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.
Kansans rely on the Kansas court system for fairness and justice under the rule of law. Because judges are the gatekeepers of the court system, it is imperative that judges exhibit certain qualifications, including:
• Integrity: A judge should be honest and committed to the rule of law.
• Professional Competence: A judge should have extensive legal knowledge.
• Judicial Temperament: A judge should be neutral, respectful and composed.
• Experience: A judge should have a strong record of excellence in the law.
• Commitment to Service: A judge should be committed to all aspects of the administration of justice.
In Kansas, openings on the Supreme Court are filled using the merit selection process. Under this process, established in the Kansas Constitution in 1958, when a vacancy is open on the Kansas Supreme Court, the nonpartisan Kansas Supreme Court Nominating Commission reviews applications, conducts public interviews and submits a list of three qualified candidates to the governor. The governor chooses one of the three to appoint to the open judicial seat. The governor has 60 days to select a candidate from those three nominees.
To be considered as a candidate for judicial office, an applicant must be a licensed attorney in Kansas over the age of 30, and must have been active as a lawyer, judge or teacher of law at an accredited law school for at least ten years.
The Supreme Court Nominating Commission has nine members—one lawyer and one non-lawyer from each of the state’s four congressional districts, plus an additional lawyer who serves as the commission’s chair. Lawyer members are elected by their peers (active Kansas attorneys), and non-lawyer members are appointed by the governor. To clarify, the Kansas Bar Association is not involved in the Supreme Court Nominating Commission. The KBA does not appoint any lawyer members to this commission. The members of the commission come from diverse backgrounds.
The 14 judges of the Kansas Court of Appeals are, like the Supreme Court justices, appointed by the governor. However, instead of choosing from a slate of candidates recommended by a nominating commission, the governor is free to nominate anyone—as long as the nominee is a licensed attorney in Kansas between the ages of 30 and 70, and has been active as a lawyer, judge or law professor for at least ten years at an accredited law school. The governor’s nominee is then subject to confirmation by the Kansas Senate (K.S.A. 20-3020 et. seq.).
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.
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.
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 this week, and they were greeted
with a school finance ruling, hearings on merit selection of appellate
judges, and 18 other prefilled bills. The most discussed issue is the
school finance ruling that ordered the legislature to fund school base
aid at a much higher level. See http://www.shawneecourt.org/CivicAlerts.aspx?AID=21.
school finance ruling will have a definite impact on the state budget
but the ripple effects are sure influences other issues, i.e., merit
selection. The Senate and House judiciary committees have already
scheduled hearings to discuss changes to the current merit selection
method. The Senate has even pre-filled a concurrent resolution to amend
the Kansas Constitution (SCR 1601) and another bill (SB 8)
to create the Judicial Qualification Commission as an alternative to
the Supreme Court Nominating Commission. Hearings are scheduled as
Senate Judiciary Committee Wednesday, January 16 – Thursday, January 17 State Capitol, Rm. 346-S (Old Supreme Court Room) 10:30 a.m. – Noon
House Judiciary Committee Wednesday, January 16 – Thursday, January 17 State Capitol, Rm. 112-N 3:30 p.m.
Attorneys practicing in the business entity field should pay attention the following:
SB 5 and HB 2010,
dealing with business entities restricting use of acquired entity’s
name. Both of these bills contain the same language. The KBA is
monitoring this issue.
Criminal attorneys may wish to review the following bill:
SB 4 and HB 2008
both concern the statute of limitations for certain sexually violent
offenses. These bills would expand the time limit for sexually violent
offenses committed against a person under the age of 18.