judiciary 2007 audit

8/8/2019 Judiciary 2007 Audit

1/34

December 2007

Special committeeS

Report of theSpecial Committee on Judiciary

to the

2008 Kansas Legislature

chairperSon: Senator John Vratil

Vice-chairperSon: Representative Mike ONeal

rankingminoritymember: Senator Greta Goodwin

othermemberS: Senators Phillip Journey, Julia Lynn, and Derek Schmidt; and

Representatives Sydney Carlin, Marti Crow, Lance Kinzer, Bill Light, Jan Pauls, Marc

Rhoades, and Vern Swanson

StudytopicS

Operations of the Board of Healing Arts

Kansas Administrative Procedure Act and the Act for Judicial Review of Agency ActionsOperations of the Kansas Parole Board

Medical Assistance for Trust Beneciaries

Subrogation Clauses in Health Insurance Contracts

Change in Judge in a Civil Action

Allow a Parent to Remove a Child from the Custodial Parent to Protect the Child from

Abuse

Aggravated Incest

Establishment of District Attorney Ofces

Submission of Blood or Other Biological Samples to the Kansas Bureau of Investigation

Settle Damages Between Landowners and Their Farm Tenants and Gas and OilOperators

Vehicular Homicide

Indemnication Agreements

Release of Inmates to House Arrest by the Secretary of Corrections

Child Care Custody-Military Deployment


2/34

Kansas Legislative Research Department 2007 Judiciary5-1

background

The Committee was directed to review

the recent Legislative Post Audit report on

operations of the BOHA. The Committee

also was called on to study the appointment of

members to the BOHA; the professions covered

by the BOHAs jurisdiction; the nature, fairness

and quality of the BOHAs investigations; and

recommendations regarding implementation of

graduated sanctions.

committeeactiVitieS

Chris Clarke, Performance Audit Manager,

Legislative Division of Post Audit, reviewed

the ndings, conclusions, and recommendations

of the Legislative Division of Post Audit as

of October 2006. She reviewed the mission,

membership and the responsibilities of BOHA.

Post Audit reviewed three questions covering

key issues regarding the complaint-handling

system of the BOHA:

Does the BOHA conduct timely and thorough

investigations of complaints it receives,

and take timely and appropriate actions to

correct regulatory violations it nds?

Does the BOHA conduct background

investigations that would enable it to

know whether a potential licensee has had

malpractice or negligence problems in

another jurisdiction before being licensed in

Kansas?

Special Committee on Judiciary

operationSofthe boardof healingartS

concluSionSand recommendationS

It was the consensus of the Committee that the Board of Healing Arts (BOHA) has made a

reasonable, good faith response to the recommendations of the Post Audit Report.

The BOHA has proposed statutory language that would authorize the Board to accomplish

competency maintenance in a nondisciplinary setting. The Committee recommends legislation on

alternative sanctions as recommended by Larry Buening, Executive Director of the BOHA.

The Committee also supports the bills authorizing ngerprinting, 2007 SB 81 and 2007 SB 107,

which currently are in the House. The Committee recommends that the Committee where thebills are assigned take appropriate action. It was further recommended that the Executive Director

of the BOHA, report the status of items under advisement to the Chairpersons of the House and

Senate Judiciary Committees and the House Health and Humans Services Committee and Senate

Public Health and Welfare Committee.

The Committee recommends the alternative sanctions legislation be introduced in the House.

Proposed Legislation: The Committee recommends the alternative sanctions legislation be

introduced in the House.


3/34


Does the BOHA composition give fair

representation to all healing arts practices

and, if not, what could be done to address

any deciencies?

The conclusions and recommendations of

these questions are contained in the Performance

Audit Report.

Larry Buening, Executive Director, BOHA,

introduced to the Committee, the Chairperson,

Vice Chairperson, and various members of the

BOHA. He reviewed actions taken by the Board

in response to the recommendations made in the

October 2006 Post Audit Report.

Mr. Buening expressed support for 2007 SB

81, which, as amended by the Senate Judiciary

Committee, would authorize the BOHA to

require new licensees to be fingerprinted

and to submit the ngerprints to the Kansas

Bureau of Investigation (KBI) and the Federal

Bureau of Investigation (FBI), for a national

criminal history record check for the purpose of

determining initial qualications and suitability

to obtain a license. The conferee also expressed

support for SB 107, as amended by the Senate

Committee on Public Health and Welfare, toauthorize the ngerprinting requirement to apply

to the State Board of Nursing. In addition, the

bill authorizes the State Board of Nursing to set

a fee for ngerprinting in an amount necessary to

reimburse the Board for the cost of ngerprinting

and criminal history record check and to deposit

such fees to the Criminal Background and

Fingerprinting Fund created by the bill.

The Committee submitted questions

regarding the guidelines used in investigation of

patient complaints, availability of information to

the public, website availability, and investigation

of malpractice suits.


It was the consensus of the Committee

that BOHA has made a reasonable, good faith

response to the recommendations of the Post

Audit Report.

The BOHA has proposed statutory language

that would authorize the Board to accomplish

competency maintenance in a nondisciplinary

setting. The Committee recommends legislationon alternative sanctions as recommended by

Larry Buening.

The Committee also supports the bills

authorizing ngerprinting, 2007 SB 81 and 2007

SB 107, which currently are in the House. The

Committee recommends that the Committee

where the bills are assigned take appropriate

action. It was further recommended that Mr.

Buening, as Executive Director of the BOHA,

report the status of items under advisement to the

Chairpersons of the House and Senate Judiciary

Committees and the House Health and Humans

Services Committee and Senate Public Health

and Welfare Committee.

The Committee recommends the alternative

sanctions legislation be introduced in the

House.


4/34


background

The Committee was charged with

the responsibility of studying the Kansas

Administrative Procedure Act (KAPA) and the

Kansas Judicial Review and Civil Enforcement

Act (KJRA) in the light of the passage of 2007

SB 351 which expanded the use of the Ofce of

Administrative Hearings (OAH).

The KAPA (KSA 77-501 et seq.) applies only

to those state agencies whose statutes expressly

provide that KAPA will apply. Under KAPA, the

object is to conduct a fair and impartial hearing

to adjudicate a claim by a person who contests

a state agency action that has impacted his or

her legal rights. The KJRA (KSA 77-601 et

seq.) provides the exclusive means of obtaining

judicial review of an agency action. Only those

persons who have exhausted their administrativeremedies may seek review under the KJRA.W.S.

Dickey Clay Mfg.. Co. v. Kansas Corp. Commn ,

241 Kan. 744, 751, 740 P.2d 585 (1987). Those

who appeal an agency action to the district court

pursuant to the Act may appeal the district court

decision to the appellate courts, just as parties do

in other civil cases (KSA 77-623).

The Committee also reviewed whether the

ndings of the OAH should control or be given

deference on appeal and whether the law should

be further amended to prohibit agency heads

or boards from serving as presiding ofcers in

administrative hearings. Under the current law,

agency heads retain the right to make a nal

decision.

Finally, the Committee examined whether the

ndings of fact by the OAH should be the nal

word in the administrative hearing process.

committeeactiVitieS

The Committee conducted a hearing on the

topic on August 28, 2007. No conferees appeared

in support of a proposal to transfer the authority

of an agency head to the OAH. Confereesin opposition to the proposal to transfer the

authority of an agency head to OAH were Sandy

Praeger, Commissioner of Insurance; Rick

Fleming, General Counsel for the Ofce of the

Securities Commissioner on behalf of his agency

and 17 other state agencies; Thomas Thull, Bank

Commissioner; Virginia Powell, CPA and past


kanSaSadminiStratiVe procedureactand

the kanSaS Judicial reVieWand ciVil enforcementact


The Committee concluded that legislation should be drafted to clarify two points: (1) judicial

review shall be on the entire record, including the record of any adjudicative hearing conducted by,

or initial orders issued by, a presiding ofcer from the Ofce of Administrative Hearing within the

Department of Administration in addition to the record of the trial order under review; and (2) the

burden of proof the agency should use where a substantial property right is affected, e.g., renewal

or revocation of license or permit, is clear and convincing evidence.

Proposed Legislation: The Committee recommends one bill be introduced in the House.


5/34


Chairperson of the Board of Accountancy; and

Sherry Diel, Executive Director of the Kansas

Real Estate Commission.

Professor Rick Levy, member of the Kansas

Judicial Council Administrative Procedure

Advisory Committee, provided neutral testimonyon the topic.

Sandy Praeger, Commissioner of Insurance,

opposed 2007 SB 351 and any other bill that

would transfer the Insurance Commissioners

authority to regulate insurance companies

and agents to attorneys in the Department of

Administration. She cited KSA 77-503, which

provides that the KAPA was originally limited to

creating, only procedural rights and imposes

only procedural duties. In 2004, KAPA wasexpanded with the creation of the OAH. In the

Commissioners opinion, an agency should be

able to make a nal decision after a fact-nding

hearing. The Commissioner opined that some

of the proposals being considered take away the

accountability of the Department. She urged

the Committee to reject the elimination of an

agency head serving as a presiding ofcer stating

it would remove important protections currently

in existence for insurance consumers and be a

costly burden on the industry.

John Campbell, General Counsel, Department

of Insurance, enumerated the various steps

necessary to revoke an agents license in response

to Chairperson Vratils request for details on the

revocation process. Mr. Campbell explained

that the process is started with a complaint

from a consumer or an agent, an investigation is

conducted by the Fraud Department within the

Insurance Department, and the nal summary is

completed and handed to the Commissioner for

disposition.

Rick Fleming, General Counsel, Ofce of

the Securities Commissioner, appeared on behalf

of the following state agencies in opposition to

transferring the authority of an agency head to the

OAH: Behavioral Sciences Regulatory Board,

Board of Accountancy, Board of Adult Care

Home Administrators, Board of Barbering, Board

of Cosmetology, Board of Emergency Medical

Services, Board of Examiners in Optometry,

Board of Healing Arts, Board of Mortuary Arts,

Board of Nursing, Board of Pharmacy, Board

of Technical Professions, Board of Veterinary

Examiners, Dental Board, Department of Credit

Unions, Real Estate Appraisal Board, Ofce

of the Securities Commissioner, and the State

Banking Board and Ofce of the State Bank

Commissioner. The agencies also opposed any

proposal to make ndings of the OAH binding

upon the agency heads. He provided possible

solutions to any perceived weaknesses in KAPA,

and suggested consideration be given to Sections

402 and 409 of the revised Model Act. He

stated prohibiting agency heads from serving

as presiding ofcers in administrative hearings

would change the fundamental character of

regulatory agencies in Kansas. Additionally,

the negative impact on agencies budgets will be

signicant if agencies must use a outside hearing

ofcer for every routine motion, prehearing

conference and hearing, as well as hiring expert

witnesses.

Thomas Thull, Bank Commissioner,

described the process of hearings in his agency

and the need for an attorney with a nancial

background.

Virginia Powell, CPA, past chairperson of

the Board of Accountancy, voiced her opposition

to the proposal which would prohibit agency

heads from serving as presiding ofcers in

administrative hearings. She noted the ability of a

Board member to bring experience and familiarity

into the equation will, more often than not, result

in practical, reasonable resolutions. The cost of

retaining administrative hearing ofcers also

would adversely impact the budget.

Sherry Diel, Executive Director, Kansas

Real Estate Commission, opposes any revision

to KAPA that would preclude members of

commissions and boards from serving as the


6/34


presiding ofcer. She set forth the reasons for

opposing revisions to KAPA, and concluded

that the Commission does not oppose reasonable

protections being included in KAPA to ensure

that applicants and licensees are treated fairly.

Professor Rick Levy, member of the KansasJudicial Council Administrative Procedure

Advisory Committee, presented the views of the

Administrative Procedure Advisory Committee on

the important issues surrounding the relationship

between the OAH and administrative agencies.

The purpose of his testimony was to provide

general information to assist the Committee in

its review and to inform the Committee of the

advisory committees views on this difcult

issue. He cited the legislative options and offered

suggestions for amending the relevant provisions

of Kansas law.

On November 2, 2007, the Judicial Council

Administrative Committee provided the following

revised and expanded recommendations:

Agency heads should retain the option to

hear cases that the agency considers to

present important policy issues or to require

agency expertise for resolution;

Agencies should have the capacity to

review a hearing ofcer decision in order to

make policy and ensure the consistency of

decisions with agency policy;

Abuse by agencies should be constrained

by enhanced judicial review of reasoned

decision-making when an agency has

reversed a hearing ofcer;

The separation of functions and ex parte

communication provisions of KAPA

should be strengthened so as to preclude

investigatory or prosecutorial personnel

from having any involvement with the

adjudicatory process; and

For disciplinary actions in occupational

and professional licensure cases involving

individuals, the burden of proof should be

by clear and convincing evidence.


The Committee concluded that legislation

should be drafted to clarify two points: (1) judicial

review shall be on the entire record, including

the record of any adjudicative hearing conducted

by, or initial orders issued by, a presiding ofcer

from the Ofce of Administrative Hearings

within the Department of Administration in

addition to the record of the trial order underreview; and (2) the burden of proof the agency

should use where a substantial property right is

affected,e.g., renewal or revocation of license or

permit, is clear and convincing evidence.


7/34


background

The Kansas Parole Board (KPB) has existed

since the 1800s and has been known by various

titles, such as:

1885Board of Pardons

1903Prison Board

1957Board of Probation and Parole

1974Kansas Adult Authority

It received its current name in 1986.

The current KPB consists of three members

with no more than two members of the same

political party. Statutes governing the KPB are

to be found at KSA 22-3707 et seq.

The charge of the 2007 Special Committee

on Judiciary was to study the workings of theKPB to determine whether any changes need

to be made, review the KPB case load to help

determine whether the Board is the correct size,

and if the KPB is still needed in light of sentencing

guidelines. Finally, the Committee was charged

to study whether the Board should continue to

be empowered to pass parole-eligible inmates

indenitely when the inmates have met all of

the programing and treatment criteria of their

agreement with the Department of Corrections.

committeeactiVitieS

Paul Feleciano, Chairperson, KPB, reviewed

the history and composition of the KPB. The

vision and mission of the KPB is to contribute

to the safety of Kansas citizens by providing


operationSofthe kanSaS parole board


After considerable discussion, the Committee expressed concern about the fact that post-guideline

offenders seem to be released earlier than pre-guideline offenders, and this has an adverse effect

on pre-guideline offenders. The Committee recommends the addition of three criteria to the Parole

Suitability Factors found in statute:

Proportionality between pre- and post-guideline offenders;

Risk factor as revealed by the Level of Service Inventory-Revised (LSI-R); and

An opportunity for input from institutional personnel.

Additionally, the Committee recommends that at least two members be present, and preferably all

three members should be in attendance, at public comment sessions, particularly while considering

high prole cases.

Proposed Legislation: The Committee recommends one bill be introduced in the Senate.


8/34


sound, rational decision making in extending

the privilege of parole to offenders. The various

work areas and the workload of the KPB were

discussed. These work areas include: (1) parole

suitability hearings; (2) special hearings; (3)

nal revocation hearings; (4) public comment

sessions; (5) full board reviews; (6) special

conditions of post-incarceration supervision;

(7) offender release planning; (8) le reviews;

(9) travel; and (10) committees and special

projects.

Robert Sanders, member, KPB, gave more

detail on how the Board operated in the various

work areas and elaborated on considerations

made in parole requests. He provided information

on the Level of Service Inventory-Revised

(LSI-R) method of assessing risk to reoffend.

On questioning, he noted the parole hearings

are closed to the public except for the public

comment sessions. Parole Board decisions are

not subject to appeal by another board.

Patricia Biggs, member, KPB, explained the

workload measures and provided graphs and

data on the prison population subject to release

by KPB. She stated that the travel and time spent

by the KPB monthly to conduct public comment

sessions in various locations in the state and thevarious offender hearings is considerable.


After considerable discussion, the

Committee expressed concern about the fact

that post-guideline offenders seem to be released

earlier than pre-guideline offenders, and this has

an adverse effect on pre-guideline offenders.The Committee recommends the addition of

three criteria to the Parole Suitability Factors

found in statute:

Proportionality between pre- and post-

guideline offenders;

Risk factor as revealed by the LSI-R; and

An opportunity for input from institutional

personnel.

Additionally, the Committee recommends that

at least two members be present, and preferably

all three members should be in attendance, at

public comment sessions, particularly while

considering high prole cases.

The Committee recommends one bill be

introduced in the Senate.


9/34


background

The Committee was charged with the

responsibility of studying 2007 SB 32 which

would have amended current law regarding the

eligibility criteria for medical assistance for trust

beneciaries. The bill would have claried that

resources from a trust executed on or after July

1, 2004 would be considered as an available

resource in determining eligibility for a trust

beneciary for medical assistance.

committeeactiVitieS

The Committee held a hearing on the topic

on August 27, 2007. Proponents of the proposal

were Eric N. Anderson, Attorney; and Molly M.

Wood, Attorney. Opponents to the proposal were

Dr. Marcia Nielsen, Executive Director, Kansas

Health Policy Authority; and Reid Stacey,

Senior Medicaid Counsel, Kansas Health Policy

Authority.

Eric Anderson, Attorney, Clark, Mize &

Linville, Salina, offered four recommenda-

tions for changes in Senate Bill 32 which was

introduced in the Senate Judiciary Committee in

2007. He reasoned it is critical to the practical

application of any statute concerning trusts

that trustees of trusts drafted prior to 2004 be

permitted to take the appropriate steps to amend

the trust in light of subsequent statutory changes.

He stated that he believes the Kansas Uniform

Trust Code permits such amendments.

Molly M. Wood, Attorney, Stevens & Brand,

Lawrence, noted her concerns were addressed by

Mr. Anderson, but she commented briey on thechanges made in 2004 to KSA 39-709(e)(3). She

stated the changes invented a gratuitous technical

trap by requiring magic words to create a

supplemental needs trust. She also discussed the

meaning of contemporaneous in the context of

the same law. She urged consideration of the

changes suggested by Mr. Anderson.

Dr. Marcia Nielsen, Executive Director,

Kansas Health Policy Authority (KHPA),explained the Authoritys objectives, noted the

programs transferred to KHPA in 2006, and

named the voting and nonvoting members of the

Board. She provided background information on

the 2004 law and how the proposed changes in

SB 32 would have a possible negative impact.

She informed the Committee that the Kansas


medicalaSSiStancefortruSt beneficiarieS


The Committee concluded that it was never the intent of the Legislature to lay a trap for people

who are creating trusts; and that it was always the intent of the Legislature for the person making

the trust to have the right to make it supplemental to public assistance. The Committee agreed on

the denition for the term public assistance. Public assistance includes, but is not limited to,

Medicaid, Medicare and the Social Security Act. It recommends that legislation be introduced to

accomplish the intent of the Committee.



10/34


Judicial Council would be meeting on September

21, 2007, to study this matter.

Reid Stacey, Senior Medical Counsel,

KHPA, explained the KHPA-suggested

amendments are designed to deal with three

main issues related to Medicaid eligibility and

discretionary trusts: (1) the law, as amended in

2004, does not grandfather in older trusts; (2)

the law requires a specic reference to Medicaid

for a trust to be considered a Medicaid-sheltering

trust; and (3) the overly restrictive phrase,

funded exclusively, in KSA 39-709(e)(3). He

provided a detailed explanation of the suggested

amendments.

On September 19, 2007, a balloon amendment,

which had been agreed upon by the proponents

and opponents of SB 32, was presented to

the Committee for review. The amendment

would require that at the time of the creation or

amendment of the trust, the trust state a clear

intent that it is supplemental to public assistance

and would not be available for medical reasons.

Denitions of public assistance and medical

assistance were not included in this balloon

amendment. However, the Committee stated the

denition of public assistance includes, but is

not limited to, Medicaid, medical assistance, orTitle XIX of the Social Security Act.


The Committee concluded that it was never

the intent of the Legislature to lay a trap for people

who are creating trusts; and that it was always the

intent of the Legislature for the person making

the trust to have the right to make it supplemental

to public assistance. The Committee agreed onthe denition for the term public assistance.

Public assistance includes, but is not limited to,

Medicaid, Medicare and the Social Security Act.

It recommends that legislation be introduced to

accomplish the intent of the Committee.


11/34


background

The Committee was charged by the

Legislative Coordinating Council with the

responsibility of studying 2007 SB 44 during

the interim. The bill would permit health care

insurers to include subrogation clauses in health

insurance contracts. A subrogation clause would

allow a health care insurer to seek reimbursement

from the responsible party for a claim it paid to

the insured.

The Bill was introduced during the 2007

Session by Senator Phil Journey and was referred

to the Senate Judiciary Committee. No actionwas taken.

committeeactiVitieS


of Subrogation Clauses in Health Insurance

Contracts on September 18, 2007. Conferees

appearing in support of the proposal were Senator

Phil Journey and Ryan Woody, Attorney.

Conferees appearing in opposition to the

proposal were Jim Clark, Kansas Bar Association;

Michael Helbert, member of the Kansas Trial

Lawyers Association; and Corrie Edwards,

Kansas Health Consumer Coalition. Ernest

Kutzley, AARP, submitted written testimony in

opposition to the proposal.

Senator Journey provided the Committee

with background information on the issue.

He testied that 2007 SB 44 was drafted as

an alternative to the collateral source proposaland would work signicantly differently than

collateral source. The various provisions

authorized to, and required by a health insurance

carrier were set out. Subrogation is a concept

that has been successfully applied in other

areas of reimbursement such as insurance

benets paid involving automobile accidents

and medical services provided to Medicaid or

Medicare recipients. Currently, administrative

rules propounded by the Kansas Department

of Insurance prohibit subrogation for medical,

surgical, hospital, or funeral expenses (KAR

40-1-20).

Ryan Woody, attorney with the national

subrogation firm Matthiesen, Wickert &

Lehrer, S.C., of Hartford, Wisconsin, noted

that health insurance subrogation refers to the

efforts by health care insurers to recover money

by virtue of the rights of its insured against a

liable third party. He reviewed the importanceof health insurance subrogation and the views

of both courts and legal scholars who agree that

subrogation affects premiums. He commented

that allowing health insurance subrogation will

reduce the number of lawsuits. He concluded

that allowing health care insurers to recoup funds

through subrogation will not cure the health care


Subrogation clauSeSin health inSurance contractS


The Committee opposes the proposal at this time.

Proposed Legislation: None.


12/34


crisis, but it will help ght the trend in rising

health care costs and premium payments.

Jim Clark, Legislative Counsel, Kansas

Bar Association (KBA), stated that the KBA

has a long-standing legislative policy against a

statutory right of subrogation by health insurance

companies. He presented the KBAs objections

to the bill.

Michael Helbert, Kansas Trial Lawyers

Association (KTLA), noted current state law

assures that, where federal law does not otherwise

apply, injured Kansans who have responsibly

maintained their health insurance coverage are

protected from being sued by their insurance

company for reimbursement of medical expenses.KTLA recommends that no change be made to

current state law prohibiting subrogation.

Corrie Edwards, Executive Director, Kansas

Health Consumer Coalition, expressed opposition

to SB 44. She stated that subrogation is not fair

to Kansas health consumers; compensation is

intended to be used by consumers for recovery

and future costs; recovery dollars compensateconsumers for multiple expenses beyond

medical; and this is turning the concept of health

insurance on its head.

Written testimony in opposition to the

proposal was provided by AARP Kansas State

Ofce.


The Committee opposes the proposal at this

time.


13/34


background


responsibility of studying 2007 SB 86, which

would require a change of a judge in a civil action

if a written application is led by a party to the

litigation. The application would not require an

allegation or proof of any cause for the change to

be granted. The change would be granted only

once and would be mandatory.

committeeactiVitieS


on September 18, 2007. Gary Carnivale, citizen,

was the only proponent. The Honorable Thomas

Foster, Kansas District Judges Association

(KDJA), was the only neutral conferee.

Gary Carnivale, citizen, Johnson County,

Kansas, described the current statutes relating

to change in judge in a civil action and related

his support of SB 86. However, he is concerned

with the time limitation, as the bill is written,

on requesting a change of judge. He believes

this potential legislation could add an additional

check and balance to the judicial system. He

asked that consideration be given to proposing a

law that allows litigants to request a change of

judge once, without cause. He noted currently

arguments are presented and decisions are made

in the judges chambers where there is no ofcial

record. To avoid any appearance of impropriety,

evidence should be presented and decisions made

in open court, and on the record.

The Honorable Thomas Foster, District

Judge Division No. 12, and member of the

KDJA Executive Committee, presented personal

comments and observations about SB 86. He

stated the KDJA Executive Committee has taken

a neutral position on the bill. He stated positive

considerations of the bill are: (1) due process; (2)

judicial evaluation; and (3) attorney preference.

He also stated these negative considerations

of the bill: (1) extra cost involved in districts

with one or two district judges; (2) specialized

dockets not conducive to changing judges upon

request; (3) centralized dockets; (4) negativity; (5)

access to justice; and (6) administrative statutes

versus court rule. He suggested establishing a

committee of judges and attorneys to develop a


changein Judgeina ciVilaction


The Committee concluded there was little or no support for the proposed legislation because of the

concerns in rural and urban areas. The Committee also concluded that there may be a difference of

interpretation of the existing statute and clarication from the Legislature is necessary. Therefore,

the Committee recommends the current recusal statute be redrafted so that it clearly requires the

litigant to prove the allegations with substantive evidence.

The recommendation by the Committee is intended to facilitate a discussion on the issue and is not

intended to indicate a preference for one interpretation of the statute over the other.

Proposed Legislation: The Committee recommends one bill be introduced in the House.


14/34


court rule that would consider the benets and

costs of implementing a change of judge rule

in appropriate circumstances.

concluSionSandrecommendationS

The Committee concluded there was little or

no support for the proposed legislation because

of the concerns in rural and urban areas. The

Committee also concluded that there may be

a difference of interpretation of the existing

statute and clarication from the Legislature

is necessary. Therefore, the Committee

recommends the current recusal statute be

redrafted so that it clearly requires the litigant to

prove the allegations with substantive evidence.

The recommendation by the Committee is

intended to facilitate a discussion on the issue

and is not intended to indicate a preference for

one interpretation of the statute over the other.


15/34


background

The 2007 Special Committee on Judiciary was

directed by the Legislative Coordinating Council

to review the topic dealing with allowing a parent

to remove a child from the custodial parent to

protect the child from abuse. The review entails

a study of 2007 SB 182, which would amend

KSA 21-3422, to allow a parent to remove a child

from the custodial parent or guardian on good

faith and with reasonable belief that the action is

necessary to protect the child or the parent from

being subject to mistreatment or abuse. The

non-custodial parent would have to report the

removal action to the district or county attorney

as soon as circumstances allow. Under this set

of facts, the parent would enjoy immunity and

no arrest could be made. The same provisions

proposed in KSA 21-3422 (interference with

parental custody) would be allowed in KSA

21-3422a (aggravated interference with parentalcustody).

committee actiVitieS


on August 16, 2007. At that time, the Committee

heard from proponents of the measure which

included Sandra Barnett, Executive Director,

Kansas Coalition Against Sexual and Domestic

Violence (KCSDV), who urged the Committee

to recommend necessary updates to the statutes.

Other proponents included Sue Osthoff, Director,

National Clearinghouse for the Defense of

Battered Women, Philadelphia, PA; Sandra

Murphy, Managing Attorney for the Battered

Womens Justice Project; and Merle Weiner,

Professor of Law, University of Oregon School

of Law.

Those conferees who appeared in opposition

to the bill included Ron Nelson, Attorney,

Shawnee Mission, Kansas; N. Trip Shawver,

Attorney, Wichita, and President of the Kansas

Bar Association Family Law Section; Ed

Klumpp, Kansas Association of Chiefs of Police,

who indicated that a time frame is needed so law

enforcement ofcers can determine fault; andJacqie Spradling, Assistant Attorney General.

Written testimony in opposition to the bill

was submitted by Steve Kearney, Executive

Director, Kansas County and District Attorneys

Association (KCDAA). Opposition centered

around the problems such a measure would

raise.


interferenceWith parental cuStody


The Committee has concluded there has been no evidence that the problem exists in Kansas;

however, the consensus of the Committee is that the matter needs further study. It was suggested

the interested groups should confer and try to reach an agreement on any proposed legislation.

It was the consensus of the Committee to make no recommendation pursuant to the written request

of Sandra Barnett, Kansas Coalition Against Sexual and Domestic Violence.

Proposed Legislation:None.


16/34


Sandra Barnett, at a meeting on September

19, 2007, presented the Committee with

suggested new language for inclusion into KSA

21-3422, interference with parental custody,

and KSA 21-3422a, aggravated interference

with parental custody. This proposed language

was drafted with the assistance of the Attorney

Generals Ofce, but was not endorsed by the

Attorney General at this time.

Written testimony from the Ofce of the

Attorney General was provided to the Committee

and set forth a balloon amendment to the language

in 2007 SB 182. The Attorney General and

the KCSDV have agreed to suggest adding the

language without having legal justication or

excuse to the statute which would accomplish

their goal of creating a defense for a parent who

justiedly removes a child from the custody of

another parent.

A majority of the Committee expressed an

interest in creating an afrmative defense rather

than providing absolute immunity to a parent

who removes a child from the custodial parent in

order to protect the child from abuse. Information

was provided that 30 states have some form of

afrmative defense.


The Committee has concluded there has been

no evidence that the problem exists in Kansas;

however, the consensus of the Committee is

that the matter needs further study. It was

suggested the interested groups should confer

and try to reach an agreement on any proposed

legislation.

It was the consensus of the Committee tomake no recommendation pursuant to the written

request of Sandra Barnett.


17/34


background


responsibility of studying 2007 SB 233

concerning aggravated incest. The bill would

decrease the minimum age of the victim of the

offense from sixteen years of age to fourteen. It

also would increase the penalty for aggravated

incest from a severity level 5, person felony to

a severity level 1, person felony. Under current

law, aggravated incest includes lewd fondling

with a person who is at least sixteen years of age

but under the age of eighteen and who is related

to the offender as a biological, step, or adoptive

relative.

committeeactiVitieS


on August 16, 2007. Proponents of the bill were

Senator Peggy Palmer and Ervin Grant, Paula

Fritschen, Jack Dickson, and Marilyn Wolgemuth

from the Alliance to Recognize and End Abuse

(A.R.E.A.).

The proponents from A.R.E.A. contend that

the crime of aggravated incest should carry the

same penalty as the crime of rape. Additionally,

the proponents from A.R.E.A. asked the

Committee to strike the minimum age restriction

in the bill so that the crime of aggravated incest

would be applicable when any victim related to

the offender is under the age of eighteen.

Conferees who provided neutral testimony

were Ed Klumpp, Kansas Association of Chiefs

of Police; Helen Pedigo, Executive Director of the

Kansas Sentencing Commission; Sandra Barnett,

Executive Director of the Kansas Coalition

Against Domestic and Sexual Violence and

Steve Kearney, Executive Director of the Kansas

County and District Attorneys Association.

Ed Klumpp informed the Committee

that a number of criminal statutes, other than

aggravated incest, could be charged against

an offender when a child is a victim. Those

statutes include: rape, indecent liberties with a

child, aggravated indecent liberties with a child,

aggravated criminal sodomy, aggravated sexual

battery, and unlawful sexual relations. He was

concerned that the proposed changes do not meet

sentencing proportionality concerns, and that

the proposed changes are not consistent with

the other criminal statutes designed to protect

children.

Helen Pedigo informed the Committee that a

change to the aggravated incest statute pursuant


aggraVated inceSt


The Committee decided to make no recommendation on the topic of aggravated incest to the

2008 Legislature. However, the Committee agreed that a letter would be sent to the Kansas

Criminal Code Recodication Commission pointing out the problems perceived by the Committee

in the incest statutes and ask the Recodication Commission to address those problems in the

recodication of the Criminal Code Act.

Proposed Legislation: None.


18/34


to the bill would result in 3 additional prison

beds in FY 2008 and 57 additional prison beds

in FY 2017.

Sandra Barnett agreed with the proponents

that sex crimes against a family member should

carry a penalty equal to that of a sex crime

against a non-family member. She provided two

alternatives to the bill to equalize the penalty.

Steve Kearney testied that the Kansas

Recodication Commission and the Kansas

Sentencing Commission are studying the criminal

code and proportionality of sentencing issues. He

urged the Committee to delay a recommendation

for further study by the Commissions.

On August 27, 2007, the Committeediscussed that the bill is well-intended but fraught

with unintended or unforeseen consequences.

Specically, several members were concerned

that the bill would nullify the protections enacted

with the passage of Jessicas Law (2006 HB

2576) which establishes minimum mandatory

sentences for sex offenders where the victim is

a child.

The Chairperson distilled the Committees

discussion into three courses of action: (1)

do nothing; (2) rewrite the Criminal Code to

incorporate the incest statutes into Jessicas

Law; or (3) write a letter to the Kansas Criminal

Code Recodication Commission to ask the

Commission to address the perceived problem.


The Committee decided to make no

recommendation on the topic of aggravated

incest to the 2008 Legislature. However, the

Committee agreed that a letter would be sentto the Kansas Criminal Code Recodication

Commission pointing out the problems perceived

by the Committee in the incest statutes and ask

the Recodication Commission to address those

problems in the recodication of the Criminal

Code Act.


19/34


background

The Committee was charged with theresponsibility of studying 2007 SB 254, which

would establish a procedure for an election to

determine whether the ofce of county attorney

should be abolished and the ofce of district

attorney established. The election could occur

either by a resolution or petition and would be

submitted to the Secretary of State.

committeeactiVitieS


on August 16, 2007.

Proponents of the bill were Senator Derek

Schmidt; Kyle Smith, citizen; and Brad Harrelson,

Kansas Farm Bureau.

Opponents were John Settle, Pawnee County

Attorney, and Robert Gale, Jr., Hamilton County

Attorney.

Conferees providing neutral testimony were

Randall Allen, Kansas Association of Counties;

John Pinegar, Kansas Legislative Policy Group;

and Ed Brancart, Kansas County and District

Attorneys Association.

Senator Derek Schmidt presented testimony

in support of legislation to allow local voters to

decide whether to move from a county attorney

system to a district attorney system for handling

criminal prosecutions. He reviewed (1) prior

House of Representatives consideration of

this topic; (2) 2006 Interim Assessment and

Taxation deliberations in examining options

that could reduce reliance on property taxes to

fund government services; (3) 2007 SB 254,

which was introduced in the Senate Judiciary

Committee but no hearings were scheduled;

and (4) advantages of the general approach. He

urged the Committee to focus on this important

issue of modernizing the prosecution function inthose parts of Kansas where voters desire it.

Kyle Smith noted he was testifying in his

personal and private capacity and not on behalf

of the Kansas Bureau of Investigation (KBI) or

any law enforcement organization. He reviewed

the role of the prosecutor in the criminal justice

system and his experience in various capacities

in prosecuting cases all over Kansas. He noted

allowing private practices to compensate for the

poor pay of the county attorney is an invitationfor conicts, real or perceived. The low pay

discourages talented people from entering

the eld, and encourages experienced trial

attorneys to leave the profession. He urged the

Committee to consider the issues and possibly

propose a better system that will provide quality

representation for all Kansans in all counties.


eStabliShmentof diStrictattorney officeS


The Committee agreed to recommend a bill that would establish a procedure for an election to

determine whether a district attorney ofce should be established in a county. The bill imposes

a threshold for establishing the ofce and proposes a three-tiered reimbursement trigger

mechanism.



20/34


Brad Harrelson, State Policy Director, Kansas

Farm Bureau, provided written testimony.

Robert Gale, Jr., Hamilton County Attorney,

testied that one of the fundamental aws in this

bill is the reasoning that the prosecutor should

not engage in private practice in order to be an

effective prosecutor. He cited the experience with

the public defender system as an example. He

objected to this bill for two reasons: (1) this will

shift a signicant obligation from the counties

to the State; and (2) counties that change from a

traditional county attorney system to the district

attorney system will not realize any signicant

tax savings. He suggested if the district attorney

system is approved, that a position of county or

deputy district attorney be mandated for each

county and this position not prohibit private

practice.

John Settle, Pawnee County Attorney,

opposed SB 254 because, in his opinion, the

piecemeal approach of SB 254 will provide little

benets, if any, to the citizens of Kansas.

Randall Allen, Kansas Association of

Counties, stated the Association is presently

neutral. The Association is in the process

of considering 2008 legislative policy

recommendations for consideration of its

membership. He noted three provisions in SB

254 are especially important to Kansas counties:

(1) it allows county commissioners to place the

issue before the voters; (2) the role of county

attorney would be a consideration in adopting a

district attorney system; and (3) the bill provides

for state funding of district attorney ofces.

Doug Smith, Kansas Legislative Policy

Group, stated KLPG believes some counties

in Kansas could benet from the creation of

an ofce of district attorney. Mr. Smith voiced

several concerns and questions.

Ed Brancart, Kansas County and District

Attorneys Association, highlighted some of

the many issues associated with moving from

the current prosecuting attorney system to a

statewide district attorney system. He urged the

Committee to give study and discussion to the

Associations concerns.

Jim Clark, Kansas Bar Association,

commented briey on the district attorney

programs in existence in Oklahoma and Colorado.

He thought the local election was a good idea.

He suggested having an elected ofcial to handle

felonies only.

On August 28, 2007, the Committee discussed

its recommendation on the topic. Senator Schmidt

noted this legislation was crafted to allow areas in

the state who have difculty obtaining qualied

county attorneys an opportunity to change fromthe county attorney system to a district attorney

system. Committee members comments were as

follows: (1) this would not provide a property tax

savings; (2) concern about state funding for this

system; (3) concern about how this would affect

the current judicial district system; (4) combining

more than one county would require contiguous

county participation; (5) some minimal felony

caseload thresholds would be needed; and (6) a

need to set out counties with exceptions.

The Chairperson concluded this Committee

may wish to consider a proposal that would allow

the majority vote of the county commissioners

of any one county, or two or more counties, to

place on the ballot a proposition to establish

a district attorney ofce. The salary (benets

not included) of the district attorney would be

paid by the state. Under current law, the district

attorney is an elected ofcial. The caseload

threshold would be a factor in order for the state

to pay the district attorneys salary. Stafng inthe district attorneys ofce would be determined

and paid for by each county. A tiered concept

could be considered in one draft.

Chairperson Vratil requested staff from the

Revisors Ofce draft two bills incorporating the

Committees recommendations one to include


21/34


the tiered concept and one without the tiered

concept.

On October 12, 2007, Revisors staff

presented the Committee with two draft

versions, 7rs1527 and 7rs1531, of a proposed

bill to include the different recommendations the

Committee had discussed in the hearing. In order

to make policy decisions in the bill drafts, the

Revisors Ofce presented the Committee with

the following information: (1) Felony caseload

lings by scal year 03-05 average by district;

(2) Felony caseload lings by scal year

alphabetical by county; and (3) Felony caseload

lings by scal year 2003-2005 averages.

Jill Wolters, Revisor of Statutes Ofce,

reviewed language in 7rs1527 regarding felony

caseloads, participation by two or more counties

to establish a district attorneys ofce, proposed

tiers for reimbursement of the district attorneys

salary by the state, and the addition of a county

to a district attorney ofce.

The Committee agreed on proposed

reimbursement tiers: for lings of more than

400 felony cases, the state reimburses 100% of

the district attorneys salary; for lings of more

than 275 and less than 400 felony cases, the state

would reimburse 67%; for lings of more than

150 and less than 275 felony cases, the state

would reimburse 33%; and for lings of 150

or fewer felony cases, the state would not be

required to reimburse the county.

Additionally, the Committee imposed a

threshold for establishing a District Attorney

Ofce in the county.

The Committee agreed that the Revisors

staff should modify the 7rs1527 draft as discussed

and bring it back to the Committee for further

consideration at their next meeting on November

9, 2007.


The Committee agreed to recommend a bill

that would establish a procedure for an election

to determine whether a district attorney ofce

should be established in a county. The bill

imposes a threshold for establishing the ofce

and proposes a three-tiered reimbursement

trigger mechanism.


22/34


background

The charge for the 2007 Special Committee

on Judiciary called for a study of 2007 SB

237, which would require individuals who are

presently serving a sentence for certain crimes

to submit specimens of blood or other biological

samples to the Kansas Bureau of Investigation

(KBI). In addition, the bill provides that for a

specied period of time, any person charged

with the commission of a person felony or drug

severity level 1 or 2 felony would be required tosubmit a specimen of blood or other biological

sample, but only after determination of probable

cause by a magistrate judge.

committeeactiVitieS

The Committee received testimony from

Jim Clark, Legislative Counsel, Kansas Bar

Association, who noted the KBA objected to

taking DNA samples upon arrest without a

warrant of an adult, or upon a juvenile being

taken into custody without a court order. Their

objections were:

Removing a DNA sample from a human

being is a search of that person; and

A DNA sample is a much more intrusive

collection than a ngerprint.

The KBA urged the Special Committee on

Judiciary to recommend legislation prohibiting

collection of DNA from an individual prior to a

judicial determination of probable cause.

Kyle Smith, KBI, testied as an opponent

to the proposal specifying the sample could

be taken only after determination of probable

cause by a magistrate judge. He discussed

the constitutionality issues in collecting DNAsamples and cited several court cases on this

issue. Mr. Smith believes the language of SB

237 is unconstitutional. He noted that booking

is the logical, reliable, and most cost-effective

way to collect DNA.

Frank Denning, Johnson County Sheriff,

stated SB 237 creates an unnecessary step in the

DNA specimen collection process and would add

an unwarranted layer of judicial review. He noted

the advancement in DNA analysis has yielded a

powerful investigative tool to aid in identifying

those that prey upon Kansas communities.

Alan Hamm, Assistant Director, Johnson

County Sheriffs Ofce Crime Lab Division,

discussed three arguments against collecting

buccal swab samples from arrestees and provided


SubmiSSionof bloodorotherbiological SampleStothe kbi


The Committee has recommended that the law be amended to conform with the recommendation

of the Kansas Bar Association (KBA) to require a blood or other biological sample be submitted,

but only after a determination of probable cause by a magistrate judge. The submission of the

sample would be an additional condition of bond.



23/34


an analysis of why these arguments should not

be a barrier to DNA testing:

Reliability of DNA results;

Cost of DNA analysis; and

Invasion of individual privacy.

He noted there are no personal identiers on

any of the DNA proles.

Captain Glenn Kurtz, Sedgwick County

Sheriffs Office, testified against SB 237,

indicating it would create an additional workload

for all of the sheriffs ofces in the state and a

signicant hardship for the larger jails.


The Committee has recommended that

the law be amended to conform with the

recommendation of the KBA to require a blood

or other biological sample be submitted, but

only after a determination of probable cause by amagistrate judge. The submission of the sample

would be an additional condition of bond.

The Committee recommends one bill be

introduced in the Senate.


24/34


background


responsibility of studying the need for the

creation of a Surface Damage Act for Kansas

landowners. The goal of the Act would be to

improve relations and settle damages between

landowners and their farm tenants and the gas

and oil operators who use the surface of the

land to conduct their oil and gas exploration

and development activities. The Committee

reviewed how other states deal with the issue of

the settlement of claims for damages caused by oil

and gas operators through pre-established damage

award amounts, appointment of appraisers to

value damages, the use of performance bonds, the

use of mediation or litigation, or other methods

to settle damage claims.

committeeactiVitieS

Proponents of the proposal were Erick Nordling, Southwest Kansas Royalty Owners

Association (SWKROA); Greg Stucky,

SWKROA; David Seely, Eastern Kansas Royalty

Owners Association (EKROA) and SWKROA;

Kenny Carter, EKROA; Terry Holdren, Kansas

Farm Bureau (KFB); Ron DeGarmo, SWKROA;

John Donley, Kansas Livestock Association

(KLA); Dennis Hupe, Kansas Soybean

Association (KSA); Carl Martin, citizen; and

Bob Van Crum, citizen.

Opponents of the proposal were Brent Moore,

OXY USA Inc.; Ed Cross, Kansas Independent

Oil & Gas Association (KIOGA); David

Bleakley, Colt Energy, Inc.; Bill Hess, McCoy

Petroleum Corporation; Ken White, White

Exploration, Inc.; Rick Stinson, Lario Oil and

Gas Company; Steve Dillard, Pickrell DrillingCompany; David M. Dayvault, Abercrombie

Energy; and Jack Glaves, DCP Midstream.

Proponents

Erick Nordling, SWKROA, provided an

overview of the issues and parties involved, the

need for a surface owner notice and compensation

act in Kansas, and an overview of what other

states and national organizations have been

doing to address similar issues. His PowerPoint

presentation featured: (1) oil and natural gas

production in the United States; (2) parties to oil

and gas leasing in new elds and mature elds;

(3) damages; (4) underlying tensions; and (5)

proposed legislation.

Greg Stucky, SWKROA, discussed oil

and gas leases, old and new, and the little or no


Settle damageS betWeen landoWnerSand theirfarm tenantSand

gaSand oil operatorS


The Special Committee on Judiciary considers this to be a serious issue and agrees something needs

to be done to resolve or protect the interests of the surface owners. The Committee encourages the

parties to seriously negotiate this subject and come to an agreement. If an agreement among the

parties cannot be reached, legislation will be introduced in the 2008 Session.



25/34


lease language addressing surface use by the

oil company. He addressed various court cases

involving surface owners and mineral owners

and noted that 12 oil and gas producing states

have passed legislation that addresses these

issues in various ways. He provided a copy of the

proposed bill draft to the Interim Committee.

The bill, drafted by the proponents, has two

primary components. First, the bill draft requires

an oil company to notify the surface owner of its

intended operations and make an offer to settle

any damages and address any concerns that the

surface owner has in connection with oil and gas

development. Second, the bill draft does not

unnecessarily impede the oil and gas operations

when the oil company and surface owner cannot

agree.

David Seely, EKROA and SWKROA, briey

reviewed the various requirements in legislation

passed by the 12 oil and gas producing states.

He reviewed the proposed bill draft distributed

to the Committee.

Kenny Carter, EKROA, spoke in favor of

surface damage legislation. His desire is for

this legislation to create a workable agreement

between landowners and oil and gas producers

Terry Holdren, Kansas Farm Bureau, stated

that organizations members believe that the

proposed Oil and Gas Surface Owners Notice

and Compensation Act provides workable

solutions that will continue to allow production

and exploration and provide a minimal protection

to surface owners who are conducting business

operations on their land.

Ron DeGarmo, SWKROA, is a farmer andrancher who is in favor of possible legislation to

protect surface owners from surface damages due

to gas and oil exploration. He had found a lease

recorded February 1, 1930, and, after studying

its terms for advantages to the surface owner,

he noted that most leases do not offer much

protection to the surface owner and tenant.

John Donley, Kansas Livestock Association,

and Dennis Hupe, Kansas Soybean Association,

spoke in favor of the proposed legislation.

Carl Martin, citizen and former president

of Southwest College, Winfield, spoke of

the heritage of the soil and need for surface

protection.

Kirk Heger, Southwest Kansas Irrigation

Association, and David W. Bolton, Land for Quest

Resource Corp., provided written testimony in

support of the proposed legislation.

Opponents

Brent Moore, OXY USA Inc., opposed

introduction of legislation that would mandatethe payment of surface damages by oil and

gas operators to landowners or their tenants or

both. As a general practice, and even though

not required to do so by the express or implied

covenants under the oil and gas lease, oil and gas

operators pay surface owners for damages to their

property. In his opinion, a surface damage act

will cause deterioration in relationships between

the co-users of the surface, increase litigation

and increase the cost of drilling wells.

Ed Cross, KIOGA, spoke in opposition to

the proposal. He testied that most states have

found that their current systems adequately

address the surface rights issue.

David Bleakley, Colt Energy, Inc., noted

normal damages to crops, fences, livestock and

restoration of drilling sites are all considered

when making reasonable reimbursement to the

surface owner. Issues differ in various parts

of the state, and oil and gas leases are private

contracts between the lessor and lessee. If all

else fails, there is a remedy through the court

system for either party.

Bill Hess, McCoy Petroleum Corporation,

said the company has drilled wells in Kansas

since 1970 and company ofcials recognize


26/34


it is their duty to pay for reasonable surface

damages and losses incurred due to company

activities. He testied it is preferable to settle

the damage amount after drilling to make sure

the damage amount paid accurately reects the

actual damage. He believes their practices areindicative of those of most independent operators

operating in western Kansas.

Ken White, White Exploration, Inc., cited an

informal survey he conducted with a group of

operators in Kansas and presented the results in

his testimony. According to his informal survey,

the operators who responded were surprised that

surface damage is even an issue. He opposed

any legislation that will inhibit exploration due

to the acts of others.

Rick Stinson, Lario Oil and Gas Company,

provided considerable information on leases,

the rights of the surface owner and the mineral

owner, quotes from Illinois statutes dening

damages, the process of the Oklahoma Surface

Damage Act, and the difculty with bonding.

He noted many cases throughout the oil and gas

producing states have addressed these issues and

said there is no need for legislation.

Steve Dillard, Pickrell Drilling Company,

reiterated that Kansas is not like other states

that have many surface owners who do not own

minerals. Kansas does not have a signicant

amount of State or Federal lands that are leased

for farming or ranching. The courts are already in

place to handle the rare instances where damage

settlements are disputed.

David M. Dayvault, Abercrombie Energy,

described the efforts of other states to address

relations between oil and gas operators and

surface owners. He noted most operators take

a long-term view that good relations with the

surface owners and mineral owners are necessaryto continue to explore and develop oil and gas in

Kansas.

Jack Glaves, DCP Midstream, noted Kansas

Corporation Commission approval is required to

drill and an application to drill a well is public

record. He also stated there is a reclamation act

on the books already in KSA 55-177.

After discussion and questions from the

Committee on the various issues, the Chairman

encouraged the two groups to communicate after

all have had an opportunity to study the proposed

legislation. He urged them to work out a solution

and come back with a compromise position for

the Committee to consider.


The Special Committee on Judiciaryconsiders this to be a serious issue and agrees

something needs to be done to resolve or

protect the interests of the surface owners. The

Committee encourages the parties to seriously

negotiate this subject and come to an agreement.

If an agreement among the parties cannot be

reached, legislation will be introduced in the

2008 Session.


27/34


background

The charge to the 2007 Special Committee

on Judiciary included study of the current

statutes related to vehicular homicide and review

of whether district and county attorneys should

have more discretion for ling charges related

to vehicular homicide. The Committee also

was to study whether stronger penalties should

be an option for those individuals convicted of

vehicular homicide.

committeeactiVitieS

On October 11, 2007, the Committee heard

from Representative Kenny Wilk, who reviewed

a tragic car accident of February 14, 2007, the

event that brought the review of the vehicular

homicide statute to the attention of the Legislature.

Senator Roger Pine and Representative Wilk

intend to introduce legislation in the 2008 Session

to amend the vehicular homicide statute.

Denise Bixby, mother of deceased Amanda

Bixby, 19, spoke about her experience with the

current vehicular homicide law. She described

the events of the accident, her frustration with

what she perceived as the lack of a thorough

investigation by the police, and that there was no

drug testing of the man who caused the fatality

accident.

Dennis Bixby, father of deceased Amanda

Bixby, provided details regarding the driverwho caused the accident. He noted the Kansas

Supreme Court ruling in 2002 in Kansas vs.

Krovvidi held that failure to stop at a stop light

does not, as a matter of law, constitute a material

deviation from the standard of care which a

reasonable person would observe under the same

circumstance.

Mr. Bixby recommended a solution aimed

at:

Clarifying the law;

Stiffening penalties for vehicular homicide;

and

Requiring mandatory drug testing.

Robin Jones, a friend of the Bixby family,

urged that the vehicular homicide laws of this


Vehicularhomicide


The Committee concludes, after hearing from the various conferees, that the issues covered are

serious issues, but the Committee does not believe that the best course of action is to amend the

vehicular homicide statute to deal with the problem. Consideration also was given to the many

facets involved in testing for alcohol or drugs.

The Committee recommends the introduction of legislation regarding the implied consent law to

allow for the collection of samples in cases where there has been a fatality or an injury in which an

individual is transported for medical attention. The bill will be introduced as a House bill.

Proposed Legislation: The Committee recommends one bill to be introduced as a House bill.


28/34


state be amended and that drug and alcohol testing

be required in all trafc fatality accidents.

Diane Meyer detailed the semi truck-car

accident that killed her daughter three years ago.

The county attorney did not think that the case

met the criteria for vehicular homicide and did

not have sufcient evidence to charge the driver

with any crime. She urged the Legislature to

adopt laws holding commercial truck drivers to

occupational standards comparable, at least, to

those of trafc controllers and pilots. She urged

action as follows:

Require immediate drug and alcohol testing

in all large truck accidents resulting in injury

or fatality;

Require a minimum liability insurance

coverage of $3,000,000 per incident;

Require impoundment by law enforcement

of tractor, trailer, or truck until a full

vehicle autopsy is performed by a qualied

Department of Transportation ofcial;

Increase the punishment when a commercial

vehicle is at fault; and

Require data recorders be installed by 2009,

on all commercial trucks logging more than

100,000 miles per year.

Ed Klumpp, Kansas Association of Chiefs

of Police, provided neutral testimony and stated

the Association believed the current vehicular

homicide law is adequate. He stated the crime

should be reserved for the case where there

is a substantial or material deviation from the

standard of care of a reasonable person.

John P. Wheeler, Jr., Finney County Attorney,

appeared on behalf of the County and District

Attorneys Association (KCDAA) in a neutral position. He provided the Committee insight

on the issues Kansas prosecutors face when

presented a case involving a death arising from

a vehicular accident.

Karen Wittman, KCDAA and Ofce of the

Shawnee County District Attorney, described her

role as the attorney in charge of all trafc-related

offenses.


The Committee concludes, after hearing

from the various conferees, that the issues

covered are serious issues, but the Committee

does not believe that the best course of action is

to amend the vehicular homicide statute to deal

with the problem. Consideration also was given

to the many facets involved in testing for alcoholor drugs.

The Committee recommends the introduction

of legislation regarding the implied consent law

to allow for the collection of samples in cases

where there has been a fatality or an injury in

which an individual is transported for medical

attention. The bill will be introduced as a House

bill.


29/34


background

The Committee was charged with

the responsibility of studying the issue of

indemnication agreements when a contract

requires the rst party to indemnify the second

party for negligent acts of the second party.

Current law provides that if a construction

contract contains such a provision, it is considered

void and unenforceable.

The Committee studied the three bills

proposed in the 2007 Session: (1) HB 2007 would

extend the current prohibition agreements to all

contracts; (2) HB 2262 would extend the current

prohibition on agreements to motor carriers; and

(3) SB 379 would prohibit indemnication for

intentional acts and omissions. It also would

prohibit a provision in a construction contract,

except for contracts between the owner of the

property and the general contractor, which

requires a party to provide liability coverage to

another party, as an additional insured, for the

other partys negligence, intentional acts, or

omissions.

committeeactiVitieS


on September 19, 2007.

Proponents for the proposal were: Bill

Miller, American Subcontractors Association;Tom Whitaker, Executive Director, Kansas Motor

Carriers Association; SueAnn Schultz, Kansas

Association of Insurance Agents; Ken Keller,

Western Extralite; Gus Meyer, Rau Construction,

Builders Association, and Kansas City Chapter

of Associated General Contractors; and Marvin

Kleeb, Allied Stafng, Mid-America Association

of Personnel and Stafng Services, and Kansas

State Council of the National Federation of

Independent Business (NFIB).

Opponents of the proposal were Pat Barnes,

Kansas Auto Dealers Association; Edward

Cross, Kansas Independent Oil and Gas

Association (KIOGA); Garry Walker, KIOGA;

David Dayvault, KIOGA; Brent Moore, OXY

USA, Inc.; Will Larson, Kansas Contractors

Association and Associated General Contractors;

Wyatt Hoch, Coalition to Preserve Freedom

of Contract; and Corey Peterson, Associated

General Contractors.

Bill Miller, American Subcontractors

Association, directed his remarks in favor of SB

379. He favored enacting legislation that makes

everyone responsible for his own claims and the

claims caused by those for whom that person is

responsible. This law would stop abusive risk


indemnificationagreementS


The Committee agreed it should make no recommendations on any of the three bills (2007 SB

379, HB 2262 and HB 2007). The Committee strongly urges the interested parties come to the

table to jointly review the issue of indemnication agreements and make a joint proposal to the

Legislature.



30/34


transfer and reduce liability insurance costs, he

said.

Tom Whitaker, Executive Director, Kansas

Motor Carriers Association, directed his remarks

in favor of HB 2262, which he said would

promote safety in the transportation of goods by

motor carriers by eliminating clauses that shield

shippers and others who perform their obligations

negligently or wrongfully. He supports legislation

that prohibits indemnication clauses in motor

carrier transportation contracts that require one

party to indemnify and hold harmless a second

party for its negligence or wrongful acts.

SueAnn Schultz, Kansas Association of

Insurance Agents, supported the basic policyin all three bills that makes it against public

policy to transfer responsibility for one partys

negligence to another party. The bills also

expand on the protection given to contractors

and prohibit requirements to name another party

as an additional insured to pick up coverage for

their own negligence.

Ken Keller, Western Extralite, a distributor

of electrical and voice/data products, directed

his remarks to SB 379 which he thought wouldeliminate the current practice of requiring

subcontractors to name the owner, general

contractor, and others as an additional insured

on their auto and liability policies. He suggested

an amendment that would provide that the

subcontractor and his insurance company be

reimbursed for his deductible and the cost of

defense to the extent the subcontractor is deemed

not to be at fault.

Gus Meyer, Rau Construction, BuildersAssociation, and Kansas City Chapter of

Associated General Contractors, discussed

construction contracts containing indemnication

clauses that make the contractors responsible

for the actions of all contractors involved. He

favored the legislation that would restrict

indemnication clauses requiring a rst party to

indemnify a second party for the negligent acts

of the second party.

Marvin Kleeb, Allied Stafng, Mid-America

Association of Personnel and Stafng Services,

and Kansas State Council of the NFIB, urged

further consideration of legislation that makes

indemnication and additional insured clauses in

contracts void and unenforceable. He described

various claims made by large companies on small

businesses.

Pat Barnes, Kansas Auto Dealers Association,

opposed changing the current Kansas law with

respect to indemnication and opposed HB

2007 in particular. He said the proposal the bill

represents for indemnication agreements wouldnot be a good measure for business transactions

in general.

Edward Cross, KIOGA, expressed

opposition and the organizations concerns on

current proposed legislation and noted in 2006

KIOGA had developed a task force to nd a

workable solution on the indemnication issue.

The task force developed a model master service

agreement which provides a model by which all

oil and gas companies can work but is not theanswer to the indemnication issue. Mr. Cross

was followed by other members of KIOGA.

Garry Walker, KIOGA, described three of

the ve primary uses of indemnity agreements

in the Kansas oil and gas industry.

David Dayvault, KIOGA, detailed the fourth

use where indemnity agreements are frequently

used in well servicing contracts and said the

fth signicant use is in drilling contracts.He noted it has been proposed that indemnity

provisions be generally declared as contrary to

public policy, but exceptions would be provided

in those instances where a strong case could be

made as to their benets. Texas has such a law

and, if Kansas should adopt such an approach, it

was suggested that the ve types of indemnity


31/34


agreements described in this testimony be

allowed as good public policy.

Brent Moore, OXY USA, Inc., opposed

HB 2007 and provided seven reasons for that

companys opposition. OXY believes that the

current proposed legislation will cause serious

unintended consequences with respect to many

contracts within many businesses in Kansas. He

suggested if this Committee proceeds to apply

this proposed law to the oil and gas industry, that

consideration be made to making exemptions

or exclusions of its application similar to those

under the Texas statute.

Will Larson, Kansas Contractors Association

and Associated General Contractors, noted theCommittee had indicated it would amend the

bill in 2008 to eliminate language amended into

SB 379 by the Senate Committee on Judiciary

on page 2, lines 1 through 3 namely that

the provisions of this subsection shall not apply

to a construction contract between the owner of

the property and the general contractor. If this

is done, he would be a proponent instead of an

opponent.

Wyatt Hoch, Coalition to Preserve Freedom of

Contract, opposed the three bills and summarized

his comments that government should not take

sides in a non-consumer business transaction.

At most, the Legislature should pass a law only

prohibiting indemnity provisions from covering

the other partys own negligence or require

certain clear language in order for risk-allocating

indemnity provisions to be upheld.

Written testimony was provided by Corey

Peterson, Associated General Contractors of

Kansas, Inc.


The Committee agreed it should make

no recommendations on any of the three bills

(2007 SB 379, HB 2262 and HB 2007). The

Committee strongly urges the interested parties

to come to the table to jointly review the issue

and make a joint proposal to the Legislature.


32/34


background

The Committee was charged to review the

issue of release of inmates to house arrest by the

Secretary of Corrections. The topic also required

a study of 2007 SB 306, which would clarify

when defendants may be sentenced by the court

to a house arrest program and when inmates in

the custody of the Secretary of Corrections could

be placed on a house arrest program.

committeeactiVitieS

On November 8, 2007, the Committee

received a letter from Senator Nick Jordan

advocating the adoption of SB 306, which he

introduced in the 2007 Session. The bill did not

receive a hearing. Secretary Roger Werholtz,

Kansas Department of Corrections (KDOC),

testied via teleconference call. The Secretary

noted his concern with the proposal, namely,

the mandatory implementation of a house arrest program by KDOC could jeopardize a wide

range of other sound correctional programs if

one tragic crime is committed by an inmate on

house arrest. In addition, the Secretary noted

that, under current law, the Secretary already

has discretionary authority to implement a

house arrest program, but SB 306 would make

the implementation mandatory. Mr. Werholtztook the opportunity to note that the criteria for

court-ordered house arrest should be updated.

According to the conferee, there would be no

signicant impact on prison population or on

KDOCs budget under the proposal.

There was discussion by the Committee on

the various aspects of a house arrest program

such as the following:

Review on a case-by-case basis;Criteria for suitable candidates;

Work release programs; and

Budget savings.


The Committee took note of the authority

in current law for the Secretary to implement a

house arrest program, which the Secretary has

chosen not to use. Also, the Committee chose totake no action on the Sec

judiciary 2007 audit

Documents