Special Committees

Report of the
Special Committee on Judiciary
to the
2008 Kansas Legislature
Chairperson: Senator John Vratil

Vice-Chairperson: Representative Mike O’Neal

Ranking Minority Member: Senator Greta Goodwin

Other Members: 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

Study topics

●● Operations of the Board of Healing Arts

●● Kansas Administrative Procedure Act and the Act for Judicial Review of Agency Actions
●● Operations of the Kansas Parole Board
●● Medical Assistance for Trust Beneficiaries
●● 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 Offices
●● Submission of Blood or Other Biological Samples to the Kansas Bureau of Investigation
●● Settle Damages Between Landowners and Their Farm Tenants and Gas and Oil
Operators
●● Vehicular Homicide
●● Indemnification Agreements
●● Release of Inmates to House Arrest by the Secretary of Corrections
●● Child Care Custody-Military Deployment

December 2007
 Special Committee on Judiciary
Operations of the Board of Healing Arts

Conclusions and 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 fingerprinting, 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 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.

Background of October 2006. She reviewed the mission,

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 BOHA’s jurisdiction; the nature, fairness
and quality of the BOHA’s investigations; and
recommendations regarding implementation of
graduated sanctions.
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 finds?

●● Does the BOHA conduct background

Committee Activities
Chris Clarke, Performance Audit Manager,
Legislative Division of Post Audit, reviewed
the findings, conclusions, and recommendations
of the Legislative Division of Post Audit as
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?

Kansas Legislative Research Department 5-1 2007 Judiciary

●● Does the BOHA composition give fair
representation to all healing arts practices
and, if not, what could be done to address
any deficiencies?
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 fingerprints 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 qualifications 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, to
authorize the fingerprinting requirement to apply
to the State Board of Nursing. In addition, the
bill authorizes the State Board of Nursing to set
a fee for fingerprinting in an amount necessary to
reimburse the Board for the cost of fingerprinting
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
Kansas Legislative Research Department
patient complaints, availability of information to
the public, website availability, and investigation
of malpractice suits.
Conclusions and Recommendations
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 legislation
on alternative sanctions as recommended by
Larry Buening.
The Committee also supports the bills
authorizing fingerprinting, 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.
5-2 2007 Judiciary
 Special Committee on Judiciary
Kansas Administrative Procedure Act and
the Kansas Judicial Review and Civil Enforcement Act

Conclusions and Recommendations

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 officer from the Office 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.

Background The Committee also reviewed whether the

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 Office 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 administrative
remedies may seek review under the KJRA. W.S.
Dickey Clay Mfg.. Co. v. Kansas Corp. Comm’n,
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).
findings 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 officers in
administrative hearings. Under the current law,
agency heads retain the right to make a final
decision.
Finally, the Committee examined whether the
findings of fact by the OAH should be the final
word in the administrative hearing process.
Committee Activities
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. Conferees
in 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 Office of the
Securities Commissioner on behalf of his agency
and 17 other state agencies; Thomas Thull, Bank
Commissioner; Virginia Powell, CPA and past

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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 testimony
on the topic.
Sandy Praeger, Commissioner of Insurance,
opposed 2007 SB 351 and any other bill that
would transfer the Insurance Commissioner’s
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 was
expanded with the creation of the OAH. In the
Commissioner’s opinion, an agency should be
able to make a final decision after a fact-finding
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 officer 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 agent’s license in response
to Chairperson Vratil’s 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 final summary is
completed and handed to the Commissioner for
disposition.
Rick Fleming, General Counsel, Office 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,
Kansas Legislative Research Department
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, Office
of the Securities Commissioner, and the State
Banking Board and Office of the State Bank
Commissioner. The agencies also opposed any
proposal to make findings 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 officers in administrative hearings
would change the fundamental character of
regulatory agencies in Kansas. Additionally,
the negative impact on agencies’ budgets will be
significant if agencies must use a outside hearing
officer 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 financial
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 officers 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 officers 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
5-4 2007 Judiciary
presiding officer. 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 Kansas
Judicial 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 committee’s views on this difficult
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 officer decision in order to
make policy and ensure the consistency of
decisions with agency policy;
Kansas Legislative Research Department
●● Abuse by agencies should be constrained
by enhanced judicial review of reasoned
decision-making when an agency has
reversed a hearing officer;
●● 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.
Conclusions and Recommendations
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 officer
from the Office of Administrative Hearings
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.
5-5 2007 Judiciary
 Special Committee on Judiciary
Operations of the Kansas Parole Board

Conclusions and Recommendations

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 profile cases.

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

Background The charge of the 2007 Special Committee

The Kansas Parole Board (KPB) has existed
since the 1800s and has been known by various
titles, such as:
1885—Board of Pardons
1903—Prison Board
1957—Board of Probation and Parole
1974—Kansas Adult Authority
on Judiciary was to study the workings of the
KPB 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
indefinitely when the inmates have met all of
the programing and treatment criteria of their
agreement with the Department of Corrections.

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.
Committee Activities
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

Kansas Legislative Research Department 5-6 2007 Judiciary

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)
final revocation hearings; (4) public comment
sessions; (5) full board reviews; (6) special
conditions of post-incarceration supervision;
(7) offender release planning; (8) file 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 the
various offender hearings is considerable.
Kansas Legislative Research Department
Conclusions and Recommendations
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 profile cases.
The Committee recommends one bill be
introduced in the Senate.
5-7 2007 Judiciary
 Special Committee on Judiciary
Medical Assistance for Trust Beneficiaries

Conclusions and Recommendations

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 definition 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.

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

Background application of any statute concerning trusts

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
beneficiaries. The bill would have clarified 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
beneficiary for medical assistance.
Committee Activities
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
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 briefly on the
changes 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 Authority’s 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

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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 specific 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
Kansas Legislative Research Department
and would not be available for medical reasons.
Definitions of “public assistance” and “medical
assistance” were not included in this balloon
amendment. However, the Committee stated the
definition of “public assistance” includes, but is
not limited to, Medicaid, medical assistance, or
Title XIX of the Social Security Act.
Conclusions and Recommendations
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 definition 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.
5-9 2007 Judiciary
 Special Committee on Judiciary
Subrogation Clauses in Health Insurance Contracts
Conclusions and Recommendations
The Committee opposes the proposal at this time.
Proposed Legislation: None.
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 action
was taken.
Committee Activities
The Committee held a hearing on the topic
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.
Kansas Legislative Research Department
Senator Journey provided the Committee
with background information on the issue.
He testified that 2007 SB 44 was drafted as
an alternative to the collateral source proposal
and would work significantly 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
benefits 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 importance
of 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
5-10 2007 Judiciary
crisis, but it will help fight 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 KBA’s 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.
Kansas Legislative Research Department
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 compensate
consumers 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
Office.
Conclusions and Recommendations
The Committee opposes the proposal at this
time.
5-11 2007 Judiciary
 Special Committee on Judiciary
Change in Judge in a Civil Action

Conclusions and Recommendations

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 clarification 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.

Background “check and balance” to the judicial system. He

The Committee was charged with the
responsibility of studying 2007 SB 86, which
would require a change of a judge in a civil action
if a written application is filed 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.
Committee Activities
The Committee held a hearing on the topic
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
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 judge’s chambers where there is no official
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

Kansas Legislative Research Department 5-12 2007 Judiciary

court rule that would consider the benefits and
costs of implementing a “change of judge” rule
in appropriate circumstances.
Conclusions and Recommendations
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
Kansas Legislative Research Department
a difference of interpretation of the existing
statute and clarification 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.
5-13 2007 Judiciary
 Special Committee on Judiciary
Interference with Parental Custody

Conclusions and Recommendations

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.

Background included Sandra Barnett, Executive Director,

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 parental
custody).
Committee Activities
The Committee held a hearing on the topic
on August 16, 2007. At that time, the Committee
heard from proponents of the measure which
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
Women’s 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 officers can determine fault; and
Jacqie 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.

Kansas Legislative Research Department 5-14 2007 Judiciary

 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
General’s Office, but was not endorsed by the
Attorney General at this time.
Written testimony from the Office 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 justification or
excuse” to the statute which would accomplish
their goal of creating a defense for a parent who
justifiedly removes a child from the custody of
another parent.
A majority of the Committee expressed an
interest in creating an affirmative defense rather
Kansas Legislative Research Department
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
affirmative defense.
Conclusions and Recommendations
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.
5-15 2007 Judiciary
 Special Committee on Judiciary
Aggravated Incest
Conclusions and Recommendations
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 Recodification Commission pointing out the problems perceived by the Committee
in the incest statutes and ask the Recodification Commission to address those problems in the
recodification of the Criminal Code Act.
Proposed Legislation: None.
Background
The Committee was charged with the
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.
Committee Activities
The Committee held a hearing on the topic
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
Kansas Legislative Research Department 5-16
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
2007 Judiciary
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 testified that the Kansas
Recodification 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 Committee
discussed that the bill is well-intended but fraught
with unintended or unforeseen consequences.
Specifically, several members were concerned
that the bill would nullify the protections enacted
with the passage of Jessica’s Law (2006 HB
2576) which establishes minimum mandatory
Kansas Legislative Research Department
sentences for sex offenders where the victim is
a child.
The Chairperson distilled the Committee’s
discussion into three courses of action: (1)
do nothing; (2) rewrite the Criminal Code to
incorporate the incest statutes into Jessica’s
Law; or (3) write a letter to the Kansas Criminal
Code Recodification Commission to ask the
Commission to address the perceived problem.
Conclusions and Recommendations
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 Recodification
Commission pointing out the problems perceived
by the Committee in the incest statutes and ask
the Recodification Commission to address those
problems in the recodification of the Criminal
Code Act.
5-17 2007 Judiciary
 Special Committee on Judiciary
Establishment of District Attorney Offices

Conclusions and Recommendations

The Committee agreed to recommend a bill that would establish a procedure for an election to
determine whether a district attorney office should be established in a county. The bill imposes
a threshold for establishing the office and proposes a three-tiered reimbursement trigger
mechanism.

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

Background decide whether to move from a county attorney

The Committee was charged with the
responsibility of studying 2007 SB 254, which
would establish a procedure for an election to
determine whether the office of county attorney
should be abolished and the office of district
attorney established. The election could occur
either by a resolution or petition and would be
submitted to the Secretary of State.
Committee Activities
The Committee held a hearing on the topic
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
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 in
those 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 invitation
for conflicts, real or perceived. The low pay
discourages talented people from entering
the field, 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.

Kansas Legislative Research Department 5-18 2007 Judiciary

 Brad Harrelson, State Policy Director, Kansas
Farm Bureau, provided written testimony.
Robert Gale, Jr., Hamilton County Attorney,
testified that one of the fundamental flaws 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 significant 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 significant
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
benefits, 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 offices.
Doug Smith, Kansas Legislative Policy
Group, stated KLPG believes some counties
in Kansas could benefit from the creation of
an office 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
Kansas Legislative Research Department
the current prosecuting attorney system to a
statewide district attorney system. He urged the
Committee to give study and discussion to the
Association’s concerns.
Jim Clark, Kansas Bar Association,
commented briefly 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 official 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 difficulty obtaining qualified
county attorneys an opportunity to change from
the county attorney system to a district attorney
system. Committee member’s 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 office. The salary (benefits
not included) of the district attorney would be
paid by the state. Under current law, the district
attorney is an elected official. The caseload
threshold would be a factor in order for the state
to pay the district attorney’s salary. Staffing in
the district attorney’s office would be determined
and paid for by each county. A tiered concept
could be considered in one draft.
Chairperson Vratil requested staff from the
Revisor’s Office draft two bills incorporating the
Committee’s recommendations – one to include
5-19 2007 Judiciary
the tiered concept and one without the tiered
concept.
On October 12, 2007, Revisor’s 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
Revisor’s Office presented the Committee with
the following information: (1) Felony caseload
filings by fiscal year – 03-05 average by district;
(2) Felony caseload filings by fiscal year –
alphabetical by county; and (3) Felony caseload
filings by fiscal year 2003-2005 averages.
Jill Wolters, Revisor of Statutes Office,
reviewed language in 7rs1527 regarding felony
caseloads, participation by two or more counties
to establish a district attorney’s office, proposed
tiers for reimbursement of the district attorney’s
salary by the state, and the addition of a county
to a district attorney office.
The Committee agreed on proposed
reimbursement tiers: for filings of more than
400 felony cases, the state reimburses 100% of
the district attorney’s salary; for filings of more
Kansas Legislative Research Department
than 275 and less than 400 felony cases, the state
would reimburse 67%; for filings of more than
150 and less than 275 felony cases, the state
would reimburse 33%; and for filings 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
Office in the county.
The Committee agreed that the Revisor’s
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.
Conclusions and Recommendations
The Committee agreed to recommend a bill
that would establish a procedure for an election
to determine whether a district attorney office
should be established in a county. The bill
imposes a threshold for establishing the office
and proposes a three-tiered reimbursement
trigger mechanism.
5-20 2007 Judiciary
 Special Committee on Judiciary
Submission of Blood or Other Biological Samples to the KBI

Conclusions and Recommendations

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.

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

Background collection than a fingerprint.

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
specified period of time, any person charged
with the commission of a person felony or drug
severity level 1 or 2 felony would be required to
submit a specimen of blood or other biological
sample, but only after determination of probable
cause by a magistrate judge.
Committee Activities
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:
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, testified 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 DNA
samples 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.

●● Removing a DNA sample from a human Alan Hamm, Assistant Director, Johnson
being is a search of that person; and County Sheriff’s Office Crime Lab Division,
discussed three arguments against collecting
●● A DNA sample is a much more intrusive buccal swab samples from arrestees and provided

Kansas Legislative Research Department 5-21 2007 Judiciary

an analysis of why these arguments should not Conclusions and Recommendations
be a barrier to DNA testing:
The Committee has recommended that
●● Reliability of DNA results; the law be amended to conform with the
●● Cost of DNA analysis; and recommendation of the KBA to require a blood
●● Invasion of individual privacy. or other biological sample be submitted, but
only after a determination of probable cause by a
He noted there are no personal identifiers on magistrate judge. The submission of the sample
any of the DNA profiles. would be an additional condition of bond.

Captain Glenn Kurtz, Sedgwick County The Committee recommends one bill be
Sheriff’s Office, testified against SB 237, introduced in the Senate.
indicating it would create an additional workload
for all of the sheriffs’ offices in the state and a
significant hardship for the larger jails.

Kansas Legislative Research Department 5-22 2007 Judiciary

 Special Committee on Judiciary
Settle Damages Between Landowners and Their Farm Tenants and
Gas and Oil Operators

Conclusions and Recommendations

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.

Proposed Legislation: None.

Background (KLA); Dennis Hupe, Kansas Soybean

The Committee was charged with the
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.
Committee Activities
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
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 Drilling
Company; 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 fields and mature fields;
(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

Kansas Legislative Research Department 5-23 2007 Judiciary

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, briefly
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 organization’s 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 and
rancher 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.
Kansas Legislative Research Department
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 mandate
the 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 testified 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 officials recognize
5-24 2007 Judiciary
it is their duty to pay for reasonable surface
damages and losses incurred due to company
activities. He testified it is preferable to settle
the damage amount after drilling to make sure
the damage amount paid accurately reflects the
actual damage. He believes their practices are
indicative 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 defining
damages, the process of the Oklahoma Surface
Damage Act, and the difficulty 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 significant
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.
Kansas Legislative Research Department
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 necessary
to 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.
Conclusions and Recommendations
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.
5-25 2007 Judiciary
 Special Committee on Judiciary
Vehicular Homicide

Conclusions and Recommendations

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.

Background the events of the accident, her frustration with

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 filing 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.
Committee Activities
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
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 driver
who 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

Kansas Legislative Research Department 5-26 2007 Judiciary

state be amended and that drug and alcohol testing
be required in all traffic 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 sufficient 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 traffic 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 qualified
Department of Transportation official;
●● 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
Kansas Legislative Research Department
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 Office of the
Shawnee County District Attorney, described her
role as the attorney in charge of all traffic-related
offenses.
Conclusions and Recommendations
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.
5-27 2007 Judiciary
 Special Committee on Judiciary
Indemnification Agreements
Conclusions and Recommendations
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 indemnification agreements and make a joint proposal to the
Legislature.
Proposed Legislation: None.
Background
The Committee was charged with
the responsibility of studying the issue of
indemnification agreements when a contract
requires the first 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 indemnification 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 party’s negligence, intentional acts, or
omissions.
Committee Activities
The Committee held a hearing on the topic
on September 19, 2007.
Kansas Legislative Research Department
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 Staffing, Mid-America Association
of Personnel and Staffing 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
5-28 2007 Judiciary
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 indemnification 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 policy
in all three bills that makes it against public
policy to transfer responsibility for one party’s
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 would
eliminate 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, Builders
Association, and Kansas City Chapter of
Associated General Contractors, discussed
construction contracts containing indemnification
clauses that make the contractors responsible
for the actions of all contractors involved. He
favored the legislation that would restrict
indemnification clauses requiring a first party to
Kansas Legislative Research Department
indemnify a second party for the negligent acts
of the second party.
Marvin Kleeb, Allied Staffing, Mid-America
Association of Personnel and Staffing Services,
and Kansas State Council of the NFIB, urged
further consideration of legislation that makes
indemnification 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 indemnification and opposed HB
2007 in particular. He said the proposal the bill
represents for indemnification agreements would
not be a good measure for business transactions
in general.
Edward Cross, KIOGA, expressed
opposition and the organization’s concerns on
current proposed legislation and noted in 2006
KIOGA had developed a task force to find a
workable solution on the indemnification 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 the
answer to the indemnification issue. Mr. Cross
was followed by other members of KIOGA.
Garry Walker, KIOGA, described three of
the five 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
fifth significant 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 benefits. Texas has such a law
and, if Kansas should adopt such an approach, it
was suggested that the five types of indemnity
5-29 2007 Judiciary
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
company’s 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 the
Committee 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
Kansas Legislative Research Department
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 party’s 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.
Conclusions and Recommendations
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.
5-30 2007 Judiciary
 Special Committee on Judiciary
Release of Inmates to House Arrest by the
Secretary of Corrections

Conclusions and Recommendations

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 to take no
action on the Secretary’s request to have the Legislature determine the class of inmates who should
qualify for house arrest.

Proposed Legislation: None.

Background the implementation mandatory. Mr. Werholtz

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.
took the opportunity to note that the criteria for
court-ordered house arrest should be updated.
According to the conferee, there would be no
significant impact on prison population or on
KDOC’s 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;

Committee Activities ●● Criteria for suitable candidates;
●● Work release programs; and
On November 8, 2007, the Committee
●● Budget savings.
received a letter from Senator Nick Jordan
advocating the adoption of SB 306, which he
introduced in the 2007 Session. The bill did not
Conclusions and Recommendations
receive a hearing. Secretary Roger Werholtz,
Kansas Department of Corrections (KDOC), The Committee took note of the authority
testified via teleconference call. The Secretary in current law for the Secretary to implement a
noted his concern with the proposal, namely, house arrest program, which the Secretary has
the mandatory implementation of a house arrest chosen not to use. Also, the Committee chose to
program by KDOC could jeopardize a wide take no action on the Secretary’s request to have
range of other sound correctional programs if the Legislature determine the class of inmates
one tragic crime is committed by an inmate on who should qualify for house arrest.
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

Kansas Legislative Research Department 5-31 2007 Judiciary

 Special Committee on Judiciary
Child Care Custody—Military Deployment

Conclusions and Recommendations

Committee discussion revealed a consensus that the North Carolina law on custody visitation and
military orders was a good model. It was suggested, however, that requiring a family parenting plan
was a good addition to the model. The Committee concluded that this may address the problem of
a service member losing custody of a child because of deployment.

The Committee recommends legislation incorporating all of the North Carolina provisions, except
on 2(f), and adding a provision that a parenting plan that specifically addresses deployment be
considered at the time a divorce is granted. Additionally, the legislation would include that Kansas
would retain jurisdiction unless the parents agree.

Section 2(f) of the North Carolina legislation regarding electronic communications is not in the
draft legislation because the consensus was it is better addressed in the Supreme Court Rules.
The Committee approved the Chairperson sending a letter to the Supreme Court requesting a rule
change or creation of a new rule.

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

Background when she was deployed. Mr. Adair provided

The Committee was charged with
the responsibility to review and make
recommendations regarding child custody
issues as they impact those persons deployed for
military service.
Committee Activities
The Committee held a hearing on the topic
on November 8, 2007.
The Committee was provided a copy of the
recently enacted North Carolina law on Custody,
Visitation and Military Orders, North Carolina
Session Law 2007-175, HB 634.
Stacey Adair, citizen, related the details of
his sister’s problems with custody of her child
testimony on the deficiencies in the Service
Members Civil Relief Act (SCRA) as it relates
to the custody of minor children. He discussed
the need for additional protections for Kansas’
deployed service members. He noted the federal
law should be changed to ensure soldiers can
regain custody of their children at the end of
their deployments.
Matthew Shelton, Chief of Legal Assistance,
Department of the Army, Fort Riley, Kansas,
addressed the impediments to quick resolution
of custody issues. He also discussed the current
protections available to soldiers to deal with
deployment custody issues. SCRA provides a
stay in any civil proceedings in which a service
member cannot participate in the proceeding
due to military service. The greatest problem
with SCRA is that it does not account for the

Kansas Legislative Research Department 5-32 2007 Judiciary

best interests of the children involved in custody
disputes. Custody issues can be prevented by
requiring the courts to address deployments
in parenting plans where either parent is a
servicemember.
Colonel Bruce Woolpert, Legal Adviser to
the Adjutant General and a Judge Advocate in
the Kansas Army National Guard, commented
on the important topic of child custody and
visitation issues for temporary duty, mobilized
and deployed service members. He cited the
North Carolina statute effective October 1, 2007,
that addresses expedited hearings, electronic
testimony, delegation of visitation rights, and
automatic termination of temporary custody
orders. He urged consideration be given to
passing similar legislation so that Kansas service
members, as well as their minor children, are
protected from the loss of custodial arrangements
and disruption of family contact due to the service
member’s being deployed.
Ronald W. Nelson, attorney, Nelson & Booth,
Shawnee Mission, Kansas provided information
on issues surrounding child custody disputes with
military service members by written testimony
only.
Trip Shawver, attorney at law, Wichita,
whose primary focus is family law and whose
specialty is working with military members,
set out court cases he had been involved in
Kansas Legislative Research Department
where the best interest of the children had not
been considered. He cited recent court cases
involving child custody of service members. He
suggested KSA 60-1610 needs to be amended.
He provided written testimony only.
Conclusions and Recommendations
Committee discussion revealed a consensus
that the North Carolina law was a good model. It
was suggested, however, that requiring a family
parenting plan was a good addition to the model.
The Committee concluded that this may address
the problem of a service member losing custody
of a child because of deployment.
The Committee recommends legislation
incorporating all of the North Carolina
provisions, except on 2(f), and adding a provision
that a parenting plan that specifically addresses
deployment be considered at the time a divorce
is granted. Additionally, the legislation would
include that Kansas would retain jurisdiction
unless the parents agree.
Section 2(f) of the North Carolina legislation
regarding electronic communications is not in
the draft legislation because the consensus was it
is better addressed in the Supreme Court Rules.
The Committee approved the Chairperson
sending a letter to the Supreme Court requesting
a rule change or creation of a new rule.
5-33 2007 Judiciary