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Trick in special Kan. session is limiting focus

7/29/2013

By JOHN HANNA

Associated Press

TOPEKA -- With Kansas officials voicing strong support for quickly rewriting the state's "Hard 50" criminal sentencing law, the biggest issue facing the Legislature's leaders during its coming special session could be keeping lawmakers' focus from wandering.

Gov. Sam Brownback called the special session last week, and it is scheduled to convene Sept. 3. His action came at the request of Attorney General Derek Schmidt, in response to a U.S. Supreme Court decision last month that raised questions about the law's constitutionality. The statute allows judges to sentence convicted murderers to life in prison with no chance of parole for 50 years.

Brownback, Schmidt and fellow Republicans leaders in the GOP-dominated Legislature don't believe the special session needs to last more than a few days.

But a governor can't limit the scope of a special session; rank-and-file lawmakers can introduce their own bills, and state laws could compel the Senate to consider appointments made by Brownback. Also, legislators and interest groups will face the temptation to lobby for proposals still pending when lawmakers formally adjourned their annual session in June.

"Calling a special session is like opening a can of worms that can only be opened from the inside," said Senate Majority Leader Terry Bruce, a Hutchinson Republican. "You're going to have to say no to a lot of other good ideas."

Schmidt's push last week for a special session quickly received bipartisan support from legislators and district attorneys, strong backing of law enforcement groups, inspiring plenty of rhetoric about how quick action was necessary to honor victims and protect Kansans from atrocious killers. Failing to act could leave officials open to questions about whether they're as tough as they should be on violent crime -- with Brownback, Schmidt and all 125 House members facing election next year.

Those factors squelched meaningful debate over whether waiting until the Legislature's next annual session convenes in January to rewrite the law really is a threat to public safety.

An offender convicted of premeditated first-degree murder who doesn't receive the "Hard 50" still gets a life sentence, but with parole eligibility in 25 years.

In Kansas, judges have determined whether aggravating factors in a killing -- such as a victim being tortured or the offender shooting into a crowd -- warrant the "Hard 50."

The U.S. Supreme Court's ruling last month came in a Virginia case and declared juries, not judges, must consider whether facts in a criminal case trigger mandatory minimum sentences.

Schmidt and key lawmakers already generally agree the key fix is having juries weigh factors in favor and against a "Hard 50" sentence. The state already has a similar process in capital cases, to determine whether the sentence is death or life in prison with no chance of parole.

Brownback said in announcing the special session he hopes lawmakers can wrap up their work in three days.

And House Speaker Ray Merrick, a Stilwell Republican, said in a statement, "Our intention is to limit the time and scope of the special session to this single issue."

Republican leaders have some tools at their disposal. A special session is self-contained -- bills from regular sessions don't carry over. GOP leaders assign legislation to committees and set each chamber's debate calendar, subject to supermajority votes to overrule their decisions.

But two changes enacted this year for the Kansas Court of Appeals could prevent a one-issue special session.

The Legislature authorized a new seat on the appellate court and enacted law saying the governor would appoint the new judge, subject to Senate confirmation. Previously, a nominating commission screened applicants and named three finalists, with no role for lawmakers after the governor made the appointment.

Brownback must nominate a new Court of Appeals judge by Aug. 29. Bruce said he's researching whether the new appointments law will require the Senate to consider the appointment during the special session.

The Senate majority leader also is researching whether other appointments made by the governor after lawmakers wrapped up this year's regular session must be considered during the special session.

And Senate Minority Leader Anthony Hensley, a Topeka Democrat, said if lawmakers are responding to U.S. Supreme Court decisions that raise doubts about the constitutionality of Kansas laws, there's another they could consider.

In June, the high court struck down an Arizona law requiring new voters to provide proof of their U.S. citizenship. Kansas has a similar law, though Secretary of State Kris Kobach, a former law professor who pushed for its enactment, said it doesn't have the same defects as the Arizona statute. Hensley is a critic of the law.

Meanwhile, the longer legislators meet, the more danger there is groups and lawmakers will press favored issues because, as Bruce said, "Idle minds can be very creative."

"Part of the problem going into this is that you're going to have folks, you're going to have some organizations, come to you and say, 'Hey, you didn't get to my bill in the regular session,' " he said.