1999 Legislative Wrap Up
| Jurisdiction | Kansas,United States |
| Citation | Vol. 68 No. 08 Pg. 16 |
| Pages | 16 |
| Publication year | 1999 |
68 J. Kan. Bar Assn. August, 16 (1999). 1999 LEGISLATIVE WRAP UP
August, 1999
Ron Smith
Copyright (c) 1999 by the Kansas Bar Association; Ron Smith
Rushing toward the millennium
It is comforting to note that the more things change, the more they stay the same.
Kansas is on track to end the 20th century similar to how it began.
A hundred years ago the United States was just finishing mopping up in the Spanish-American War. Americans today are mopping up this Kosovo thing. (By the way, there are Kansas lawyers and other Kansas National Guard personnel on the ground in Kosovo and Bosnia.)
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Legislators in 1900 were fighting the power of business in our lives. Government used to be upset with Standard Oil and the Beef Trust. Now it is Microsoft. Teddy Roosevelt called them trusts. They now are called multi-national corporations. The corrective device remains the same: the anti-trust lawsuit.
There is also a constant tension between religion and public schools. Manhattan city leaders spent time deciding whether the Ten Commandments in stone tablet form should grace the courthouse square. The Kansas State Board of Education spent this spring and summer squabbling over whether to include creation science in the public school curricula.
That sort of fight was around a hundred years ago, too. A precocious 12-year-old Topeka boy Phil Billard, after whom the Topeka general aviation airport is named, disagreed with a teacher who required that morning exercises would include the Lord's Prayer and the Twenty-Third Psalm. While participation in this scripture was voluntary, nonparticipants had to remain quiet. Master Philip was not the quiet type. Eventually his antics got him expelled. Pap Billard got involved, but the school board stood by the principal. That brought a lawsuit arguing the Kansas bill of rights prohibits interference with the "rights of conscience" or compelling "any form of worship."
Kansas statutes of the time were admittedly a bit bipolar on the question of religion in schools. A good example, applicable in Billard's case, was: "No sectarian or religious doctrine shall be taught or inculcated in any of the public schools of the city; but nothing in this section shall be construed to prohibit the reading of the holy scriptures." [FN1]
The era saw David Brewer, the only Kansan to serve on the U.S. Supreme Court, author the Holy Trinity case that declared America to be a Christian nation. [FN2] The Kansas Supreme Court that decided Billard, cut from similar cloth, held that a voluntary quiet time with scripture to calm rambunctious youths was not compulsory worship and that "there is nothing in the Constitution or statute which can be construed as an intention to exclude the Bible from the public schools." Prayer, the court held, is merely a means of promoting "the intellectual, moral, scientific, and agricultural improvement" of children, not fomenting religion in Master Billard's mind. Billard's protest was rejected. [FN3]
Lawyers and Y2K
In 1900, there were no ethics codes governing lawyers. Lawyers were disciplined by their clients through the filing of lawsuits. K.S.A. 7-106 was a statutory cause of action by clients against lawyers - either their own or the of the other party - for treble damages if they could prove the lawyer was guilty of "deceit or collusion." Its ancestor statute was used often in 1899. The same statute allowed district courts to order the additional sanction of disbarment. The modern term is fraud, and the 1999 Legislature repealed K.S.A. 7-106, deferring to the Judicial Branch's authority to regulate the practice of law. As the Judicial Council's Nick Badgerow pointed out, lawyers guilty of fraud face punitive damages that are perhaps far higher than treble damages. [FN4] The bar was smaller, mostly white and male, and helping small businesses get larger was the primary focus. The bar has changed considerably since then. Ethics codes came along in 1908 and have changed three times this century. As the end of the 20th century draws near, the American Bar Association is looking at significant changes to the rules, even to allowing lawyers to partner up with nonlawyers and practice law out of new entities called "multidisciplinary panels." The interesting feature is that such interdisciplinary collaboration is not new; it is foreign to current lawyers because they have grown up with ethics rules forbidding fee splitting with nonlawyers, which ethically is a fairly recent development. [FN5]
One main difference between 1899 and 1999 is that in the earlier time, there were no computers to make people's lives miserable. Nor did people feel the compulsion to stockpile canned goods while awaiting the passage of New Year's Eve. In 1899, most Kansans still lived on the farm and had no electricity. Now that some computer programmers have people worried about Y2K, computer users and the population at large will see whether the doomsayers are correct when they pay homage to Bill Gates' New Law of Cybernetic Entomology: "There is always one more bug."
The Kansas Legislature, like others, spent part of the 1999 session deciding whether to immunize businesses in Kansas from the vagaries of blank computer screens on the morning of 01/01/00. Lawmakers, who face re-election next year, like to be perceived as probusiness whenever they can. They thought about passing a bill to "do something" about Y2K. Since it is predicted so many of the Y2K problems are going to happen on the Pacific Rim, it was silly to try to fix an international problem via the Kansas Legislature. Instead of new limitations in our civil procedure code, the Legislature adopted a resolution entitled, "The Law of Probable Dispersal," which states, simply, "Watch out! Whatever hits the fan will not be evenly distributed."
Separation of powers
I appreciate my learned brethren, Rep. Mike O'Neal's discussion of the business viewpoint of the changes in the small claims act. The legislation allows nonlawyers to represent corporations and laypersons in small claims court. To the bar, the concern is the separation of powers doctrine.
*18 Et tu, catfish
For a time, lawmakers considered the notion the 1999 Kansas Legislature should make it a misdemeanor not to report an inherently dangerous felony.
Obviously, the KBA became concerned since there appeared to be no exception for the attorney-client privilege. It is, of course, one thing to compel testimony from witnesses to a crime, but another to make it a crime not to report a crime.
Finally, hats off to the intrepid band of junior high environmentalists from Olpe, who successfully knocked heads with the catfish-worshipping youths of central Kansas and killed the 1999 Catfish Bill. That legislation intended to make the catfish the state fish. Of course, the Olpe children were lobbying for their favorite, the Topeka Shiner. Shiners are an endangered species and amount to nothing more than an hors d'oeuvre for channel cat. The Olpe youths inherently understood the need for caution in making wildlife an icon by law. Obligations are created. After all, Kansas almost went to war with Oklahoma in the 1930s when the dust bowlers began eating meadowlarks!
After all, this is not England!
As for the details of this Legislature's other accomplishments - and there were many - KBA has the able assistance from the Legislature's leading lawyer-legislators. Kansas is fortunate to have the few lawyer-legislators in the Legislature that it has. These individuals try to bring a bit of reason to what can be a chaotic process. Writing for the 1999 legislative wrap up are:
. Rep. Jim Garner, who covered insurance and environmental/water law;
. Rep. Ward Loyd, who covered local government, business law and education;
. Rep. Mike O'Neal, who covered civil law, eminent domain, small claims court and the sexual predator law; and
. Rep. Jan Pauls, who covered changes to driver licensing, criminal law and changes affecting the sexual predator law;
Their assistance in the Legislature, and in presenting these issues, is greatly appreciated.
Business
Kansas Revised Limited Liability Company Act
HB 2276 replaces the Limited Liability Company Act found at K.S.A. 17-7601 et seq. with the Kansas Revised Limited Liability Company Act, with the intent the Kansas law conform more closely to the Delaware Limited Liability Company Act and the Kansas Corporation Code. The bill was requested by a study group of the Kansas Bar Association.
The group chose the Delaware law as a pattern because Kansas corporate law is patterned after Delaware code. It is expected litigation of LLC issues will arise more often in Delaware than in Kansas, thus providing a good source for case law interpretation. The bill provides that the act shall become effective Jan. 1, 2000.
General provisions. An LLC may carry on any lawful business, purpose or activity, whether for profit, with the exception of the business of granting policies of insurance or assuming insurance risks or banking. The general definitions contain a definition of the term "majority in interest."
Members and managers are authorized to lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more obligations of, provide collateral for and transact other business with an LLC and have the same rights and obligations as a person who is not a member or manager. An LLC may indemnify and hold harmless any member or manager or other person from and against any and all claims and demands, similar to provisions existing in the Kansas Corporation Code.
The bill establishes rules for the articles of organization, amendments to the articles, filing procedures, merger and consolidation of LLCs...
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