2019 Legislative Session-In Review, 0919 KSBJ, 88 J. Kan. Bar Assn 8, 33 (2019)

Authorby Joseph N. Molina III
Position88 J. Kan. Bar Assn 8, 33 (2019)

2019 Legislative Session-In Review

88 J. Kan. Bar Assn 8, 33 (2019)

Kansas Bar Journal

September, 2019

by Joseph N. Molina III

KBA Director of Legislative Services

The Kansas Legislature adjourned Sine Die on May 29, 2019. When you review the raw numbers, the 2019 session was comparable to previous years. For instance, in 2019 the Kansas Senate introduced 241 senate bills, 44 senate resolutions and 12 concurrent resolutions. The Kansas House proposed 411 bills, 24 resolutions and 14 concurrent resolutions. The number of bills introduced is similar to the numbers introduced in previous years. However, the number of bills sent to the governor for approval was down more than 20 percent. In 2019, Gov. Laura Kelly approved 71 bills, vetoed the tax bill[1] (twice) and SB 67, the abortion reversal pill. Gov. Kelly also made several line-item vetoes from the budget. Finally, the governor also let HB 2209, the Farm Bureau Health proposal, become law without her signature.

Whether the lack of bills sent to the governor was by design or simple coincidence is hard to say, but the pace at which the legislature moved was noticeably slower. For instance, the Senate Judiciary Committee is one of the busiest committees in the legislature. In 2019, 67 bills were referred to the Senate Judiciary Committee. The committee held 19 hearings before the turnaround deadline and 24 hearings before the drop-dead deadline. In 2018, the committee heard 25 percent more bills over nine more hearings. This clearly had an impact on how many bills continued through the legislative process. As such, less was done—but as John Wooden once said, “Never confuse activity with achievement.”

Schools, Taxes and the Budget

When the Kansas Legislature was active, its focus was on three issues: K-12 education, tax cuts, and the state budget. The legislature was in a time crunch to deliver what it hoped would be a constitutionally appropriate school finance plan to the Kansas Supreme Court. The plan was crafted by the governor’s office and the Kansas Senate, and it included an additional $360 million over four years.[2] The Kansas House w as more interested in the short term, with alterations to the funding formula. However, the house position lost out in the closing moments of the regular session, and Kansas Attorney General Derek Schmidt defended the school finance plan before the Kansas Supreme Court.

Both chambers were interested in a tax cut this session. They passed a tax bill twice with similar provisions that included: Kansas itemized deductions (decoupling); deferred foreign income; global intangible low-taxes income; capital contributions and FDIC premiums, and a small food tax deduction. Both times, Gov. Kelly vetoed the measures; both times the legislature failed to override. Look for this to repeat itself in 2020.

Except for the K12 lawsuit, the state budget is the only true necessity for the legislature each session. This year’s mandatory work can be found in House sub for SB 25.[3] This bill includes $7.1 billion in state general funds. Major adjustments for FY 2020 include $4.9 million and 313 new employees for KanCare; $12.4 million for CHIP; $46 million and change for KDADS; $19 million and 58 FTE employees for DCF; $41 million for Corrections to deal with shrinkage, bed space, HEP-C and housing female inmates. The budget also includes a 2.5 percent state employee raise, including judicial branch employees. The governor made five line-item vetoes to the budget. The largest was for a $51 million payment for KPERS. Each of these line-item vetoes was overridden during the Veto Session.

Medicaid Expansion4

In the 2019 session, the issue of Medicaid expansion produced the most press and controversy. The Kansas House passed HB 2066 to expand Medicaid coverage to an additional 130,000 Kansans. The Kansas Senate appeared to have the votes to follow suit, but senate leadership kept the bill in committee, away from a vote. In a last-minute effort, Senate Minority Leader Anthony Hensley (D-Topeka) offered a procedural motion to pull HB 2066 from committee and place it on general orders. This motion needed 24 votes to pass; it got 23.

Sen. Jim Denning (R-Overland Park) has agreed to discuss the issue next session.[5] There is a plan to create a committee to review Medicaid expansion in 2020. This came after a tumultuous session with three separate protests aimed an expanding Medicaid. Supporters of Medicaid expansion hung four banners from the Capitol rotunda rail, dropped thousands of leaflets in the rotunda and disrupted the Senate on Sine Die. The last protest saw nine protesters arrested.

Court of Appeals Nominations

Gov. Kelly had the opportunity this session to nominate a replacement for Judge Patrick McAnany, who was retiring from the Kansas Court of Appeals. Kelly first nominated District Court Judge Jeffry Jack from Labette County. Almost immediately, it was discovered that Judge Jack made controversial comments on social media. Two days later, Kelly withdrew the Jack nomination.

The process for nominating a court of appeals judge was amended in 2013 to require Senate confirmation, while provisions dealing with the withdrawal of a nomination were removed. Gov. Kelly’s withdrawal of Jack’s nomination became actionable, and a lawsuit was fled to determine the proper nominating authority. Under KSA 20-3020, should the governor fail to nominate a replacement within 60 days of the opening, the nomination is to be made by the Chief Justice of the Kansas Supreme Court. This lawsuit marked the first time in Kansas history—as far as I can discover—that the governor, the legislature and the chief justice were ever captioned as defendants in the same action.[6]

The Kansas Supreme Court (minus Chief Justice Nuss) heard the case on an expedited timetable and ruled that Gov. Kelly did not have the authority to withdraw the Jack nomination. KSA 20-3020 doesn’t merely lack a withdrawal process, that process was intentionally removed in 2013. As such, the Jack confirmation was still active, and the senate needed to vote on that nomination before the 60-day deadline lapsed. On May 14th, the Kansas Senate obliged and voted down...

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