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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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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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Turnaround 2020

Posted By Joseph N. Molina III, Monday, February 24, 2020

This Thursday. February 27th,  the Kansas Legislature will hit its midway point, when bills not passed out of their House of Origin can no longer be passed into law. This day, commonly referred to as “Turnaround,” most of the bills introduced this session fall by the wayside. There are still procedural maneuvers that optimistic lawmakers can use to survive this deadline. They can introduce their bill into an exempt committee, (House Appropriations, Senate Ways & Means or either chamber’s Federal & State Committee, or they can have their bill “blessed” by leadership.) To be “blessed,” the bill must be referred to one of these exempt committees. The water cooler talk is that the Kansas Senate plans to take a bare bones approach to Turnaround and not bless as many bills as in past years.

The KBA had a productive Week 7. Last week, the KBA focused on four bills dealing with legal fees and legal advertising. These bills are:

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.

 

The KBA issued a Call to Action that urged KBA members to contact Senators to express their concerns with these bills. The Call to Action was emailed to 5854 individuals. Some 1624 individuals opened the email, with 204 taking additional action of reading the bill and searching for their Senator.

At present, these bills HAVE NOT been set for hearing. Furthermore, these bills HAVE NOT been referred to any exempt committee. Should these bills not be “blessed,” they will be stricken from the calendar. The only option then would be for the sponsors of the bills to re-introduce them into an exempt committee after the deadline. We have a week left, so it is still possible one of these options are used could be used to keep the bills active past the deadline.

With the Senate bills tied up, the Kansas Attorney General is using the amendment process to move his issue forward. The KS AG introduced HB 2461 in January. That bill banned contingency fee contracts entered by public entities. HB 2461 is titled the Public Litigation Coordination Act. The KBA opposed this bill and the bill languished. The KS AG will attempt to amend the bill in committee. They will use the language in SB 444. The KBA has expressed its opposition to the amendment.

Judicial Branch Budget

The General Government Budget committee held a hearing on the Judicial Branch Budget this week. Chief Justice Marla Luckert presented to the committee. The KBA submitted testimony in support of the supplemental request for $17.1 million to fund salary increases for judges and staff. The committee plans to work this budget this week. Raises will help with our national ranking which places Kansas near the bottom in every judicial salary category. See the latest Judicial Salary Chart - https://www.ncsc.org/salarytracker.

Other news

The House has passed HB 2447, audio/visual use in courtrooms. The final vote was 83-39. This bill goes to the Senate now.

House Judiciary approved HB 2533, family law arbitration act. The bill will be debate on the House floor next week.

House Judiciary approved HB 2713, revised Uniform Laws on Notarial Act. This bill will also be debated on the House Floor next week.

House Local Government has referred HB 2600, Contract for Deed proposal to the Kansas Judicial Council. The KBA opposed this bill and suggested that the referral be made to better study the issue.

Senate Commerce declined to add an amendment to SB 424, extending the effective date for certain LLC statutes until July 1, 2022. The amendment would have added fictitious name statutes to names that can be filed with the Secretary of State’s Office. The KBA opposed this amendment as it interferes with federal and state trademark laws. The amendment may return as a stand-alone bill.

This will be a long week at the Capitol. Look for daily updates via live tweeting @KansasBarLeg.

Tags:  Author: Joseph N. Molina III  contingency fee contracts  contract for deed  family law arbitration  judicial branch budget  Public Litigation Coordination Act  s  Turnaround Deadline  use of audio/visual in courtrooms  Weekly-2020-02-25 

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Hurry Up & Wait

Posted By Joseph N. Molina III, Tuesday, February 18, 2020

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 ProposalSB 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 ProposalSB 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 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.

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 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. This bill infringes on a judge’s authority over his courtroom. The KBA has previously OPPOSED such measures.

Contract for DeedHB 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 CorporationHB 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 CourtroomsHB 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 ActHB 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 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 PoA’s if relied upon the opinion of counsel. The bill now heads to the House floor.

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 now heads to the House floor.

Hearings

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-upSB 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.

Tags:  2019-2020  2020 Session  Author: Joseph N. Molina III  budget  judicial branch budget  terminating parent rights 

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