The proposal provides:
(c), in any contingency fee agreement described in subsection (a), such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the net amount recovered as follows: (1) 331 /3% of the first $300,000; (2) 25% of the next $300,000; (3) 20% of the next $300,000; (4) 15% of the next $300,000; and (5) 10% of any amount that exceeds $1,200,000.
No hearing has been scheduled for HB 446.
Legal Advertising Proposal – SB 445 is also a product of the Kansas Chamber. It too was circulated to the BOG and email ALERTS sent to KBA members. The proposal attempts to limit the types of legal advertising that can be aired in Kansas. It affects all forms of communications. No hearing has been scheduled for HB 445.
Withdrawal of Court of Appeal Nominee – SB 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.
The bill also strikes out several provisions that set out the time period in which the governor and sent must act. As drafted the bill sets no time period for the Senate to act on a Court of Appeal nomination.
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.
Allowing Legislators to remain in a closed courtroom – HB 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. This bill infringes on a judge’s authority over his courtroom. The KBA has previously OPPOSED such measures.
Contract for Deed – HB 2600 was introduced by Rep. Jason Probst (D-Hutchinson) to resolve issues his constituents are having with the sale of real estate via contract for deed. Rep. Probst had a similar proposal last session which he did not file. HB 2600 has a hearing on Wednesday, February 19th at 9am in House Local Government.
Quorum Requirements for certain Corporation – HB 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% which would allow fewer voting members be present to change its By-Laws. Our 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.
Audio-Visual use in Courtrooms – HB 2447 was introduced by the Kansas Judicial Council to expand the use of audio/visual technology in courtrooms. The bill passed the House Judiciary Committee this week but did draw a few amendments including the right of a parent to testify via teleconference in CINC cases. The bill now heads to the House floor.
Public Litigation Coordination Act – HB 2461 was introduced by the KSAG office to require public entities get approval before entering into contingency fee contracts. The KSAG would have sole discretion in approving these requests. The KBA opposed this bill along with the League of Kansas Municipalities, Kansas Association of Counties, Kansas Collection Agencies and the Trial Lawyers Association. The bill is being negotiated with new language being introduced in the Kansas Senate.
Uniform Power of Attorney Act – HB 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 PoA’s if relied upon the opinion of counsel. The bill now heads to the House floor.
Uniform Family Law Arbitration Act – HB 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 now heads to the House floor.
The KBA will be involved in the following hearings:
Terminating Parent Rights – SB 404 was introduced by the KS Judicial Council to create a cause of action to terminate the parental rights when the child is conceived as a result of a sexual assault. The KBa Family Law Section is interested in this bill.
Code Clean-up – SB 424 was introduced by the Ks Secretary of State’s office to clean-up the code after several laws pass in 2019. This will allow the KS SOS to use new technology in business filings. It does postpone the enactment of several laws so the proper technology can be place.
Judicial Branch Budget – The House General Government Budget subcommittee will meet on Wednesday, February 19th at 3:30pm to discuss the Judicial Branch Budget. The KBA will submit testimony supporting the supplemental budget that seeks a raise for judges and staff.
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 KBA held its KBA Day at the Capitol on Tuesday, March 12th. KBA volunteers meet with 54 legislators. Our goal was to create support for judicial branch pay increases for judges and staff. The KBA helped set up meeting with legislators and provided materials for these meetings. Most of our volunteers met with freshman legislators. We focused on this group because we have not formally discussed judicial pay raises with them.
Our volunteers reported strong support for pay increase for staff and district judges but very limited support for raises for the Supreme Court. A tension still exists between some legislators and the Supreme Court. It was said more than once that raises for staff should be the priority.
The KBA Day at the Capitol was well timed since the House Appropriations and Senate Ways & Means Committee were discussing the Judicial Branch budget this week. House Appropriations keep the language in for raises in their version of the budget. The House version would see a 3-year implementation plan for staff with a 5-year plan for judges. Senate Ways & Means decided to pass the judicial branch budget expect for the raise portion. They will discuss the pay plan at omnibus.
I would like to thank our volunteers for sparing a day to advocate for the judicial branch. Pictures courtesy of Ryan Purcell, KBA staff.
Gov. Kelly nominates Hon. Jeffry Jack
The Kansas Bar Association congratulates Hon. Jeffry Jack on his nomination to the Kansas Court of Appeals. Judge Jack will be well-served by his 31 years of experience as a member of the Kansas Bar and his 13 years as a Labette County district court judge.
The KBA also commends Governor Kelly for increasing transparency, implementing a merit-selection process to choose the finalists for this important position.
KBA President Sarah Warner observed, “Kansans are well-served by a process that encourages people of Judge Jack’s intellect and background to serve on the state’s appellate courts. We heartily congratulate Judge Jack and urge the Kansas Senate to swiftly confirm his nomination so he may take his place on the Court of Appeals.”
Last Wednesday, the Judicial Branch budget was heard before the House General Government Budget Committee. The judicial budget includes pay increases totaling $20.8 million in FY18 and $20.9 million in FY19. Chief Justice Lawton Nuss led the charge by explaining the need for pay increases. CJ Nuss pointed out that all the efficiencies gained through e-filing and other cost saving measures were eroded away by new employee training costs and. In the past, the Judicial Branch kept open 80-110 full time positions but due to greater efficiency within the court system those open full time positions have been paired to 20. Unfortunately, those cost savings could not be fully realized due to extremely high employee turnover. For instance, in the Tenth Judicial District, 37 employees left for better paying jobs last year. The KBA was one of more than a dozen organizations to support the budget as submitted. The Senate Ways & Means Subcommittee on the Judiciary held a hearing on the judicial budget on yesterday. You can review the testimony here: JBB_GGB_20170125.pdf
The Judicial Branch bill, HB 2041 , to extend the surcharge fund also had a hearing on yesterday. This bill extends the surcharge for another two-year period. The surcharge is responsible for around 6% of the judicial budget. The KBA supports this bill.
The KBA has been monitoring several bills in House Judiciary include SB 10 prohibiting the filing of liens on certain public officials. This rather benign bill has a new section that reads - New Sec. 2 (a) It shall be unlawful for a person to present to a recorder of record for filing in any public record any lien or claim against the real or personal property of a public official, when such person knows or reasonable should know that such lien or claim is false, or contains any materially false, fictitious or fraudulent statements or representations.
This language criminalizes filing of certain liens. Members from the Kansas Land Title Association, many of whom are also members of the KBA Title Standards Committee, expressed concerns. The KBA is working with the KTLA and the KS Attorney General’s Office on new language
Four KBA proposals will have hearings next week. They include:
This week is off to a rather quick start as House Tax committee worked throughout the day to put together the first tax package to help close the revenue shortfall for FY 16 and FY 17. The legislature is attempting to close a $406.4 million hole in FY 16 and a $367.9 million hole in FY 17. Attached is a spreadsheet from the Kansas Legislative Research Department that breaks down the revenue vs. expenditures for the next two years.
Three are a number of ideas on the table; the most prominent is closing the passive-income loophole. Closing the loophole could raise revenue by $133 million. Also of note is a statewide sales tax increase to 6.5%. This would provide an additional $165 million. Combine these two tax increases with the Managed Care Organization privilege fee of around $60 million and you begin to get close to a zero balance. However, these are not easy pieces of legislation to pass. Many conservative republicans are not fond of raising any taxes. Some would rather cut our way out and leave income tax rates were they are currently. This first tax package will be tested very soon.
Last week the Kansas House approved their version of the judicial budget (HB 2365) as well as the uniform family support act (SB 105) and the Business Entity Standardization act (SB 276).
The judicial budget was approved 108-10. That is significant since this issue will need to be negotiated with the Senate version (HB 2005). The House version provides nearly $5 million more state general funds in FY 16 and almost $9 million more SGF in FY 17. The House understands this issue and with such a large majority voting in favor it will be hard to walk away from their higher funding level proposal.
SB 276 BEST Act is headed to the governor now that it has passed both chambers. As will SB 105, UIFSA.
An interesting side note is that the House approved a measure allowing for the use of hemp oil to treat seizures and gave authority for industrial hemp to be studied.
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.
Kansas legislators returned to work yesterday with a very light agenda for the week. Not much is scheduled except for a small number of new bills being introduced. It is important to remember that there will be no bill "carry-over” from last session. We are in a new cycle so bills will need to be reintroduced and work their way through the process.
Hallway talk centers on budget issues, possible tax increase on alcohol and tobacco, a possible raid of the tobacco settlement money to pay down the deficit, and a renewed effort to change merit selection. At this point these ideas are mere conjecture as we should know more when Gov. Brownback releases his two-year state budget.
The governor will make his proposals during the State of the State address this Thursday. We have seen the governor focus on morality issues and family unity concerns while addressing possible budget fixes. We could probably expect more of the same during the speech. However, the gorilla in the room remains the school finance formula and how that affects the state budget.
As far as committee meetings are concerned, the Senate Judiciary Committee will meet in Room 346-S at 10:30 a.m., Monday through Friday. Sen. Jeff King (R-Independence) continues as Senate Judiciary chair with Sen. Greg Smith (R-Overland Park) as vice chair. The House Judiciary Committee will meet in Room 112-N at 3:30 p.m., Monday through Thursday. Leadership for this committee has changed with a new chairman, Rep. John Barker (R-Abilene), a new vice chair, Rep. Charles Macheers (R-Shawnee), and Rep. John Carmichael will sit as ranking minority leader. For other committee meeting times and locations, please access http://www.kslegislature.org/li.
Chief Justice Lawton Nuss will give the State of the Judiciary address on Wednesday, January 21 at 2:30 p.m. The public can access a live webcast of the State of the Judiciary address by following the Watch Supreme Court Live! link in the right-hand column of the Kansas Judicial Branch website at http://www.kscourts.org. The address will be recorded for viewing afterward by anyone unable to attend in person or watch it live online.
For more information and bills new to the legislature please check http://www.ksbar.org. The KBA will be updating its bill tracking chart weekly with more information as the session moves along.
The 2014 legislative session reached First Adjournment on Friday, April 4 and continued working until Sunday, April 6 when a school finance plan was approved by the Kansas House. First Adjournment is the last official day of the regular session but legislators wanting to finalize the school finance issues it dragged on for the entire weekend. The importance of this date cannot be understated because bills not passed by both houses (exempt committees have some leeway) are dead for the session. This being an even numbered year also means they do not carry over and must be reintroduced as a new bill with a new bill number next year.
Once the dust settled, the Senate had the upper hand and passed their bill first. The House concurred to the Senate position that eliminated tenure for K-12 teachers. This is seen as a union busting measure and praised by a number of conservatives who championed teacher reform measures.
Provides an additional $109,265,000 for Supplemental General State Aid (Local Option Budget Equalization).
Transfer $25,200,786 to the Capital Outlay Fund from the state general fund.
Changes the definition of At-Risk Pupil to exclude those students in grades 1-12 who are not full time and those over 19 years of age. Provisions wouldn’t apply if a student had an individualized education program (IEP).
Establish the K-12 Student Performance and Efficiency Commission.
Alternative Teacher Licensure provisions.
Increase to 20 percent the number of Kansas schools that can participate as an Innovative School Districts.
Changes statutory Base State Aid Per Pupil to $3,838.
Eliminates due process rights for tenured public school teachers.
Corporate Education Tax Credit Scholarship Program, allowing companies to give $10,000 for scholarships for kids who come from families who make less than $43,000 a year or have a IEP.
In addition, both the House and Senate voted to approve the Conference Committee Report on HB 2338, which contains the judicial budget. The KBA was unsuccessful in removing the policy provisions that de-unified the court system.
Appropriates $2 million additional from the state general fund for FY 2015.
Increases existing docket fees and create statutory filing fees for appeals to the Court of Appeals or the Supreme Court.
Allows chief judge in a judicial district to elect to be responsible for submitting a budget for the judicial district to the chief justice of the Kansas Supreme Court.
District court judges in each judicial district would elect a district judge to serve as chief judge.
Requires the chief justice to provide notification of a vacancy in the office of district court judge or district magistrate court judge to the chairperson of the district judicial nominating commission not later than 120 days following the date of the vacancy.
Deletes requirement for the payment of longevity to Judicial Branch non-judicial staff.
The KBA was able to thwart an attempt by the Kansas Chamber of Commerce to alter the collateral source rule in Kansas. The bill, SB 311, increased the cap on non-economic damages to $350,000. The bill included two policy provisions; one adopted the Daubertexpert witness standard. The other allowed evidence of collateral source payments to be introduced to a jury. The KBA worked diligently with Kansas Association for Justice to remove the provision. The final agreed upon bill passed both chambers without collateral source.
The KBA received good news when both of its bills (HB 2398, dealing with LLCs, and HB 2444, dealing with spend thrift trusts) passed prior to First Adjournment and are now on their way to the governor for his signature. The KBA has requested a bill signing ceremony with the governor for HB 2398. This will be an excellent way to recognize the hard work of the LLC subcommittee (Bill Quick, Bill Matthew, Webb Hecker, and Joe Jarvis). I hope to have photos taken for the KBA Journal.
The 2013 Kansas Legislature is set to open on Monday, January 14. The
official opening will start at 2 p.m. with the swearing in of House and
Senate members. The big news will come out of January 15 when Gov.
Brownback addresses the Legislature to give his State of the State
address. The governor will most likely discuss the Kansas Budget
process, moving from an annual budgeting cycle to a biannual cycle. He
may also discuss the impact of the 2012 tax cuts, reauthorizing the 2009
1-cent sales tax, school funding, and merit selection.
After the governor has laid out his vision for 2013, legislators will
begin introducing legislation and holding hearings. To keep pace with
the fast paced Capitol issues, follow me on twitter (@KansasBarLeg) for the latest legislative updates. You can also keep tabs on legislative deadlines at http://bit.ly/2013SessionPlanner.