KsAJ Initiatives & Updates

January 2012

KsAJ Special Report: 2012 Legislature


2012 Regular Session Preview
Justice Issues Affecting KsAJ Members' Practices
Legislative Advocacy
KsAJ Policy Agenda

By KsAJ Director of Public Policy Callie J. Denton and KsAJ's Government Affairs Consultants Jennifer Crow & John Polzar

2012 Session Preview

The 2012 session of the Kansas Legislature is shaping up to be one of the most challenging in recent memory, as lawmakers are set to address several significant issues that, even taken individually, have proven to be a rough assignment for previous Legislatures. Leading up to the start of the session, Kansas Governor Sam Brownback has called on the Legislature to: reform the manner in which the state provides Medicaid services to vulnerable Kansans; alter the way the state funds K-12 education; overhaul the public employee pension system; and modify the state’s water conservation laws. These issues, alone, would be a daunting task for lawmakers. But include the governor’s expected effort to reform the state income tax code, the redrawing of Congressional and state legislative districts, and a little thing called elections and we’re likely to see the "perfect storm" here in Kansas.

Tax Reform
It is expected that Governor Brownback will use his 2012 State of the State address to introduce various reforms to the state’s tax code. While details of the governor’s plan have been kept confidential, many believe the governor will propose restructuring the state’s three income tax brackets into a flatter, simpler tax that lowers income taxes for most Kansans, while also eliminating some of the current exemptions and deductions.
The governor has contended his plan will not reduce the state’s overall tax collections, meaning cuts in one area will be made up elsewhere. This has prompted many lawmakers to question who will benefit by the governor’s plan and who will pay more. The success of the 2012 session and the governor’s policy agenda could hinge on that very question.

Kansas Public Employees Retirement System (KPERS)
Currently, the state’s retirement system has an $8.3 billion unfunded liability, meaning the system is underfunded when comparing KPERS assets and future obligations to retirees. Shoring up the system has traditionally been an elusive goal for lawmakers. Last session, the Legislature passed legislation to increase the employer contribution to the fund, as well as increasing contributions made by new employees coming into the system. While this was viewed as a good start to addressing the problem, many acknowledged that more had to be done. The Legislature created a blue ribbon task force to come up with more comprehensive reforms. The task force has recommended the Legislature move KPERS from a defined benefit system to a defined contribution (think 401k) plan. Public employee and teacher organizations have publicly opposed the proposal, citing the volatility of the stock market and uncertainty of a defined contribution plan.
They also argue the new plan would do nothing to address the unfunded liability of the fund. While the Governor and his political allies will push for these changes, reforming KPERS could prove to be just as elusive as in the past.

Probably the most partisan undertaking of the Legislature, redrawing legislative district boundaries is a highly charged process that pits urban vs. rural, conservative vs. moderate with the very political survival of legislators on the line.
Every 10 years, the Legislature redraws Congressional and legislative districts to reflect changes in the state’s population based on the decennial census. The goal is to make districts as numerically equal in population as practical, while preserving minority voting strength, existing political subdivisions and communities of interest. The ideal district size for the Senate is 70,986 residents. For the House, the ideal district size is 22,716. Over the last 10 years, the state population grew 6.1 percent, with notable concentration in the northeastern part of the state. Based on this new data, the state will retain its four Congressional districts. A fight over the 3rd Congressional District is expected. Proposed maps have been circulated that would put Wyandotte County in "The Big First" district with the intent of diluting the influence and representation of the Democratic vote-rich county.  Growth in the northeast may result in up to four House seats and one Senate seat moving east. The state's southeast and western regions could take the loss. A Joint House/Senate Committee on Redistricting held public meetings across the state this summer and the partisan divide is already evident. It's a good thing Kansas has a primary seatbelt law. Legislators are going to need them for this wild, partisan ride.

School Finance
Probably the second most parochial interest of legislators, aside from their own legislative districts, is their school districts. Governor Brownback has stated his intent to rewrite the state’s school finance formula adding another contentious issue to the legislative policy agenda. Early indications show the governor will propose reforms to give school districts wider latitude and more flexibility to raise money locally for schools. Schools would have the ability to raise local property taxes or sales taxes to fund school programs. However, many fear this will lead to a wide funding disparity between urban school districts with large tax bases and rural districts with small local tax bases.
Many education stakeholders view the state’s current formula as adequate, but underfunded. They argue the proposed changes will bring about severe disequalization, which Kansas courts have frowned upon. Education funding makes up over half of all government expenditures. This is another issue that pits urban vs. rural, conservative vs. moderate. However, unlike redistricting where political survival is the focus, the education of all Kansas children hangs in the balance. The stakes couldn’t be any higher.

Medicaid Reform
Like many states, Kansas has continued to grapple with how to meet the state’s obligation to fund Medicaid services. As an entitlement program, the state must fund quality of life services on which vulnerable Kansans depend.
However, the state’s portion of the costs of these programs continues to grow. Governor Brownback and Lt. Governor Jeff Colyer have put forth an initiative called KanCare, which they contend will rein in costs to the state. The centerpiece of the initiative would shift administration of Medicaid programs from state government to private managed care companies. Privatization of these services is intended to control costs and increase efficiencies without sacrificing care. For social service advocates, the devil is in the details. Many acknowledge the difficulty in sustaining the increasing costs, pointing to the thousands of vulnerable Kansans currently on waiting lists for services.  However, handing over the administration of the programs to managed-care companies has raised concerns that services will suffer as those companies look to increase profits for their shareholders. Change is always difficult to accept. But, with thousands of Kansans depending on these services, it is important lawmakers get it right.

2012 Justice Issues

In the midst of the "perfect storm" of urgent and politically charged matters on the Legislature’s 2012 Agenda, there are also a number of issues in the cue that affect KsAJ members’ practices:
Independence of the Judiciary and Selection of Appellate Court Judges Following the 2011 session, legislation eliminating the Nominating Commission for selection of appellate court judges remains in play. In 2011, the House passed bills twice that would eliminate the Nominating Commission and replace it with a federal-style appointment process.  The Senate has refused to hear the bills and has taken a firm position of opposition. In 2012, new bills could be introduced or the 2011 bills (HB 2101 and SB 93, which are both in the Senate) could be revisited. KsAJ opposes changes to the current merit selection process. KsAJ will continue to work in coalition with the Kansas Bar Association and other professional legal-oriented organizations on the issue.

Changes to the Selection Process for the Workers Compensation Board Nominating Committee
In 2011, the Senate Labor Committee passed an amendment to K.S.A. 44-555c at the request of Secretary of Labor Karin Brownlee. The amendment eliminated the Workers Compensation Board Nominating Committee and empowered the Secretary of Labor with filling all vacancies on the Workers Compensation Board, with approval of the Kansas Senate.  The new amendment was a significant change to the selection process and the Senate voted to remove it during floor debate. However, in 2012, a new bill changing the selection process for the Nominating Committee is anticipated. KsAJ will oppose changes to the current selection process.

Tort Claims Act Exemptions
In 2012, legislation is anticipated that will exempt counties from liability for jailed inmates who suffer self-inflicted injuries, except in the case of gross and wanton negligence by county jails. The impetus of the legislation may be the Supreme Court’s recent decision in Thomas v. County Commissioners of Shawnee County et. al., No. 98,586, Sept. 23, 2011. KsAJ opposes changes to the Tort Claims Act that reduce accountability and legal protections for Kansans.

Elimination of the American Rule for Hiring Legal Counsel
Bills establishing the British Rule, or “loser pays,” have been introduced several times in previous sessions but have not advanced. Similar legislation may be introduced again in 2012. KsAJ supports the American Rule, which permits all parties to a dispute to hire their own attorney and negotiate the terms of representation through the private right of contract. KsAJ will oppose legislation that abolishes the American Rule and replaces it with the British Rule.

Exceptions to the Rules of Evidence for Health Care Provider Apologies
Bills amending the rules of evidence to make expressions of fault, sorrow, regret, and apology inadmissible have been considered by the Kansas Legislature since 2008. The Kansas Judicial Council conducted an extensive, substantive review of other states’ apology laws and recommended legislation. In 2011, the Senate Judiciary Committee considered the legislation drafted by the Judicial Council, SB 142, and amended it with clarifying language. The Judiciary Committee also amended the bill to state expressly that waiver of charges is not admissible as evidence of an admission against interest or an admission of fault. Amended SB 142 passed the Senate 39-0. Another apology bill, HB 2069, passed the House and remains in the Senate. Both bills can advance in 2012. KsAJ supports the Judicial Council recommendation as a balanced approach that is fair to all parties. KsAJ will oppose changes to the rules of evidence that permit the concealment of relevant, truthful evidence.

Amendments to the Kansas Consumer Protection Act
In 2011, SB 106 was introduced at the request of the Kansas Chamber. It replaced Kansas’ Consumer Protection Act (KCPA) with federal regulation, essentially gutting the act and making it unenforceable at the state level. Under SB 106, the KCPA would be inapplicable to any transaction “otherwise permitted or regulated by the [FTC] or any other regulatory body or officer acting under [state or federal law].” SB 106 would also apply retroactively. KsAJ testified in opposition to SB 106 when it was heard in the Senate Judiciary Committee, and the committee took no action. SB 106 may be considered again in 2012. KsAJ supports a strong consumer protection act, and will oppose legislation that erodes protections against unscrupulous or unsafe business practices that are harmful to Kansas consumers.

Resolutions to Amend the Kansas Constitution
In 2010, HCR 5036 was introduced at the request of the Kansas Medical Society. It proposed to amend the Kansas Constitution relating to the right to trial by jury. It did not receive a hearing in 2010 and no similar resolution was introduced in 2011. In 2011, HCR 5015 was introduced; it proposed to implement a federal-style appointment process for Supreme Court justices. It did not receive a hearing in 2011, but could advance in 2012. KsAJ opposes both resolutions.

Legislative Advocacy

How do you eat an elephant? One bite at a time.

KsAJ trial lawyers are in a position to be uniquely influential with individual legislators when they work to create opportunities. KsAJ members have an important message about fairness. As attorneys, they have experiences with clients and cases that have made a difference. KsAJ members offer legislators expert insight on complicated bills affecting constituents in the legislator’s district. And KsAJ members are voters.
Legislators will pay attention. However, as with anything of value, building a trust relationship with a legislator takes work. The important thing is to start reaching out. If you have not already done so, engage your senator and representative now. Be in regular contact. Let your legislators know about the issues that concern you, your clients, and your practice. Contact them before the issues advance. It is much easier to discuss the issues before a hearing or a vote is pending.
Here are some tips for working with your senator and representative.

Be a Resource and Stay at the Top of Your Legislators' Call List
When your legislator has a question about the law or the courts, you want to be the first person they think to call or e-mail. If they don’t understand an issue, you want to be the one to explain it to them and help set the record straight.
If you have developed a rapport with your legislator, be sure to return their e-mail or call promptly, especially during session. Their question is likely to be time-sensitive — perhaps less than 12 hours. KsAJ is on the ground at the Statehouse and will coordinate with KsAJ members by providing them with background information about the issues so that they are a valuable resource to their legislators. You are welcome to contact KsAJ staff before returning your legislator’s call if you have questions. Together, KsAJ and KsAJ members can educate legislators on justice issues in Topeka and in their home district.

Understand How Legislators Operate
There are many demands on legislators’ attention. Meeting legislators’ needs for information, within the constraints that they have is critical to effective communication. The days are long during session. The number of bills is significant, the topics are diverse, and the issues are substantive. Attention spans, patience, and time are short. By necessity, legislators must rely on trusted others to “boil it down” and to do it quickly. Legislators may look to legislative colleagues, leadership, or the governor. They also may rely on the “Third House” — special interest groups — to advise them on the impact legislation. (Here is where KsAJ plays an education role.) Last but certainly not least, legislators look to constituents and experts within their own district for input and insight. KsAJ members, as powerful constituent voices, can be especially influential if they communicate concisely, clearly, and honestly.

Don’t Get Bogged Down in Partisanship
The party with the most elected members is in control, and that’s a big deal at the Statehouse. However, partisanship is too often a distraction for constituents who don’t feel politically aligned with a legislator. Legislators still need to hear from their constituents, regardless of whether the constituent is the same party or not. Plato said, “One of the penalties for refusing to participate in politics is that you end up governed by your inferiors.” Elections and the Legislative session will continue whether we choose to engage or not. We must stay in the game, and communicating with legislators as constituents is a proactive approach to seeking change. It is important to remember that justice issues are non-partisan. Justice issues can be discussed in terms that resonate for legislators across the political spectrum, such as: Responsibility. Accountability. When no one is accountable, no one is safe. It’s difficult sometimes. Keep trying to approach your legislator, and be approachable, even if you feel there is political dissonance. Keep an open door.

Be a Persistent Squeaky Wheel
There are lots of ways to stay on top of what your legislators are doing and stay in communication. Ask to be added to their constituent newsletter lists by contacting their Statehouse offices. Take note of your legislators’ contact information. Some legislators are great with e-mail and if so, e-mail them. If you don’t get a response, try an old-fashioned letter. Consider your stationery. Your law firm stationery sends a message; so does a handwritten note. You might also want to try a phone call. During session, returning calls may be difficult for your legislator. You might have better luck reaching your legislator on the weekend, at home. Also, take note of any “Eggs & Issues” events your legislator announces. Such constituent forums are frequently scheduled in the district on weekends. Attend, introduce yourself, and make a connection. Many legislators have adopted social media tactics such as Facebook and Twitter. If you are comfortable with these media and your legislators maintain them, get involved. Communicate with them and monitor what they are doing. Once you’ve established a relationship, maintain it. Let your legislator know you read their newsletters. Ask questions. Send them information about civil justice and workers compensation matters—bite-size pieces, factoids, or tidbits that tell a story. Tell them if a bill would have affected one of your clients or cases, and how. Tell them you appreciate their work on behalf of your community. Let them know if you agree with a stand they’ve taken — not just if you disagree! The goal is to establish yourself as a credible resource and once there, remain at the top of your legislators’ call list.

KsAJ is here to help. Weekly session updates provide information about bills KsAJ is tracking and issues of concern that you can bring to your legislators’ attention. Please contact Public Policy Director Callie Denton if you have questions at cdenton@ksaj.org or 785-232-7756.

KsAJ'S Policy Agenda

We’ll work to protect Kansas Courts. KsAJ supports the independence of the judiciary. KsAJ supports adequate funding for the judicial branch to assure the fair and timely administration of justice. KsAJ supports the current merit selection process for selecting district court and appellate court judges, and Supreme Court justices.

  • The Nominating Commission process works. KsAJ will continue to oppose legislation that eliminates the Nominating Commission for appellate court judges in favor of a “federal style” appointment process. KsAJ will oppose resolutions proposing to amend the Kansas Constitution relating to the selection of Supreme Court justices.
  • Funding for the Judicial branch must be maintained. KsAJ will oppose legislation that erodes funding for the judicial branch to the extent that the operations of the court and access to justice are impaired.

We’ll promote personal responsibility, accountability, and the Constitutional rights of all citizens. When no one is accountable, no one is safe. KsAJ supports laws that promote the truth and protect the right to trial by jury.

  • KsAJ will defend the American Rule because it protects legitimate claims. Under the American Rule all parties to a dispute may hire their own attorney and negotiate the terms of representation through the private right of contract. KsAJ will oppose any proposals that erode the American Rule or the rights of any party to contract for legal representation.
  • KsAJ will support the Constitutional Right to Trial by Jury. Citizen jurors are in the best position to enforce personal responsibility. KsAJ opposes government intervention that limits the power of citizen juries, such as non-economic damage caps. KsAJ will oppose resolutions amending the Kansas Constitution that limit constitutional rights or threaten the independence of the judiciary.
  • KsAJ will support legislation that enforces accountability. Exemptions, exceptions, and special rules just let wrongdoers off the hook.

We’ll oppose further changes in the Workers Compensation Act. KsAJ supports a balanced Workers Compensation system that provides reasonable and adequate protection for Kansans injured on the job, including a fair process for review and consideration of Workers Compensation claims.

  • No more changes in 2012. 2011 HB 2134 was a significant change in law. The new law needs time to be fully evaluated by ALJs and attorneys for both injured workers and employers before any new legislation is
  • No changes to the selection process for Workers Compensation Appeals Board members. KsAJ will oppose legislation that further erodes the Workers Compensation Act to the detriment of working Kansans, including changes to the selection process for the Workers Compensation Appeals Board.

We’ll defend Kansas consumers against deceptive and unscrupulous business practices. KsAJ supports tough laws that assure Kansas consumers’ financial protection as well as their physical health, safety and security. KsAJ supports laws that punish individuals or businesses that engage in unscrupulous or unsafe business practices, or act deceptively or unconscionably.


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