KBA 4-5-6 Plan
The Kansas Bar Association supports the present system; it works well to select our best and our brightest. Recently, the U.S. Chamber of Commerce ranked Kansas as the fifth best state in the nation for the legal-business climate of its state courts. Four of the five top states used a form of merit selection. Kansas also ranked in the top 10 for judicial impartiality and competence.
The leading criticism of our current system is that the majority of commission members are attorneys selected by attorneys who are not effectively accountable to the public. However, merit selection works well; merit selection will work well independent of the selection process. As a result, at the urging of its membership, the KBA addressed judicial selection and adopted the following resolution at its December 7, 2012, meeting of the Board of Governors:
RESOLVED, that the Kansas Bar Association supports the merit selection system for appellate judges and justices, independent of how merit panel members are selected. The present application, interview, questioning and selection process provides the best available information to identify and select the most qualified appellate judges and justices, independent of political considerations.
Rather than simply recite the previously-referenced statement and/or express general opposition to non-merit selection proposals to amend the appellate selection process, the KBA felt it appropriate to offer specific changes within the merit system process that could be considered alongside other proposals and has requested introduction of what we refer to as the 4-5-6 Plan for Appellate Selection.
In summary, the KBA proposal for amending the Kansas Supreme Court Nominating Commission is as follows:
- Four attorneys elected by registered attorneys within each of the state’s four congressional districts;
- Five members selected by the Governor; one each from the state’s four congressional districts and a fifth member to serve as the non-voting chair; and
- Six (non-legislator) members selected by House and Senate Leadership as follows:
- Two selected by the President of the Senate;
- Two selected by the Speaker of the House;
- One selected by the Senate Minority Leader; and
- One selected by the House Minority Leader.
This 4-5-6 Plan proposed by the KBA would protect judicial independence, while opening appointments to a remarkably democratic process, one which the governor, the House, the Senate and the voters (through retention elections) all would participate.
The three best judicial nominees as determined by the commission would be submitted to the governor for selection. The governor and the Legislative leaders could appoint attorneys or non-attorneys as they deem appropriate; no commission members could be members of the Kansas legislature or executive branch; and, the members would serve staggered three-year terms.
The benefits of a merit selection system are many and we believe far outweigh any of the attributes of a Federal model or direct elections.
Most important, a merit selection process is open for all Kansas attorneys to apply to the appellate bench, not just those who might be selected by our state’s chief executive. Every applicant’s credentials and experience are reviewed by the panel and those best qualified are interviewed. Kansas courts will greatly benefit from access to the best and brightest of our attorneys and lower court judges. Each applicant will have their credentials vetted by an impartial nominating commission charged with forwarding the three best candidates to the governor for consideration, rather than the kind of a system that would be created under SCR 1601 and SB 8 that would arguably set minimum standards for nomination to our appellate courts and most certainly limit the number of attorneys given consideration for an appellate court position. APPROVED BY THE KANSAS BAR ASSOCIATION
Family Law Proposals
Uniform Interstate Family Support Act of 2008
The committee first discussed the Uniform Interstate Family Support Act of 2008 (UIFSA). UIFSA limits the jurisdiction that can properly establish and modify child support orders and addresses the enforcement of child support obligations within the United States. The Act also provides various direct interstate enforcement mechanisms. For example, it allows a caretaker parent to have an order mailed to the employer of the obligated parent, which will require that employer to withhold pay for the benefit of the child. Furthermore, it allows the caretaker parent to have an order mailed to an out-of-state court to get the other state to enforce the order. The committee voted to recommend the Board of Governors support UIFSA in 2012. PENDING FINAL APPROVAL
Case Management Amendments
The KBA Family Law Section created a sub-committee to propose changes to the Kansas Case Management statutes, KSA 23-3507-KSA 23-3509. The committee consists of Dennis Depew, Ron Nelson, Tish Morrical, Larry Rute, Bud Dale and Trip Shawer. The subcommittee also discussed this proposal with Art Thompson from OJA. The committee modernized the statutes by using similar language from Oklahoma. The Family Law Section, along with the KBA Legislative Committee, recommends that the KBA introduce this proposal in 2013. PENDING FINAL APPROVAL
Proposal to Change KSA 23-3005 to insert language to the effect that, "Installments of temporary support do not become a final judgment on their due date. They are subject to review and modification by the district court and do not automatically become a final judgment." (this is to "correct" the decision made by the Kansas Supreme Court in 103,758, In re Marriage of Brown, which opines that the legislature has, over the past 30 years, removed a trial court's ability to vacate or modify temporary support orders—and, perhaps, any kind of temporary orders—at the final evidentiary hearing. The Family Law Section recommends that the KBA introduce this proposal in 2013. PENDING FINAL APPROVAL
Real Estate Probate and Trust Proposals
The Kansas Judicial Council Probate Advisory Committee recommendations this proposal will automatically revoke and ex-spouses inheritance rights upon divorce. This proposal would create a new section. This proposal passed the Kansas Senate 39-0 in 2012 but failed to move forward in the Kansas House. The Real Estate Probate and Trust Law Section recommends that the KBA support this proposal in 2013. APPROVED BY EXECUTIVE COMMITTEE
This proposal will remove the spousal gift exemption to marital property. This proposal would amend KSA 23-2601 by deleting the exemption for gifts received by a spouse. This amendment would clarify that a spouse’s creditors cannot reach assets given to the other spouse in circumstances where no fraud to creditors in involved. This statute was originally known as the "Married Women’s Property Act” and reversed the common law rule that husbands controlled the wife’s property. The KBA supported this bill in 2012 and it passed the Kansas Senate 29-0 but failed to move out of the Kansas House. The Real Estate Probate and Trust Law Section recommends that the KBA support this proposal in 2013. APPROVED BY EXECUTIVE COMMITTEE
Business Association Proposals
Amending the Kansas Revised Limited Liability Company Act
The Kansas Bar Association Legislative Committee organized a subcommittee to revise the Kansas Revised Limited Liability Act (KRLLCA). The subcommittee, comprised of Bill Quick, Prof. Webb Hecker, Bill Matthews, Joe Jarvis, Joe McLean and Ryan Kriegshauser, has worked with the Kansas Secretary of State’s Office to determine which statutes dealt need to be updated to conform to the Delaware code. The subcommittee has also identified specific statutes that required revision due to recent case law. APPROVED BY EXECUTIVE COMMITTEE