Summary of 2014 Judicial Conference Partial Bill - SB 231 Overview

2014 Judicial Conference Partial Bill Summary
Judge Daniel Dale Creitz, Chief Judge, 31st Judicial District And Judge James R. Fleetwood, Chief Judge, 18th Judicial District Co-Chairs KDJA Legislative Committee

SB 231 SB 231 - Concerning valuation and appeals; renaming the state court of tax appeals; timing of decisions.

SB 231 continued SB 231 makes a number of changes in the power duties, and functions of the State Court of Tax Appeals (COTA), especially with regard to property tax valuation appeals; renamed the State Board of Tax Appeals (BOTA); makes several changes with respect to how property may be valued for taxation purposes; and lowers the interest rate on delinquent property taxes.

SB 231 continued Changes in COTA/BOTA Procedures Aggrieved person has the right to appeal final orders of BOTA to the Kansas Court of Appeals or to a district court. Any appeal made to a district court is a de novo trial.

SB 231 continued All such appeals to the district courts are in which the property is located; or, if the property in question is located in multiple counties, the appellants have the option of choosing which district court would hear the appeal.

SB 231 continued Sec. 2 (g) of this 77 page bill declares it legislative intent that all “proceedings in front of BOTA be conducted in a fair and impartial manner, and that all taxpayers be entitled to a neutral interpretation” of state tax laws. BOTA is prohibited from deciding cases based upon “arguments concerning the shifting of tax burdens or upon revenue losses or gains.”

SB 231 continued Cases involving leased commercial and industrial property, taxpayers have the burden of proof unless they have furnished county appraisers with complete income and expense statements for the property, within 30 calendar days on forms regularly maintained by taxpayers in the course of business for three years prior to the appeal year in question.

SB 231 continued Relative to cases involving residential real estate and commercial and industrial real property, appraisals made by counties are required to be released through the discovery process to taxpayers or their representatives. An existing statutory requirement that a request for reconsideration of final COTA orders be filed before seeking judicial review was eliminated.

SB 231 continued Property Tax Valuation System Changes All appraisals are to be performed prospectively in accordance with these most current standards. After the estimated number of appeals was reduced OJA estimated that the bill would increase expenditures of the Judicial Branch by $1.0 million per year and would generate approximately $0.235 million per year in revenues from filing fees. No appropriation was added to cover the increase in expenditures.

SB 311 Increases the non-economic damages cap and changes rules related to expert evidence. This 3 page bill amends the Code of Civil Procedure with regard to caps on non-economic damages, witness and expert witness testimony, and repeals statutes allowing evidence of collateral source benefits.

SB 311 continued Sec. 2 amends K.S.A. 60-456 governing opinion testimony and adopts the federal “Daubert Standard” for expert witness testimony. Establishes a procedure for a pretrial hearing upon a motion of a party, to determine an expert witness’ qualifications and whether the new statutory (Daubert) standards are satisfied. The hearing and ruling are to be completed by the final pre-trial hearing.

SB 311 continued Repeals statutes allowing evidence of collateral source benefits to be admissible in actions for personal injury or death and providing for a procedure for determination of collateral benefits and reduction of judgment by such amount. These statutes were declared unconstitutional and void in Thompson v. KFB Ins. Co, 252 Kan. 1010, 1024 (1993).

SB 311 continued In response to Miller v. Johnson, 295 Kan. 636 (2012) amends the limits applied for the non-economic damages in personal injuries actions as follows: $250,000 for causes of action accruing from July 1, 1988 to July 1, 2014. $300,000 for causes of action accruing from July 1, 2014 to July 1, 2018. $325,000 for causes of action accruing from July 1, 2018 to July 1, 2022. $350,00 for causes of action accruing after July 1, 2022. Signed by the Governor April 17th, 2014.

HB 2446 Time limits for decisions Established time limits for decisions by district courts, the Court of Appeals, and the Supreme Court. District courts are required to issue a decision on a motion or non-jury trial within 120 days after the matter is submitted for decision; (SCR 166) Currently provides time limits of 30 days for civil motions, 60 days for summary judgment decisions and 90 days for all other civil decisions under advisement.

HB 2446 continued If a decision is not issued within this time, all counsel are required to, within 130 days of submission for a decision, file a joint request for the decision to be entered without further delay, with a copy of this request to be sent to the chief judge of the judicial district;

HB 2446 continued Within 30 days of this request, the district court is required to enter a decision or provide a date by which a decision will be entered, with a copy of the notice of such date sent to the chief judge of the judicial district; and,

HB 2446 continued If the district court fails to enter a decision or provide a date for decision within 30 days, all counsel are required to file a joint request with the chief judge to establish an intended decision date, and the chief judge is then required to establish such a date after consultation with the judge to whom the matter is assigned.

HB 2446 continued The Court of Appeals and the Supreme Court are required to issue a decision on a motion or an appeal within 180 days after the matter is submitted for decision (Sec. 4(b) and (c)); If the decision is not issued within this time, all counsel are required to, within 190 days of submission for decision, file a joint request for the decision to be entered without further delay, with a copy of the request to be sent to the chief judge or the chief justice; and,

HB 2446 continued The same time line and process for issuing a decision or setting a decision date as established for district court case is then followed, with the chief judge or chief justice ultimately setting a final intended decision date after consultation with the other judges and justices. Any writing required by the bill must be made available to the public.

HB 2446 continued The bill defines when, for purposes of time limits, the case is “submitted for decision.” Sec. 4(d). Contains technical date revisions to HB 2303, the 2% under market pay increase for our employees. Allows the district judge of a judicial district where the court trustee no longer is utilized to authorize expenditures from the Court Trustee Operations Fund for district court operations. The bill arose from Wabaunsee and Pottawatomie counties. The KDJA was a proponent of HB 2446 that originally contained the court trustee provision.

HB 2588 HB 2588 by Committee on Judiciary - Concerns children and minors; relating to children in need of care; placement in juvenile detention facilities; permanent custodians; relating to juvenile offenders; alternative adjudication; youth residential centers and services; risk assessment; sentencing; good time credits.

HB 2588 continued This 13 page bill creates a new law and amends existing statues relating to juvenile placement, the Revised Kansas Juvenile Justice Code, and the Revised Kansas Code for Care of Children. Introduced by the House Committee on Judiciary at the request of the Kansas Judicial Council. Alternative Adjudication Procedure. This bill creates a new section in the Revised Kansas Juvenile Justice Code establishing an alternative adjudication procedure for misdemeanor-level juvenile offenses.

HB 2588 continued Sec. 1 (1) provides “certain circumstances may lead to offenses by juveniles who are a minimal threat to public safety, and in such cases it would further the interests of society and the juvenile to use an adjudication approach with less formal procedures, appropriate disciplinary sanctions, and provision of necessary services.” The purpose is “to provide prosecutors with an alternative means of adjudication for juvenile offenders who are a minimal threat to public safety, for the benefit of the juvenile and society.”

HB 2588 continued Allows a county or district attorney with jurisdiction over a misdemeanor-level offense to designate the alleged offender for the alternative adjudication either through the original complaint or by written notice filed with the court and served on the juvenile, juvenile’s counsel, and juvenile’s parent or legal guardian within 14 days of filing the complaint. Filing of a written application for diversion would toll the running of the 14-day period.

HB 2588 continued Sec. 1 (c) specifies that the Revised Juvenile Justice Code would apply in the adjudication, with the following exceptions: If the court determines that there is probable cause to believe the child is a child in need of care (CINC), the court shall refer the matter to the county or district attorney, who shall file a CINC petition; The court must also refer the case to DCF; If the court finds the juvenile should be removed from the home, the court is allowed to place the juvenile in the temporary custody of the Secretary or any person willing to accept temporary custody, other than the child’s parent;

HB 2588 continued The court could not commit the juvenile to a juvenile correctional facility for the offense or for a violation of a term or condition of disposition; The adjudication or violation of the terms and conditions of disposition, including placement failure, “could be used against the juvenile” in a proceeding for a subsequent juvenile or adult offense. “Used against the juvenile” is defined in the bill; Upon completion of the case and termination of the court’s jurisdiction, the adjudication would be expunged; and,

HB 2588 continued The adjudication would not be subject to the provision for retention in court files, law enforcement records, and other expungement requirements, limitations, and disclosure provisions would not apply. The juvenile could not be required to register as an offender, under CORA, K.S.A. 22-4901 et. seq, as a result of the adjudication; The juvenile could not be prosecuted as an adult or under extended jurisdiction juvenile provisions; Limitations on continued out of home placement would not apply; and, Trial under the alternative adjudication procedure would be to the court and the right to trial by jury would not apply.(Sec. 1 (9))

HB 2588 continued The county or district attorney could withdraw the designation for alternative adjudication proceedings at any time prior to the beginning of a hearing and, the court could enter an order adjudicating the child as a juvenile offender, by providing notice to the court, the juvenile, the juvenile’s attorney and guardian as litem, and the juvenile’s parent or legal guardian. The case would proceed, and the court would be able to grant a continuance upon request. An adjudication under this procedure would be an appealable order under the Code.

HB 2588 continued Placement in Juvenile Detention Centers. This bill creates new law within the Revised Kansas Code for Care of Children prohibiting a child alleged or found to be a child in need of care from being placed in a juvenile detention facility unless such placement is necessary to protect the safety of the child and is authorized under certain sections of the Code, or the child is also alleged to be a juvenile offender and such placement is authorized by certain provisions within the Revised Kansas Juvenile Justice Code.

HB 2588 continued Youth Residential Centers. Creates new law requiring the Secretary of Corrections to take certain actions and report on such actions to the House Committee on Corrections and Juvenile Justice, the Senate Committee on Federal and State Affairs, and the Joint Committee on Corrections and Juvenile Justice Oversight. Required actions include: A cost study analysis of all youth residential centers (YRCs); Evaluating program needs within YRCs, comparing those needs with availability, and proposing modifications to align availability with needs;

HB 2588 continued Developing a fee schedule for youth residential services, including daily payment rates for base services and rates for additions to base services; Developing a plan for performance-based incentive payment opportunities and a plan for integration of these payment opportunities into the fee schedule described above; and, Developing a plan to measure performance and evaluate effectiveness of juvenile offender service providers.

HB 2588 continued Removal of Secretary for Children and Families as a Permanent Custody Option. The bill amends the Revised Kansas Code for Care of Children to remove the Secretary for Children and Families as a permanent custody option upon the relinquishment of parental rights.

HB 2588 continued Amendments to the Revised Juvenile Justice Code. Provides that no juvenile less than 12 years of age may be prosecuted as an adult. Requires that a presentence investigation and report include a summary of the results from standardized risk assessment tools or instruments, in addition to the contents required under current law. The placement matrix category of serious offender II is amended to include only offenders adjudicated for an offense which would constitute a nondrug severity level 7, person felony with one prior felony adjudication. Under current law, this category also includes severity levels 8, 9, and 10. The bill places severity levels 8, 9, and 10 within a new category designated “serious offender III.”

HB 2588 continued The placement matrix options for the category of serious offender III are the same as those for serious offender II, except offenders within the category of serious offender III could be committed to a juvenile correctional facility only if the judge conducts a departure hearing and finds substantial and compelling reasons to impose a departure sentence. The bill amends the placement matrix options for all levels of chronic offenders to include the same departure provision. (See 8(a)(2)(c)) Provisions excluding juvenile offenders serving minimum-term placement sentences imposed under the placement matrix from the “good time” system were removed.

HB 2596 Computation of retirement benefits when a state officer or employee is placed on furlough or has reduction in compensation. OJA proposed this bill. The bill is 2 pages in length.

HB 2596 continued The provision holds harmless both the retirement and disability benefits calculations for any state employee member of KPERS or Kansas Police and Firemen’s Retirement System, or the Retirement System for Judges, if the employee is furloughed or accepted a voluntary reduction in pay during the period of time used for determining benefits.

SB 256 Attorney General; Costs in criminal appeals. Amends laws relating to the mistreatment of dependent adults or elder persons. This 12 page bill, amends the crime of unlawful sexual relations to add prohibiting a surety or an employee of a surety from engaging in sexual relations with the subject of a surety bail bond. Provisions from prior HB 2493 regarding sureties and appearance bonds were added. (KDJA and the bail bondsmen agreed on the language which provides more discretion than currently provided in the applicable statutes.)

SB 256 continued Amends bail provisions for certain drug offenses that require at least $50,000 cash or surety to allow any person arrested and charged for these offenses to be released upon the person’s own recognizance if the court determines on the record that: The defendant is not likely to reoffend; The court imposes pretrial supervision; or, The defendant agrees to participate in a licensed or certified drug treatment program.

SB 256 continued Amends similar bail provisions in criminal street gang and RICO statutes to allow release upon the person’s own recognizance if the court determines on the record that : The defendant is not likely to reoffend; An appropriate intensive pretrial supervision program is available; and, The defendant agrees to comply with the mandate of such pretrial supervision.

SB 256 continued Prohibits a person convicted of any felony in that person’s lifetime from acting as a surety or as an agent of a surety. Formerly, only a person convicted of a person felony within the past ten years fell under this prohibition. Requires an out-of-state surety or agent of a surety to contract with a Kansas surety or agent of a surety before attempting to apprehend a person in Kansas and be accompanied by the Kansas surety or agent during the apprehension.

SB 256 continued Provisions from S. Sub 2448 were added amending statues in the Kansas RICO Act to specify the culpability requirement for a violation of the RICO act is “recklessly.” Later this session SB 256 was modified by HB 2389, so that K.S.A. 2013 Supp. 21-639(a) provides that “it is unlawful for any covered person: (1) who has recklessly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use recklessly or invest…”

SB 256 continued Allows the AG to invoke the assistance of county or district county attorneys on criminal appeals so costs of representation by the AG can be paid by the county. Signed by the Governor April 17th, 2014.

HB 2448 This 24 page bill amends jury conduct; interference with the judicial process; adjusts or clarifies several provisions created or amended by or otherwise related to 2013 HB 2170, known as the Justice Reinvestment Act; amends the DNA collection provisions; and establishes expungement time for DUI and test refusal convictions and diversions .

HB 2448 continued DNA Collection Removes references to drawing blood and requires the specified person to submit biological samples to the KBI when a person is fingerprinted as part of the booking procedure. KBI provides the necessary kits and supplies for collection.

HB 2448 continued Persons incarcerated on May 2, 1991, for a crime committed prior to that date would be required to submit a sample prior to final discharge as a condition of release. Clarifies that a person is required to submit a sample when arrested for or charged with lewd and lascivious behavior on if the crime was committed in the presence of a person 16 or more years of age. (Sec. 1 (3)) Strikes provisions that are outdated.

HB 2448 continued This bill makes it a class A nonperson misdemeanor for a person who has possession of or access to samples or profile records maintained by the KBI to disseminate such samples or records except in accordance with applicable laws, or for a criminal justice agency to request profile records without a legitimate need to for such records. A conviction under these provisions constitutes good cause for termination or licensure revocation or suspension.

HB 2448 continued Interference with the Judicial Process (Introduced by the KDJA.) Provides that it is a class A misdemeanor for a person to knowingly make available personal information about a judge or the judge’s immediate family member if dissemination of such information poses an imminent and serious threat to the judge’s safety or the safety of the judge’s immediate family member, and the person making the information available knows or reasonably should know of the imminent and serious threat.

HB 2448 continued Second or subsequent conviction is a severity level nine, person felony. “Personal information” is defined as a judge’s home address or telephone number; person mobile telephone or pager number; personal email address; a photo of the judge, an immediate family member, or the judge’s home or motor vehicle; or an immediate family member’s motor vehicle, place of employment, child care or day care facility, or public or private K-12 school. Defines “immediate family member” and “judge.”

HB 2448 continued Justice Reinvestment Act. (K.S.A. 2013 Supp. 21-6601 et. seq.) Adjusts or clarifies several provisions created or amended by or otherwise related to the Justice Reinvestment Act which made numerous changes to sentencing, probation, and post release supervision statutes. Note: Chief Judge and Kansas Sentencing Commission Chair Evelyn Wilson has one of today’s 11am concurrent programs on HB 2170 and its graduated sanctions.

HB 2448 continued Provision allowing up to a 60 day jail term in felony cases upon revocation of a probation sentence or community corrections placement is moved from the authorized dispositions for sentencing K.S.A. 2013 Supp. 21-6604(a)(3) to K.S.A. 2013 Supp. 22-3716 (b)(3)(i) governing probation, community corrections, suspended sentence, and non-prison sanction violations. It clarifies this provision is separate and distinct from other sanctions provided for a violation of release conditions, shall not be imposed at the same time as the other sanctions, and shall be served concurrently if the offender is serving concurrent probation terms;

HB 2448 continued Adds a similar “up to 60 day” sanction provision for misdemeanor violators and specifies that such sanction shall be served concurrently if the offender is serving concurrent probation; The intermediate sanctions in HB 2170 that may be imposed by a court services officer or community corrections officer are applicable only if the original crime conviction was a felony, with the exception of felony DUI test refusal, domestic battery, forgery, and cruelty to animals convictions;

HB 2448 continued Provides that for felony DUI, test refusal, domestic battery, forgery, and cruelty to animals convictions, the sanctions for misdemeanor violators would be imposed: Adds a two to three-day confinement provision for misdemeanor violators, similar to that allowed for felony violators; Clarifies that the 120-day and 180-day incarcerations intermediate sanctions shall not be served by prior confinement credit;

HB 2448 continued Specifies that intermediate sanctions are to be imposed concurrently if the offender is serving multiple probations terms concurrently; Adds a retroactivity provision to clarify that the violation sanctions shall apply to any violation occurring on or after July 1, 2013, regardless of the time the crime was committed or sentenced. (Sec. 8(c)(12).)

HB 2448 continued Amends provisions implemented by HB 2170 allowing early discharge of low-risk offenders from supervision to change the standard for denial by the court of such discharge from “substantial and compelling reasons” for denial to “clear and convincing evidence that denial…will serve community safety interests”; and, Makes non-substantive amendments adding statutory references to proved clarity and ensure consistency.

HB 2448 continued DUI and Test Refusal Expungement Reduces the period before which a person with a conviction of or diversion for DUI may petition for expungement from 10 years to 7 years. Raises the expungement period for a conviction of or diversion for refusal to submit to a test to determine the presence of alcohol or drugs from 3 years to 7 years.

HB 2448 continued Jury Conduct Admonishes the jury that their duty is not to “form or express an opinion on any subject of the trial until it is finally submitted to them.” Requires the court to admonish the jury is it their duty not to make any final determinations or express any opinion on any subject of the trial until the case is finally submitted to them.

HB 2448 continued The bill would strike language “allowing the jury to request the officer to conduct them to the court to receive information on a point of law or to have the evidence read or exhibited to them in the presence of the defendant, unless the defendant voluntarily absents himself, and his counsel and after notice by the prosecuting attorney.”

HB 2448 continued Allows the jury, upon retiring for deliberation, to take any admitted exhibits into the jury room to review them without further permission from the court. The court could provide equipment to facilitate review. The bill provides that the jury be instructed that any questions it wishes to ask the court about the instructions or evidence should be signed, dated, and submitted in writing to the bailiff.

HB 2448 continued The court would be required to notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. Requires the court to respond to all questions from a deliberating jury in open court or in writing and would allow the court to grant a jury’s request to rehear testimony. The KDJA proposed a bill with similar language to modify jury conduct after a case was submitted to the jury. But, this bill was proposed by the Attorney General.

HB 2448 continued The bill also requires the defendant to be present during the discussion of such questions and during response given in open court, unless such presence is waived. Questions from the jury, the court’s response, and any objections thereto would be made a part of the record. Amendments would establish a procedural rule and, as such, would be construed and applied retroactively. (Sec. (7)(f).)

HB 2568 Amendments to domestic relations cases; Kansas family law code; the Child Support Guidelines. HB 2568, a 7 page bill, amends the Kansas Family Law Code. In parentage proceedings, the bill provides that orders concerning legal custody, residency, and parenting time are made pursuant to existing law governing these issues, which, among other provisions, contains a preference for joint custody that does not appear in the Parentage Act.

HB 2568 continued Child support awarded as part of a parentage proceeding is determined pursuant to the Kansas Child Support Guidelines (the Guidelines.); The court is allowed to consider any affirmative defenses “pled and proved” in making such an award (Sec. 2(f)(2));

HB 2568 continued Any period occurring five years or less before or after commencement of the action, there is a rebuttable presumption that the Guidelines reflect the actual expenditures made on the child’s behalf during that period; and, Any period occurring more than five years before commencement of the action, the person seeking child support has the burden of proving that the total amount requested for that period does not exceed expenditures actually made on the child’s behalf during that period.

HB 2568 continued Allows the court to award costs and attorney fees to either party as justice and equity may require and, unless the attorney represents a public agency in an action, can order that the amount be paid directly to the attorney, who may enforce the order in the attorney’s name in the same case. Strikes language prohibiting fees for representation of a petitioner by the county or district attorney.

HB 2568 continued After the filing of a petition for divorce, annulment, or separate maintenance and during the pendency of the action until the entry of final judgment, the bill amends K.S.A. 2013 Supp. 23-2707 and allows the judge assigned to hear the action to modify and vacate certain orders, including temporary custody orders, orders restraining the parties from disposing of property, and orders requiring mediation.

HB 2568 continued Authority to make and enforce these orders exists under K.S.A. 2013 Supp. 23-2707. In child support proceedings, the bill requires a person who files a motion to request or modify a child support order to include a completed domestic relations affidavit and proposed child support worksheet.

HB 2568 continued When making a child support award, the bills strikes language in K.S.A. 23-3002 requiring the court to consider “all relevant factors, without regard to marital misconduct, including the financial resources and needs of both the parents, the financial resources and needs of the child and the physical and emotion condition of the child.” Instead, the bill requires the court to follow the Child Support Guidelines.

HB 2568 continued Amends K.S.A. 2013 Supp. 23-3005 and allows the court to make a modification of child support retroactive to the first day of the month following the filing of the motion to modify, replacing current law that allows the court to make the modification retroactive to a date at least one month after the date the motion was filed, and Any retroactive award will not become a lien on real property until the date of the order.

HB 2568 continued In a proceeding to determine child custody, residency, and parenting time, the bill modifies the factors courts must consider; The bill strikes current language in K.S.A 23-3203 requiring the court to consider “the length of time the child has been under the actual care and control of any person other than a parent,” and adds the following factors:

HB 2568 continued The age of the child; The ability of the parties to communicate cooperate, and manage parental duties; The school activity schedule of the child; The parties’ work schedule; The location of the parties’ residences and places of employment; and, The location of the child’s school.

HB 2568 continued Clarifies that the court can consider the desires of a child “of sufficient age and maturity” and must consider evidence of both physical and emotional spousal abuse. The bills also makes many technical amendments.

HB 2568 continued OJA indicated passage could increase expenditures for the Judicial Branch, as it will increase time spent by judges hearing child support matters and by nonjudicial personnel in processing, researching, and hearing cases and, The precise financial impact could not be determined.

SB 310 Grand juries; crimes to consider; amendment of indictment. Grand juries upon petition can consider any alleged misdemeanor that arises as part of the same criminal conduct or investigation underlying any alleged felony. Allows the grand jury to request the Attorney General prosecute the case arising from an indictment if the prosecuting attorney will not diligently prosecute the case.

SB 310 continued This 3 page bill allows the court to amend an indictment as to the substance of the offense charged for the limited purpose of effectuating a change of plea. Signed by the Governor April 10th, 2014.

HB 2490 Sentencing of certain persons to mandatory minimum term of imprisonment of 25 years (“hard 25”) or 50 years ("hard 50"). HB 2387 establishes that a life sentence with a mandatory minimum term of imprisonment of 50 years (the Hard 50 sentence) is to be the default sentence when a defendant is convicted of premeditated first degree murder committed on or after July 1, 2014;

HB 2490 continued The sentencing judge would be permitted to impose a life sentence with a mandatory minimum term of imprisonment of 25 years (the Hard 25 sentence) if the judge reviews mitigating circumstances and finds substantial and compelling reasons to impose the lesser sentence; and,

HB 2490 continued If the judge imposes the Hard 25 sentence, the judge is required to state on the record the substantial and compelling reasons for imposing the sentence. Imposes a Hard 25 sentence for a conviction of first degree murder when classified as the killing of a human being committed in the commission of, attempt to commit, or flight from any inherently dangerous felony (felony murder.)

HB 2490 continued For any of these sentencing provisions, if the defendant’s criminal history classification subjects the defendant to presumptive imprisonment in a range exceeding 300 months (for Hard 25 sentence) or 600 months (for a Hard 50 sentence), then the defendant is instead required to serve a mandatory minimum term equal to the sentence established under the sentencing guidelines.

HB 2298 HB 2298 by the Committee on Judiciary – Uniform controlled substances act. Amends the statutes governing controlled substances to add additional drugs or drug classes to the schedules of controlled substances to be in line with federal law. Added 14 hallucinogenic drugs.

HB 2298 continued Two classes of cannibinoids added. Cannibinoid class name added to schedule I. Two anabolic steroids added to schedule III. Lorcaserin (a weight loss drug) added to schedule IV. On May 7, 2013, the DEA classified it as a schedule IV drug under federal law. Signed by the Governor April 18th, 2014.

HB 2478 Venue for crimes committed with an electronic device. In addition to venues available under current law, HB 2478 allows prosecution for any crime committed using an electronic device where:

HB 2478 continued Any requisite act to the commission of the crime occurred; The victim resides; The victim was present at the time of the crime; or, Property affected by the crime was obtained or was attempted to be obtained. Signed by the Governor April 8th, 2014.

HB 2501 Human trafficking and related crimes; penalties for buying sexual relations; records and reporting by courts; staff secure facility requirements. This 8 page bill amends laws related to human trafficking. Adds crimes of buying and selling sexual relations to the list of crimes reported to the KBI Central Repository.

HB 2501 continued Diversion agreements in crimes of buying/selling sexual relations are required to include payment of the fine and completion of education or treatment. Limit of one diversion agreement per lifetime. Signed by the Governor April 8th, 2014.

HB 2566 Requires court fees for forensic audio and video examination services. Amends K.S.A. 2013 Supp. 28-176 and adds a $400 court cost for forensic audio and video examination services. Adds Garden City Police Department Computer, Audio, and Video Forensics Laboratory to the list of entities whose services may be used to incur the court costs. This one page bill was signed by the Governor on April 8th, 2014.

HB 2447 Real property; trespass and liability A possessor of any real property owes a trespasser only the duty of care that existed in common law or in statute on July 1st, 2014. The bill does not affect any immunities from defenses to civil liability established by another Kansas statute or available by common law to which the possessor may be entitled. Signed by the Governor April 17th, 2014.

HB 2463 Creates civil liability for acts of terrorism; forfeiture of property related to violations of certain criminal acts. This 4 page bill establishes a specific civil action for a person injured as a result of a crime of terrorism or a crime of furtherance of terrorism. Plaintiff is entitled to recover the greater of $10,000 or three times the actual damages plus attorney fees.

HB 2463 continued The statute of limitations is 5 years. The victim may request the Attorney General pursue the case on the victim’s behalf. Amends the definition of the crime, furtherance of terrorism, to include raising, soliciting, collecting, or providing material or support resources with the intent of use or aid in a crime of terrorism. Signed by the Governor April 10th, 2014.

HB 2491 Kansas tort claims act; attorney may appear in small claims action. The Attorney General proposed HB 2491. When a small claims action falls within the Tort Claims Act, a lawyer may now appear on behalf of any government entity, officer, or employee, and may also file a motion and brief requesting dismissal. Signed by the Governor April 10th, 2014.

SB 329 Amends the juvenile statute of limitations to match adult time limitations for sex crimes; clarifies court orders relating to parents in juvenile offender cases.

SB 329 continued SB 329 amends, K.S.A. 38-2303, the statute of limitations for several offenses under the Kansas Juvenile Justice Code. Proceedings for rape, aggravated criminal sodomy, capital murder, terrorism, or illegal use of weapons of mass destruction can be commenced at any time.

SB 329 continued Proceedings for an act that would constitute a sexually violent crime if committed by an adult can be commenced within 10 years when the victims is 18 years old or older; When the victim is younger than 18 years old, the bills allows for such proceedings to commence within 10 years of the date the victim turns 18 years of age; and,

SB 329 continued The bill does not affect existing law allowing a proceeding for such offenses to be brought within one year of the date the identity of the suspect is conclusively established through DNA testing, if such period is later than the limitation period otherwise provided.

SB 329 continued OJA indicated the bill could increase the number of district court cases and appeals, increasing the time required by court personnel in handling the cases and appeals; The additional cases also could increase docket fee revenue; and, A precise fiscal effect could not be determined.

SB 329 continued Allows a court, when sentencing a juvenile offender, to order the offender’s parent to participate in “any evidence-based program designed to rehabilitate the juvenile,” including, but no limited to, programs listed in current law. Revised Juvenile Justice Code currently allows a court to order the offender’s parent to participate in counseling, mediation sessions, and alcohol and drug evaluations and treatment program, or parenting classes.

HB 2182 Amends the Open Records Act. (K.S.A. 45-215 et. seq.) Revises the law concerning exceptions to the Open Records Act. The bill strikes a sunset clause that requires the Legislature to reenact an exception for records concerning public adjusters submitted to the Insurance Commissioner that contain information identified in writing as proprietary.

HB 2182 continued Provides that exceptions in the following statutes will not expire: KSA 38-2209, concerning records of children who are the subject of a child in need of care investigation. KSA 44-706, concerning evidence of whether an individual has experienced domestic violence maintained as part of a Department of Labor determination of eligibility for unemployment benefits.

HB 2182 continued KSA 45-221(a)(45), concerning records, other than criminal investigation records, which if disclosed would pose a substantial likelihood of revealing security measures that protect systems, facilities, or equipment used in the production, transmission, or distribution of energy, water, or communications services; transportation and sewer or wastewater treatment systems, facilities, or equipment; or private property or persons, if the records are submitted to the agency.

HB 2182 continued KSA 45-221(a)(46), concerning the information or material received by the register of deeds of a county from military discharge. KSA 45-221(a)(47), concerning information that would reveal the location of a shelter or a safe-house or similar place where persons are provided protection from abuse or the name, address, location or other contact information of alleged victims of stalking, domestic violence or sexual assault.

HB 2182 continued KSA 65-16,104, concerning methamphetamine precursor recording log information submitted to the Board of Pharmacy. KSA 77-503a, concerning the name, address, or other contact information of alleged victims of crime, abuse, domestic violence, or sexual assault in any required notice or order under the Kansas Administrative Procedure Act. Signed by the Governor April 17th, 2014.

HB 2479 Removed 2015 sunset provision from law requiring ignition interlock device after first test failure of alcohol or drug related conviction. Revises administrative restrictions applicable to driving under the influence and related offenses to remove the July 1, 2015 sunset date.

HB 2479 continued Requires the applicant to pay a $25 application fee if license expires while suspended and meets the following criteria: License and citation was issued by the State of Kansas; Suspension resulted from a failure to comply with a traffic citation; and, Applicant has not previously had a suspension stayed. Signed by the Governor April 17th, 2014.

HB 2655 Interference with law enforcement; giving a false alarm; alternative sentencing for veterans in certain circumstances Interference with Law Enforcement (K.S.A. 21-5904.) Amends this crime to include falsely reporting that a law enforcement officer has committed a crime or misconduct of duties if the perpetrator knows the information is false and intends for the officer or agency to act upon such information.

HB 2655 continued Removed from the definition of “Interference with Law Enforcement’” the act of falsely reporting to law enforcement that “a crime has been committed or information concerning a crime, knowing the information is false, and intending that law enforcement will act in reliance on the information.” Clarifies that the misdemeanor version of this crime may be committed by interfering with law enforcement in a non-criminal case.

HB 2655 continued Giving a False Alarm (K.S.A. 21-6207.) Amends this crime to raise the penalty to a severity level 10, nonperson felony if the perpetrator uses an electronic device or software to alter, conceal, or disguise the identity of the person making the call or transmission. Amends this crime to raise the penalty to a severity level 7, nonperson felony if the request for emergency assistance includes false information of violent criminal activity or an immediate threat to a person’s life.

HB 2655 continued Sentencing for Veterans Enacts a new law and amends existing statutes to allow defendants to claim, prior to sentencing, that the offense was committed as result of mental illness including PTSD stemming from service in a combat zone in the US Armed Forces.

HB 2655 continued The court must hold a hearing to determine: Whether the defendant served in a combat zone while in the US Armed Forces, as proven by certification of the executive director of the Kansas Commission on Veteran’s Affairs; Whether the defendant has separated from the armed forces with an honorable discharge or general discharge under honorable conditions; Whether the defendant suffers from a mental illness; and, The mental illness was caused or exacerbated by service in a combat zone.

HB 2655 continued If the defendant meets criteria established by the bill and the current crime and criminal history score fall within a presumptive non-prison category, the court can order treatment with programs operated by the US Dept. of Defense, VA, and Kansas National Guard. If the defendant also meets the alternative sentencing provisions of 2003 SB 123, the court may order treatment by the statutory treatment program providers in lieu of the SB 123 treatment providers. Signed by the Governor April 23rd, 2014.

HB 2442 Establishes a special sentencing rule for third or subsequent violation of fleeing or eluding police (K.S.A. 2013 Supp. 8-1568.) Sentencing for the violation shall be presumptive imprisonment. Served consecutively to any prison sentence. Not considered a departure and is not subject to appeal.

HB 2442 continued Amends the fleeing and eluding statute to clarify the definition of conviction. Within the definition of “conviction” it is irrelevant in determining whether it is a first, second, third or subsequent conviction, whether an offense occurred before or after the conviction for a previous offense.

HB 2442 continued Contains an amended sentencing guideline grid for nondrug felony crimes. Made non-substantive amendments to reorganizing the fleeing and eluding penalty provisions. Signed by the Governor April 17th, 2014.

SB 271 Amends the Kansas Medicaid fraud control act, K.S.A. 2013 Supp. 21-5926. Renames the crime of making a false claim, statement, or representation to the Medicaid program to “Medicaid fraud”. Adds “intentional execution or attempt to execute a scheme or artifice to defraud Medicaid or any Medicaid contractor” to the definition of the crime.

SB 271 continued Restructures the applicable severity levels so that each claim’s severity level depends on the aggregate amount of the illegal payments claimed. Regardless of the illegal claim amount, illegal claims resulting in great bodily harm is a severity level 4, person felony.

SB 271 continued Regardless of the illegal claim amount, illegal claims resulting in death is a severity level 1, person felony. In sentencing for Medicaid fraud a defendant’s act or omission resulting in lesser quality or amount of service to which the recipients was entitled can be considered an aggravating factor in making a departure determination.

SB 271 continued Specifies that a defendant may also be prosecuted, convicted, and punished for any form of battery or homicide. Provides definitions for “aggregate amounts of payments illegally claimed” and “pecuniary harm.”

SB 271 continued Imposes a fine of $1,000 to $11,000 per violation, if requested by the Attorney General, and directs the fine revenue to the False Claims Litigation Revolving Fund. Makes technical changes to correct statutory and agency references. Signed by the Governor April 17th, 2014.

HB 2445 Allows for criminal discovery materials to be provided to defendant or defendant’s counsel. Amends code of criminal procedure to clarify that the defense, rather than the defendant individually, is entitled access to discovery materials.

HB 2445 continued Removes the requirement that the basis and reasons for expert opinion be included and disclosed in a reasonable time. Prosecution has same disclosure requirements for expert witnesses. Signed by the Governor April 8th, 2014.

HB 2578 Certification by chief law enforcement officer for transfer of a firearm when required by 27 C.F.R. Sec. 47985. This 19 page bill creates new law concerning the transfer of certain federally regulated firearms. Amends current statutes and creates new provisions of law concerning the regulation and possession of weapons including firearms, handguns, and knives.

HB 2578 continued Specifically addresses: Transfers of certain federally regulated firearms Concealed carrying of handguns Creates new prohibitions for municipalities related to their employees and specifically to employees who are concealed carry license holders. Municipal employers of concealed carry license holders cannot require disclosure by municipal employees who possess concealed carry licenses.

HB 2578 continued Municipal employers are prohibited from creating a record of any employee’s possession or disclosure of a concealed carry license. Any such records created by municipality before the effective date of the bill must be destroyed by July 31, 2014. Adds a conviction for any of the offenses in KSA 2013 Supp. 21-6304(a)(1) (criminal possession of a weapon), as amended elsewhere in this bill, to include all weapons, and not only firearms, as a reason why the Attorney General will deny an application for a concealed carry handgun license.

HB 2578 continued Municipalities cannot terminate, demote, discipline, or otherwise discriminate against an employee based on the employee’s refusal to disclose the employee’s status as a concealed carry license holder. Open carry of firearms Adds new posting requirements for buildings where the open carrying of firearms can be prohibited as authorized in this legislation, similar to the concealed carry posting requirements in 75-7601 et. seq.

HB 2578 continued The new provision makes it a violation to carry an unconcealed firearm into a building that was conspicuously posted according to the new requirements and posted in accordance with the rules and regulations of the Attorney General. NOTE: Chief Judges who issued administrative orders restricting concealed carry of firearms should consider possible modifications of their orders. Replaces the law concerning the operation, possession, or carrying of a concealed handgun under the influence of alcohol or illegally used controlled substances with a new provision applying the penalties for possessing or carrying any firearm under the influence, not just concealed handguns addressed in the current law.

HB 2578 continued Regulation of firearms and knives by local units of government Prohibits cities and counties from adopting or enforcing ordinances, resolutions, regulations, or administrative actions governing the purchase, transfer, ownership, storage, carrying, or transporting of firearms, ammunition, or any related component relating to the sale of the firearms by individuals having federal firearms licenses. Legislation from the 2013 session, K.S. A. 2013 Supp. 12-16, 134, is expanded with regard to municipal regulation of knives.

HB 2578 continued If the enactments are in compliance with this bill, cities and counties are permitted to adopt ordinances, resolutions, or regulations pursuant to KSA 2013 Supp. 75-7c20 relative to the personnel policies governing concealed carry of handguns by city or county employees so long as in compliance with the law.

HB 2578 continued Municipalities cannot enact or enforce any ordinance, resolution, regulation, or tax relating to the transportation, possession, carrying, sale, transfer, purchase, gift devise, licensing, registration, or use of a knife or knife making components. Individuals cannot be prosecuted for violating municipal regulations on knives or knife making components between July 1, 2013 and the effective date of the bill (July 1, 2014).

HB 2578 continued Contains forfeiture, return, and buyback of firearms provisions. Criminal use of weapons (K.S.A. 2013 Supp. 21-6301.) Daggers, dirks, dangerous knives, straight-edged razors, and stilettos are added to the list of prohibited weapons, and the possession of any such dangerous weapon with the intent to use it against another person now constitute the crime of criminal use of a weapon.

HB 2578 continued Criminal possession of weapons Broadens language in K.S.A. 2013 Supp. 21-6304 to refer to criminal possession of a weapon instead of criminal possession of only a firearm. Adds references to a previous version of the drug code to ensure that conviction of drug crimes gives rise to the crime of criminal possession of a weapon. Signed by the Governor April 23rd, 2014.

HB 2444 Spendthrift Trusts Kansas Bar Association recommended this bill. Amends trust provisions of K.S.A. 58a-502 to more closely mirror uniform law provisions, addressing situations in which a beneficiary is serving as sole trustee to protect the trust estate against creditors of the beneficiary.

HB 2444 continued Under prior law regardless of whether a trust contained a spendthrift provision, a creditor could not compel a distribution that was subject to the trustee’s discretion, even if the discretion was expressed in a standard form for distribution or the trustee abused the discretion.

HB 2444 continued HB 2444 provides that creditors may not compel a distribution even if the standard is expressed and the trustee has abused the trustee discretion. This bill also creates an exception in which a beneficiary serves as sole trustee and the standard of distribution is not in the form of an ascertainable standard, relating to such beneficiary’s health, education, support, or maintenance.

HB 2444 continued When the exception applies the creditor can Compel any distribution the beneficiary, while serving as sole trustee, either is presently authorized to make and did not make; and, Attach the beneficiary’s interest in the trust with respect to any present or future discretionary distributions to the beneficiary, in the absence of a spendthrift provision precluding the attachment. Signed by the Governor April 10th, 2014.

HB 2389 Amends law related to disclosure of probable cause affidavits or sworn testimony supporting search or arrest warrants; statutory speedy trial deadline; automatic stay of a mandate in certain appeal; makes technical corrections to language already passed in 2014 legislation.

HB 2389 continued Probable Cause Affidavit and Sworn Testimony Disclosure. The bill amends the law concerning affidavits and sworn testimony used in support of the probable cause requirement for warrants; It strikes language that allows a magistrate to issue an arrest warrant or summons based on “other evidence,” and replaces it with “sworn testimony;” and,

HB 2389 continued Additionally, for a warrant or summons executed on or after July 1, 2014, the bill provides probable cause affidavits or sworn testimony will not be open to the public until the warrant or summons has been executed. Amends the law concerning probably cause affidavits and sworn testimony used in support of search warrants and search warrants for tracking devices;

HB 2389 continued For search warrants executed on or after July 1, 2014, the bill provides probable cause affidavits or sworn testimony will not be open to the public until the warrant or summons has been executed. Once executed, such affidavits or sworn testimony will be made available to any person, when requested in accordance with the requirements outlined in the bill. (The affidavits and sworn testimony continues to be made available to the defendant or the defendant’s counsel upon request, for such disposition as either may desire.)

HB 2389 continued The bill allows any person to file a request with the clerk of the court for disclosure of affidavits or sworn testimony. Within five business days of receiving notice of such request, the defendant, defendant’s counsel, and prosecutor can submit a request to the magistrate under seal that the court either redact specified provisions of the affidavit or sworn testimony or seal the documents. Requests must include the reasons for such proposed redactions or seal; and,

HB 2389 continued The magistrate judge reviews the request and makes appropriate redactions, or seals the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would: Jeopardize the safety or well being of a victim, witness, confidential source, or undercover agent, or cause the destruction of evidence; Reveal information obtained from a court-ordered wiretap or search warrant for a tracking device that has not expired;

HB 2389 continued Interfere with any prospective law enforcement action, criminal investigation, or prosecution; Reveal the identity of any confidential source or undercover agent; Reveal confidential investigative techniques or procedures not known to the general public; Endanger the life or physical safety of any person; Reveal the name, address, or telephone number or any other information that specifically and individually identifies the victim of a sex offense;

HB 2389 continued Reveal the name of any minor; or, Reveal any date of birth, business or personal telephone number, driver’s license number, non-driver’s identification number, Social Security number, employee identification number, taxpayer identification number, vehicle identification number, or financial account information.

HB 2389 continued Within five business days of receiving the proposed redactions or motion to seal from the defendant, the defendant’s counsel, or the prosecutor, or within ten business days after receiving notice of a request for disclosure, whichever is earlier the court shall: Order disclosure of the affidavits or sworn testimony with appropriate redactions, if any; or, Order the affidavits or sworn testimony sealed and not subject to public disclosure.

HB 2389 continued Statutory Speedy Trial Deadline. Amends the criminal code to raise the statutory speedy trial deadline for a defendant held in jail from 90 days to 150 days after arraignment.

HB 2389 continued Stay of Appellate Mandate. Amends the statutes governing criminal appeals to provide that the issuance of the mandate from the appellate court in criminal and related appeals is automatically stayed when a party files notice that it intends to petition the U.S. Supreme Court for a writ of certiorari and the time to file such petition has not expired;

HB 2389 continued Any mandate issued before a party files such notice is withdrawn and stayed; The stay is lifted if the petition for writ of certiorari is denied, upon the Supreme Court’s final order after granting such petition, or once the time has expired for filing such petition and no petition has been filed.

HB 2389 continued Technical Corrections. Makes technical corrections to statutory references contained in SB 256, previously passed by the 2014 Legislature, with regard to the crimes of mistreatment of a dependent adult and mistreatment of an elder person and, The bill also makes a technical correction to the culpability amendment, “recklessly,” for the Kansas RICO Act contained in SB 256.

HB 2065 Relating to district judge and district magistrate judge vacancies. Expands jurisdiction of district magistrate judges. (K.S.A. 2013 Supp. 20-302b.) Subject to any assignment under K.S.A. 20-329, allows district magistrate judges to hear felony first appearance hearings, uncontested divorces, misdemeanor arraignments, and any chapter 60 civil action with consent of parties.

HB 2065 continued Appeals from district magistrate judges regularly admitted to practice of law will go directly to the Court of Appeals. District magistrate decisions are to be on the record.

HB 2303 Relating to driver’s license fees; driving under the influence equipment fund First bill ran in the House for the 2014 session. 2% under market pay increase for all non-judge employees. Funding comes from increasing driver’s license reinstatement fees and not from the state general fund (SGF).

HB 2303 continued Passage increases revenues by an estimated $1.5 million in FY 2015 and subsequent years. Signed by Governor February 3rd, 2014. Budget Bill Trailer HB 2446, making technical date changes, passed on April 30, 2014.

HB 2338 Supplemental Judicial branch appropriation for fiscal year 2015, judiciary operations. Increasing various docket fees and creating new docket fees.

HB 2338 Continued Annually, starting July 1, 2015 allowing the allocation of a budget for each judicial district court operations. The chief judge would have the authority to expend funds as necessary to carry out the functions of such district if such chief judge elected to do so, including establishing what court personnel are necessary and their compensation. Starting July 1, 2015 district court judges in each judicial district elect the chief judge and the Court of Appeals judges elect the Chief Judge of the Court of Appeals.

HB 2338 Continued District judge and district magistrate judge vacancies. In retention election districts the nomination commission is to be notified in 120 days by the Chief Justice no longer “promptly,” and the governor has 60 days, no longer than 30 days, to appoint.

HB 2338 Continued In elected districts the clerk of the Supreme Court must notify the governor within 120 days of the vacancy. The governor then has 90 days, not 60 days, to appoint the judge. Projected savings of $250,000 to $400,000.

HB 2338 Continued Omnibus bill including judicial budget for FY 2015, SB 324, SB 313, SB 364, SB 365, and SB 377 was packaged by Senate Ways and Means on February 28, 2014. Appropriates $2 million in additional State General funds for the Judicial Branch. Deletes that statutory requirement for the payment of longevity to Judicial Branch non-judicial staff. The provisions of the bill are “non-severable.”

HB 2338 Continued Increases fees as follows: New fee for summary judgment motions: $195 (Chapter 61 cases, State of Kansas, and municipalities are exempted.); New fee for garnishment fees: $12.50 (State of Kansas and municipalities are exempted.), Expungement of convictions and arrest records from $100 to $176 beginning July 1, 2014, Traffic, Cigarette or tobacco, or fish and game from $74 to $86 beginning July 1, 2014,

HB 2338 Continued Expungement of juvenile records or files from $100 to $176 from July 1, 2013 to July 1, 2015; Out-of-state probate from $108.50 to $173 beginning July 1, 2014; Chapter 60 cases from $154 to $173 beginning July 1, 2014; and, It reduces the docket fees in small claims from $37 to $35 (claims under $500) and from $57 to $55 (claims over $500) commencing July 1, 2014.

HB 2338 continued The Division of Budget estimated that $6.2 million in revenue would be generated in FY 2015. According to the estimates, the first $3.1 million in FY 15-17 goes into the new fund, Electronic Filing and Centralized Management Fund, $2,772,280 distributed to the Judicial Branch Docket Fee Fund, and $27,720 to the Judicial Council Fund.

HB 2338 continued Judicial Branch submitted revised fiscal information indicating revenues generated would be about $1.4 million less than the Division of Budget. However, the bill was amended after this revised fiscal note, exempting the state and municipalities from paying the fee for summary judgments and garnishments. Thus revenue estimates are uncertain. Our current docket management systems do not track the number of summary judgment motions filed. The systems only track cases resolved. Thus the potential revenue from the summary judgment motions filed results in different revenue projections.

HB 2338 continued Starting in FY 18 the first $1,000,000 generated would go into the new Electronic Filing and Centralized Management Fund.

HB 2231 Makes and concerns State appropriations for fiscal years 2014-2018. Has a $250 payment to all full-time judicial branch employees in FY 15.

HB 2231 continued Approved by the Governor except the following sections were vetoed in their entirety: Kansas Board of Barbering Salary Cap. (Sections 14(c) and 15(c).) Kansas Public Employees Retirement System Sweep of Tobacco Settlement Funds. (Section 50(b).) Department of Administration Lapse of State General Fund Budget Authority. (Section 52(f).)

HB 2231 continued Kansas Department of Aging and Disability Services Lapse of State Hospital Funds. (Sections 71(g) and 71(h).) State Fair Board State Funds for Capital Improvements (Section 100(c).)

Summary of 2014 Judicial Conference Partial Bill - SB 231 Overview