CHAPTER 159
HOUSE BILL No. 2352
(Amends Chapters 35 and 57)
An Act concerning courts; relating to district magistrate
judges, jurisdiction, felony arraign-
ments and residency requirements; appeals by prosecution to the
court of appeals;
amending K.S.A. 20-310b, 20-334, 20-2915, 22-2902, 22-3206 and
22-3602 and K.S.A.
1998 Supp. 20-302b and repealing the existing sections; also
repealing K.S.A. 1998 Supp.
20-302b, as amended by Section 13 of 1999 House Bill No. 2206, and
20-302b, as
amended by Section 1 of 1999 Senate Bill No. 91.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1998 Supp.
20-302b is hereby amended to read as
follows: 20-302b. (a) A district magistrate judge shall have the
jurisdiction,
and power and duty, in any case in which a
violation of the laws of the
state is charged, to conduct the trial of traffic infractions,
cigarette or
tobacco infractions or misdemeanor charges and
to conduct the prelimi-
nary examination of felony charges and to hear felony
arraignments sub-
ject to assignment pursuant to K.S.A. 20-329 and amendments
thereto. In
civil cases, a district magistrate judge shall have concurrent
jurisdiction,
powers and duties with a district judge, except that, unless
otherwise
specifically provided in subsection (b), a district magistrate
judge shall
not have jurisdiction or cognizance over the following actions:
(1) Any action, other than an action
seeking judgment for an unse-
cured debt not sounding in tort and arising out of a contract for
the
provision of goods, services or money, in which the amount in
contro-
versy, exclusive of interests and costs, exceeds $10,000, except
that in
actions of replevin, the affidavit in replevin or the verified
petition fixing
the value of the property shall govern the jurisdiction; nothing in
this
paragraph shall be construed as limiting the power of a district
magistrate
judge to hear any action pursuant to the Kansas probate code or to
issue
support orders as provided by paragraph (6) of this subsection;
(2) actions against any officers of the
state, or any subdivisions
thereof, for misconduct in office;
(3) actions for specific performance of
contracts for real estate;
(4) actions in which title to real estate
is sought to be recovered or
in which an interest in real estate, either legal or equitable, is
sought to
be established, except that nothing in this paragraph shall be
construed
as limiting the right to bring an action for forcible detainer as
provided
in the acts contained in article 23 of chapter 61 of the Kansas
Statutes
Annotated, and any acts amendatory thereof or supplemental thereto;
and
nothing in this paragraph shall be construed as limiting the power
of a
district magistrate judge to hear any action pursuant to the Kansas
probate
code;
(5) actions to foreclose real estate
mortgages or to establish and fore-
close liens on real estate as provided in the acts contained in
article 11 of
chapter 60 of the Kansas Statutes Annotated, and any acts
amendatory
thereof or supplemental thereto;
(6) actions for divorce, separate
maintenance or custody of minor
children, except that nothing in this paragraph shall be construed
as lim-
iting the power of a district magistrate judge to: (A) Hear any
action
pursuant to the Kansas code for care of children or the Kansas
juvenile
justice code; (B) establish, modify or enforce orders of support,
including,
but not limited to, orders of support pursuant to the Kansas
parentage
act, K.S.A. 23-451 et seq., 39-718a, 39-718b, 39-755 or
60-1610 or K.S.A.
23-4,105 through 23-4,118, 23-4,125 through 23-4,137, 38-1542,
38-1543
or 38-1563, and amendments thereto; or (C) enforce orders granting
a
parent visitation rights to the parent's child;
(7) habeas corpus;
(8) receiverships;
(9) change of name;
(10) declaratory judgments;
(11) mandamus and quo warranto;
(12) injunctions;
(13) class actions;
(14) rights of majority; and
(15) actions pursuant to the
protection from abuse act; and
(16) actions pursuant to
K.S.A. 59-29a01 et seq. and amendments
thereto.
(b) Notwithstanding the provisions of
subsection (a), in the absence,
disability or disqualification of a district judge, a district
magistrate judge
may:
(1) Grant a restraining order, as
provided in K.S.A. 60-902 and
amendments thereto;
(2) appoint a receiver, as provided in
K.S.A. 60-1301 and amend-
ments thereto; and
(3) make any order authorized by K.S.A.
60-1607 and amendments
thereto; and.
(4) grant any order authorized by
the protection from abuse act.
(c) In accordance with the limitations
and procedures prescribed by
law, and subject to any rules of the supreme court relating
thereto, any
appeal permitted to be taken from an order or final decision of a
district
magistrate judge shall be tried and determined de novo by a
district judge,
except that in civil cases where a record was made of the action or
pro-
ceeding before the district magistrate judge, the appeal shall be
tried and
determined on the record by a district judge.
(d) Upon motion of a party, the
administrative chief judge may reas-
sign an action from a district magistrate judge to a district
judge.
Sec. 2. K.S.A. 20-310b is hereby
amended to read as follows: 20-
310b. (a) Upon stipulation of the parties to an action, the court
may order
the action to be heard and determined by a temporary judge who is
a
retired justice of the supreme court, retired judge of the court of
appeals
or retired judge of the district court. Such temporary judge shall
be sworn
and empowered to act as judge in the action until its final
determination.
(b) Any action before a temporary judge
pursuant to this section shall
be conducted in the same manner as any other action before a judge
of
the district court and any order entered by such temporary judge
may be
appealed and enforced in the same manner as a similar order of a
judge
of the district court.
(c) If a person acting as temporary judge
pursuant to this section is
a retired district magistrate judge, the powers and
duties jurisdiction of
such temporary judge shall be limited to the powers and
duties jurisdic-
tion of a district magistrate judge and appeals of orders of
such temporary
judge shall be governed by the laws governing appeals from orders
of
district magistrate judges.
(d) The court shall fix the compensation
of a temporary judge acting
pursuant to this section and such compensation shall be charged
against
any or all parties to the action, or paid out of any fund or
subject matter
of the action which is in the custody of the court, as directed by
the court.
Sec. 3. K.S.A. 20-334 is hereby
amended to read as follows: 20-334.
(a) Subject to the provisions of K.S.A. 20-2909 and amendments
thereto,
any person who is elected, retained in office or appointed as a
district
judge shall:
(1) Have been regularly admitted to
practice law in the state of Kan-
sas;
(2) be a resident of the judicial
district for which elected or appointed
to serve at the time of taking the oath of office and shall
maintain resi-
dency in the judicial district while holding office; and
(3) for a period of at least five years,
have engaged in the active
practice of law as a lawyer, judge of a court of record or any
court in this
state, full-time teacher of law in an accredited law school or any
combi-
nation thereof.
(b) Any person who is elected, retained
in office or appointed as a
district magistrate judge shall:
(1) Be a graduate of a high school or
secondary school or the equiv-
alent thereof;
(2) be a resident of the county for which
elected or appointed to
serve at the time of taking the oath of office and shall
maintain residency
in the county while holding office; and
(3) if not regularly admitted to practice
law in Kansas, be certified
by the supreme court, in the manner prescribed by K.S.A. 20-337
and
amendments thereto, as qualified to serve as a district magistrate
judge.
Sec. 4. K.S.A. 20-2915 is hereby
amended to read as follows: 20-
2915. (a) Whenever a vacancy in the office of district magistrate
judge
exists at the time the appointment to fill such vacancy is
made, as provided
in K.S.A. 20-2914 and amendments thereto, the appointment
shall be
effective at the time it is made, but where any such appointment is
made
to fill a vacancy which will occur at a future date, such
appointment shall
not take effect until said such date.
(b) Any person appointed to the office of
district magistrate judge,
as provided in K.S.A. 20-2914 and amendments thereto, shall
commence
upon the duties of office on the date such appointment takes
effect, and
any such person so appointed shall have all
the rights, privileges, powers
and duties jurisdiction prescribed by law
for the office of district magis-
trate judge. Except as otherwise provided in K.S.A. 20-337 and
amend-
ments thereto, any such judge shall be eligible for
retention in office in
the same manner and under the same conditions prescribed by law
for
the retention of district judges in judicial districts which have
approved
the proposition of nonpartisan selection of district court
judges.
Sec. 5. K.S.A. 22-2902 is hereby
amended to read as follows: 22-
2902. (1) Every person arrested on a warrant charging a felony or
served
with a summons charging a felony shall have a right to a
preliminary
examination before a magistrate, unless such warrant has been
issued as
a result of an indictment by a grand jury.
(2) The preliminary examination shall be
held before a magistrate of
a county in which venue for the prosecution lies within 10 days
after the
arrest or personal appearance of the defendant. Continuances may
be
granted only for good cause shown.
(3) The defendant shall not enter a plea
at the preliminary exami-
nation. The defendant shall be personally present and except for
witnesses
who are children less than 13 years of age, the witnesses shall be
examined
in the defendant's presence. The defendant's voluntary absence
after the
preliminary examination has been begun in the defendant's presence
shall
not prevent the continuation of the examination. Except for
witnesses
who are children less than 13 years of age, the defendant shall
have the
right to cross-examine witnesses against the defendant and
introduce ev-
idence in the defendant's own behalf. If from the evidence it
appears that
a felony has been committed and there is probable cause to believe
that
a felony has been committed by the defendant, the magistrate shall
order
the defendant bound over to the district judge having jurisdiction
to try
the case; otherwise, the magistrate shall discharge the defendant.
When
the victim of the felony is a child less than 13 years of age, the
finding of
probable cause as provided in this subsection may be based upon
hearsay
evidence in whole or in part presented at the preliminary
examination by
means of statements made by a child less than 13 years of age on a
vid-
eotape recording or by other means.
(4) If the defendant waives preliminary
examination, the magistrate
shall order the defendant bound over to the district judge having
juris-
diction to try the case.
(5) Any judge of the district court may
conduct a preliminary ex-
amination, and a district judge may preside at the trial of any
defendant
even though such judge presided at the preliminary examination of
such
defendant.
(6) The complaint or information, as
filed by the prosecuting attor-
ney pursuant to K.S.A. 22-2905 and amendments thereto, shall serve
as
the formal charging document at trial. When a defendant and
prosecuting
attorney reach agreement on a plea of guilty or nolo
contendere, they the
defendant and the prosecuting attorney shall notify the
district court of
their such agreement and arrange for a time
to plead, pursuant to K.S.A.
22-3210 and amendments thereto.
(7) The district judge
of the district court, when conducting the pre-
liminary examination, shall have the discretion to conduct
arraignment,
subject to assignment pursuant to K.S.A. 20-329 and amendments
thereto,
at the conclusion of the preliminary examination.
Sec. 6. K.S.A. 22-3206 is hereby
amended to read as follows: 22-
3206. (1) A defendant charged with a felony in an information shall
appear
for arraignment upon such information in the district court not
later than
the next required day of court after the order of the magistrate
binding
over the defendant for trial, unless a later time is requested or
consented
to by the defendant and approved by the court or unless continued
by
order of the court.
(2) A defendant charged with a felony in
an indictment shall appear
for arraignment upon such indictment in the district court not
later than
the next required day of court after arrest upon a warrant issued
on the
indictment, unless a later time is requested or consented to by the
de-
fendant and approved by the court or unless continued by order of
the
court.
(3) If the preliminary examination is
waived, arraignment shall be
conducted at the time originally scheduled for the preliminary
examina-
tion if there is available a
district judge of the district court is
available,
subject to assignment pursuant to K.S.A. 20-329 and amendments
thereto
to conduct the arraignment.
(4) In every judicial
district, The district judges thereof
in every
judicial district shall provide by order for one or more
required days of
court each month in each county of the district, at which time a
district
judge will be personally present at the courthouse for the purpose
of
conducting arraignments.
Sec. 7. K.S.A. 22-3602 is hereby
amended to read as follows: 22-
3602. (a) Except as otherwise provided, an appeal to the appellate
court
having jurisdiction of the appeal may be taken by the defendant as
a
matter of right from any judgment against the defendant in the
district
court and upon appeal any decision of the district court or
intermediate
order made in the progress of the case may be reviewed. No appeal
shall
be taken by the defendant from a judgment of conviction before a
district
judge upon a plea of guilty or nolo contendere, except that
jurisdictional
or other grounds going to the legality of the proceedings may be
raised
by the defendant as provided in K.S.A. 60-1507 and amendments
thereto.
(b) Appeals to the supreme court
may be taken by the prosecution
from cases before a district judge as a matter of right in
the following
cases, and no others: Appeals to the court of
appeals may be taken by the
prosecution from cases before a district judge as a matter of
right in the
following cases, and no others:
(1) From an order dismissing a complaint,
information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the
prosecution; or
(4) upon an order granting a new trial in
any case involving a class
A or B felony or for crimes committed on or after July 1, 1993, in
any
case involving an off-grid crime.
(c) Procedures for appeals by the
prosecution enumerated in subsec-
tion (b) shall be as provided in supreme court
rules.
(d) Appeals to a district judge
may be taken by the prosecution from
cases before a district magistrate judge as a matter of right in
the cases
enumerated in subsection (b) and from orders enumerated in K.S.A.
22-
3603 and amendments thereto.
(d) (e) Any
criminal case on appeal to the court of appeals may be
transferred to the supreme court as provided in K.S.A. 20-3016 and
20-
3017, and amendments thereto, and any party to such case may
petition
the supreme court for review of any decision of the court of
appeals as
provided in subsection (b) of K.S.A. 20-3018 and amendments
thereto,
except that any such party may appeal to the supreme court as a
matter
of right in any case in which a question under the constitution of
either
the United States or the state of Kansas arises for the first time
as a result
of the decision of the court of appeals.
(e) (f) For
crimes committed on or after July 1, 1993, an appeal by
the prosecution or the defendant relating to sentences imposed
pursuant
to a presumptive sentencing guidelines system as provided in K.S.A.
21-
4701 et seq. and amendments thereto, shall be as provided in
K.S.A. 21-
4721 and amendments thereto.
Sec. 8. K.S.A. 20-310b, 20-334,
20-2915, 22-2902, 22-3206 and 22-
3602 and K.S.A. 1998 Supp. 20-302b, 20-302b, as amended by
Section
13 of 1999 House Bill No. 2206, and 20-302b, as amended by section
1
of 1999 Senate Bill No. 91, are hereby repealed.
Sec. 9. This act shall take effect
and be in force from and after its
publication in the statute book.
Approved May 12, 1999.
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