Text of KS HB 2436 (2024)

Session of 2023 HOUSE BILL No. 2436 By Committee on Appropriations 2-22 AN ACT concerning environmental, social and governance criteria involving public contracts and investments; enacting the Kansas public investments and contracts protection act; prohibiting the state or a political subdivision from giving preferential treatment to or discriminating against companies based on environmental, social and governance criteria in procuring or letting contracts; requiring fiduciaries of the Kansas public employees retirement system to act solely in the financial interest of participants and beneficiaries of the system; restricting state agencies from adopting environmental, social and governance criteria or requiring any person or business to operate in accordance with such criteria; providing for enforcement of such act by the attorney general; amending K.S.A. 2022 Supp. 74-4921 and repealing the existing section. Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) The provisions of sections 1 through 5, and amendments thereto, shall be known and may be cited as the Kansas public investments and contracts protection act. (b) As used in this act: (1) "Act" means the Kansas public investments and contracts protection act. (2) "Board" means the board of trustees of the Kansas public employees retirement system. (3) "Company" means any organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company or other entity of business association, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of such entities or business associations that exists for the purpose of making a profit. (4) "Environmental, social and governance criteria" means a preferential treatment or a discrimination evaluation conducted by the state, any agency of the state, any political subdivision of the state, or any instrumentality thereof, that considers whether a company meets or fails to meet one or more of the following criteria: (A) Engaging in the exploration, production, utilization, transportation, sale or manufacturing of: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 HB 2436 2 (i) Fossil fuel-based energy; (ii) nuclear energy; or (iii) any other natural resource; (B) engaging in the production of agriculture; (C) engaging in the production of lumber; (D) engaging in mining; (E) emitting greenhouse gases or not disclosing or offsetting such greenhouse gas emissions; (F) engaging in the manufacturing, distribution or sale of firearms, firearms accessories, ammunition or ammunition components; (G) having a governing corporate board or other officers whose race, ethnicity, sex or sexual orientation meets or does not meet any criterion; (H) facilitating or assisting or not facilitating or assisting employees in obtaining abortions or gender reassignment services; and (I) doing business with any company described by subparagraphs (A) through (H). (5) "Fiduciary" means any person acting on behalf of the board or system as an investment manager, proxy advisor or contractor, including the system's board of trustees. (6) "Fiduciary commitment" means any evidence of a fiduciary's purpose in managing assets as a fiduciary, including, but not limited to, any of the following in a fiduciary's capacity as a fiduciary: (A) Advertisements, statements, explanations, reports, letters to clients, communications with portfolio companies, statements of principles or commitments; or (B) participation in, affiliation with or status as a signatory to any coalition, initiative, joint statement of principles or agreement. (7) (A) "Financial" means having been prudently determined by a fiduciary to have a material effect on the financial risk or the financial return of an investment. (B) "Financial" does not include any action taken or factor considered by a fiduciary with any purpose whatsoever to further social, political or ideological interests. (C) A fiduciary may reasonably be determined to have taken an action or considered a factor with a purpose to further social, political or ideological interests based upon evidence indicating such a purpose, including, but not limited to, any fiduciary commitment to further, through portfolio company engagement, board or shareholder votes or otherwise as a fiduciary, any of the following beyond what controlling federal or state law requires: (i) Eliminating, reducing, offsetting or disclosing greenhouse gas emissions; (ii) instituting or assessing corporate board, employment, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 3 composition, compensation or disclosure criteria that incorporates characteristics protected under state law; (iii) divesting from, limiting investment in or limiting the activities or investments of any company for failing or not committing to meet environmental standards or disclosures; (iv) accessing abortion, sex or gender change or transgender surgery; or (v) divesting from, limiting investment in or limiting the activities or investments of any company that engages in, facilitates or supports the manufacture, import, distribution, marketing, advertising, sale or lawful use of firearms, ammunition or component parts and accessories of firearms or ammunition. (8) "Fossil fuels" means coal, natural gas, petroleum or oil formed by natural processes through decomposition of dead organisms. (9) "Natural resources" means fossil fuels, minerals, metal ores or any other nonrenewable or finite resource that cannot be readily replaced by natural means at the speed at which it is consumed. (10) "System" means the Kansas public employees retirement system. New Sec. 2. (a) The state, any agency of the state, any political subdivision of the state, or any instrumentality thereof, including the pooled money investment board established by K.S.A. 75-4221a, and amendments thereto, when engaged in procuring or letting contracts for any purpose, shall ensure that bidders, offerors, contractors or subcontractors are not given preferential treatment or discriminated against based on an environmental, social and governance criteria. (b) The state, any agency of the state, any political subdivision of the state or any instrumentality thereof, including the pooled money investment board established by K.S.A. 75-4221a, and amendments thereto, shall not adopt any procurement regulation or policy that causes any bidder, offeror, contractor or subcontractor to be given preferential treatment or be subject to discrimination based on an environmental, social and governance criteria, except as otherwise specifically permitted or required by law. New Sec. 3. (a) In making and supervising investments of the system, the system and any investment manager, proxy advisor or contractor thereof shall discharge its duties solely in the financial interest of the participants and beneficiaries for the exclusive purposes of: (1) Providing financial benefits to participants and their beneficiaries; and (2) defraying reasonable expenses of administering the system. (b) An investment manager, proxy advisor or contractor retained by the system shall be subject to the same fiduciary duties as the system's board of trustees. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 4 (c) A fiduciary shall consider only financial factors when discharging such fiduciary's duties with respect to the system. (d) All shares held directly or indirectly by or on behalf of the system or the participants and their beneficiaries shall be voted solely in the financial interest of system participants and their beneficiaries. (e) Unless no economically practicable alternative is available, the system shall not grant proxy voting authority to any person who is not a part of the system, unless such person has a practice of, and in writing commits to, follow guidelines that match the system's obligation to act solely upon financial factors. (f) Unless no economically practicable alternative is available, in the selection of any proxy advisor, the system shall give preference to a proxy advisor service that commits in writing to engage in voting shares and making recommendations in a strictly fiduciary manner, and without consideration of policy objectives that are not the express policy objectives of the system. (g) Unless no economically practicable alternative is available, system assets shall not be entrusted to a fiduciary, unless such fiduciary has a practice of, and in writing commits to, following guidelines, when engaging with portfolio companies and voting shares or proxies, that follow the system's obligation to act solely upon financial factors and not upon policy considerations that are not the express policy objectives of the system. (h) Unless no economically practicable alternative is available, an investment manager or contractor shall not adopt a practice of following the recommendations of a proxy advisor or other service provider, unless such advisor or service provider has a practice of, and in writing commits to, following proxy voting guidelines that follow the system's obligation to act solely upon financial factors. (i) All proxy votes shall be tabulated and reported annually to the system's board of trustees and to the legislative coordinating council. For each vote, the report shall contain a vote caption, the system's vote, the recommendation of company management and, if applicable, the proxy advisor's recommendation. Such reports shall be posted on the system's website for review by the public. New Sec. 4. (a) As used in this section, "state agency" means an office, board, commission, department, council, bureau, governmental entity or other agency of state government having authority to adopt or enforce rules and regulations. (b) No state agency shall share or publish information, adopt policies, adopt rules and regulations or issue guidelines for purposes of environmental, social and governance criteria that restrict the ability of any industry to offer products or services. No state agency shall require any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 5 person or business to adopt or operate in accordance with environmental, social and governance criteria. New Sec. 5. (a) This act or any contract subject to this act may be enforced by the attorney general. (b) If the attorney general has reasonable cause to believe that a person has engaged in, is engaging in or is about to engage in a violation of this act, the attorney general may require: (1) Such person to file on such forms as the attorney general may prescribe a statement or report in writing, under oath, as to all the facts and circumstances concerning the violation; and (2) the filing of such other data and information as the attorney general may deem necessary. (c) In addition to any other remedies available at law or equity, an investment manager or contractor of the system that serves as a fiduciary and violates the provisions of section 3, and amendments thereto, shall be obligated to pay damages to the state in an amount equal to three times all moneys paid to the investment manager or contractor by the system for the services of such investment manager or contractor. Sec. 6. K.S.A. 2022 Supp. 74-4921 is hereby amended to read as follows: 74-4921. (1) There is hereby created in the state treasury the Kansas public employees retirement fund. All employee and employer contributions shall be deposited in the state treasury to be credited to the Kansas public employees retirement fund. The fund is a trust fund and shall be used solely for the exclusive purpose of providing benefits to members and member beneficiaries and defraying reasonable expenses of administering the fund. Investment income of the fund shall be added or credited to the fund as provided by law. All benefits payable under the system, refund of contributions and overpayments, purchases or investments under the law and expenses in connection with the system unless otherwise provided by law shall be paid from the fund. The director of accounts and reports is authorized to draw warrants on the state treasurer and against such fund upon the filing in the director's office of proper vouchers executed by the chairperson or the executive director of the board. As an alternative, payments from the fund may be made by credits to the accounts of recipients of payments in banks, savings and loan associations and credit unions. A payment shall be so made only upon the written authorization and direction of the recipient of payment and upon receipt of such authorization such payments shall be made in accordance therewith. Orders for payment of such claims may be contained on: (a) A letter, memorandum, telegram, computer printout or similar writing,; or (b) any form of communication, other than voice, which is registered upon magnetic tape, disc or any other medium designed to capture and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 6 contain in durable form conventional signals used for the electronic communication of messages. (2) The board shall have the responsibility for the management of the fund and shall discharge the board's duties with respect to the fund solely in the interests of the members and beneficiaries of the system for the exclusive purpose of providing benefits to members and such member's beneficiaries and defraying reasonable expenses of administering the fund and shall invest and reinvest moneys in the fund and acquire, retain, manage, including the exercise of any voting rights and disposal of investments of the fund within the limitations and according to the powers, duties and purposes as prescribed by this section. (3) Moneys in the fund shall be invested and reinvested to achieve the investment objective which is preservation of the fund to provide benefits to members and member beneficiaries, as provided by law and accordingly providing that the moneys are as productive as possible, subject to the standards set forth in this act. No moneys in the fund shall be invested or reinvested if the sole or primary an investment objective is for economic development or social purposes or objectives. (4) In investing and reinvesting moneys in the fund and in acquiring, retaining, managing and disposing of investments of the fund, the board shall exercise the judgment, care, skill, prudence and diligence under the circumstances then prevailing, which persons of prudence, discretion and intelligence acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims by diversifying the investments of the fund so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so, and not in regard to speculation but in regard to the permanent disposition of similar funds, considering the probable income as well as the probable safety of their capital. (5) Notwithstanding subsection (4): (a) Total investments in common stock may be made in the amount of up to 60% of the total book value of the fund; (b) the board may invest or reinvest moneys of the fund in alternative investments if the following conditions are satisfied: (i) The total of the annual net commitment to alternative investments does not exceed 5% of the total market value of investment assets of the fund as measured from the end of the preceding calendar year; (ii) if in addition to the system, there are at least two other qualified institutional buyers, as defined by section (a)(1)(i) of rule 144A, securities act of 1933; (iii) the system's share in any individual alternative investment is limited to an investment representing not more than 20% of any such individual alternative investment; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 7 (iv) the system has received a favorable and appropriate recommendation from a qualified, independent expert in investment management or analysis in that particular type of alternative investment; (v) the alternative investment is consistent with the system's investment policies and objectives as provided in subsection (6); (vi) the individual alternative investment does not exceed more than 2.5% of the total alternative investments made under this subsection. If the alternative investment is made pursuant to participation by the system in a multi-investor pool, the 2.5% limitation contained in this subsection is applied to the underlying individual assets of such pool and not to investment in the pool itself. The total of such alternative investments made pursuant to participation by the system in any one individual multi- investor pool shall not exceed more than 20% of the total of alternative investments made by the system pursuant to this subsection. Nothing in this subsection requires the board to liquidate or sell the system's holdings in any alternative investments made pursuant to participation by the system in any one individual multi-investor pool held by the system on the effective date of this act, unless such liquidation or sale would be in the best interest of the members and beneficiaries of the system and be prudent under the standards contained in this section. The 20% limitation contained in this subsection shall not have been violated if the total of such investment in any one individual multi-investor pool exceeds 20% of the total alternative investments of the fund as a result of market forces acting to increase the value of such a multi-investor pool relative to the rest of the system's alternative investments; however, the board shall not invest or reinvest any moneys of the fund in any such individual multi-investor pool until the value of such individual multi-investor pool is less than 20% of the total alternative investments of the fund; (vii) the board has received and considered the investment manager's due diligence findings submitted to the board as required by subsection (6) (c) (6); (viii) prior to the time the alternative investment is made, the system has in place procedures and systems to ensure that the investment is properly monitored and investment performance is accurately measured; and (ix) the total of alternative investments does not exceed 15% of the total investment assets of the fund. The 15% limitation contained in this subsection shall not have been violated if the total of such alternative investments exceeds 15% of the total investment assets of the fund, based on the fund total market value, as a result of market forces acting to increase the value of such alternative investments relative to the rest of the system's investments. However, the board shall not invest or reinvest any moneys of the fund in alternative investments until the total value of such 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 8 alternative investments is less than 15% of the total investment assets of the fund based on the market value. If the total value of the alternative investments exceeds 15% of the total investment assets of the fund, the board shall not be required to liquidate or sell the system's holdings in any alternative investment held by the system, unless such liquidation or sale would be in the best interest of the members and beneficiaries of the system and is prudent under the standards contained in this section.; (c) for purposes of this act section, "alternative investment" includes a broad group of investments that are not one of the traditional asset types of public equities, fixed income, cash or real estate. Alternative investments are generally made through limited partnership or similar structures, are not regularly traded on nationally recognized exchanges and thus are relatively illiquid, and exhibit lower correlations with more liquid asset types such as stocks and bonds. Alternative investments generally include, but are not limited to, private equity, private credit, hedge funds, infrastructure, commodities and other investments which that have the characteristics described in this paragraph; and (c)(d) except as otherwise provided, the board may invest or reinvest moneys of the fund in real estate investments if the following conditions are satisfied: (i) The system has received a favorable and appropriate recommendation from a qualified, independent expert in investment management or analysis in that particular type of real estate investment; (ii) the real estate investment is consistent with the system's investment policies and objectives as provided in subsection (6); and (iii) the system has received and considered the investment manager's due diligence findings. (6) (a) Subject to the objective set forth in subsection (3) and the standards set forth in subsections (4) and (5) the board shall formulate policies and objectives for the investment and reinvestment of moneys in the fund and the acquisition, retention, management and disposition of investments of the fund. Such policies and objectives shall include: (a)(i) Specific asset allocation standards and objectives; (b)(ii) establishment of criteria for evaluating the risk versus the potential return on a particular investment; (c)(iii) a requirement that all investment managers submit such manager's due diligence findings on each investment to the board or investment advisory committee for approval or rejection prior to making any alternative investment; (d)(iv) a requirement that all investment managers shall immediately report all instances of default on investments to the board and provide the board with recommendations and options, including, but not limited to, curing the default or withdrawal from the investment; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 9 (e)(v) establishment of criteria that would be used as a guideline for determining when no additional add-on investments or reinvestments would be made and when the investment would be liquidated. (b) The board shall review such policies and objectives, make changes considered necessary or desirable and readopt such policies and objectives on an annual basis. (7) The board may enter into contracts with one or more persons whom the board determines to be qualified, whereby the persons undertake to perform the functions specified in subsection (2) to the extent provided in the contract. Performance of functions under contract so entered into shall be paid pursuant to rates fixed by the board subject to provisions of appropriation acts and shall be based on specific contractual fee arrangements. The system shall not pay or reimburse any expenses of persons contracted with pursuant to this subsection, except that after approval of the board, the system may pay approved investment related expenses subject to provisions of appropriation acts. The board shall require that a person contracted with to obtain commercial insurance which provides for errors and omissions coverage for such person in an amount to be specified by the board, provided that such coverage shall be at least the greater of $500,000 or 1% of the funds entrusted to such person up to a maximum of $10,000,000. The board shall require a person contracted with to give a fidelity bond in a penal sum as may be fixed by law or, if not so fixed, as may be fixed by the board, with corporate surety authorized to do business in this state. Such persons contracted with the board pursuant to this subsection and any persons contracted with such persons to perform the functions specified in subsection (2) shall be deemed to be agents of the board and the system in the performance of contractual obligations. (8) (a) In the acquisition or disposition of securities, the board may rely on the written legal opinion of a reputable bond attorney or attorneys, the written opinion of the attorney of the investment counselor or managers, or the written opinion of the attorney general certifying the legality of the securities. (b) The board shall employ or retain qualified investment counsel or counselors or may negotiate with a trust company to assist and advise in the judicious investment of funds as herein provided. (9) (a) Except as provided in subsection (7) and this subsection, the custody of money and securities of the fund shall remain in the custody of the state treasurer, except that the board may arrange for the custody of such money and securities as it considers advisable with one or more member banks or trust companies of the federal reserve system or with one or more banks in the state of Kansas, or both, to be held in safekeeping by the banks or trust companies for the collection of the principal and interest 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 10 or other income or of the proceeds of sale. The services provided by the banks or trust companies shall be paid pursuant to rates fixed by the board subject to provisions of appropriation acts. (b) The state treasurer and the board shall collect the principal and interest or other income of investments or the proceeds of sale of securities in the custody of the state treasurer and pay same when so collected into the fund. (c) The principal and interest or other income or the proceeds of sale of securities as provided in clause (a) of this subsection (9) shall be reported to the state treasurer and the board and credited to the fund. (10) The board shall with the advice of the director of accounts and reports establish the requirements and procedure for reporting any and all activity relating to investment functions provided for in this act in order to prepare a record monthly of the investment income and changes made during the preceding month. The record will reflect a detailed summary of investment, reinvestment, purchase, sale and exchange transactions and such other information as the board may consider advisable to reflect a true accounting of the investment activity of the fund. (11) The board shall provide for an examination of the investment program annually. The examination shall include an evaluation of current investment policies and practices and of specific investments of the fund in relation to the objective set forth in subsection (3), the standard set forth in subsection (4) and other criteria as may be appropriate, and recommendations relating to the fund investment policies and practices and to specific investments of the fund as are considered necessary or desirable. The board shall include in its annual report to the governor as provided in K.S.A. 74-4907, and amendments thereto, a report or a summary thereof covering the investments of the fund. (12) (a) Any internal assessment or examination of alternative investments of the system performed by any person or entity employed or retained by the board which evaluates or monitors the performance of alternative investments shall be reported to the legislative post auditor so that such report may be reviewed in accordance with the annual financial- compliance audits conducted pursuant to K.S.A. 74-49,136, and amendments thereto. (b) The board shall prepare and submit an alternative investment report to the joint committee on pensions, investments and benefits prior to January 1, 2016. Such report shall include a review of alternative investments of the system with an emphasis on the effects of changes in law pursuant to this act and includes specific investment cost and market value information of each individual alternative investment. Sec. 7. K.S.A. 2022 Supp. 74-4921 is hereby repealed. Sec. 8. This act shall take effect and be in force from and after its 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2436 11 publication in the statute book. 1

SENATE Substitute for HOUSE BILL No. 2436 AN ACT concerning abortion; relating to unlawful coercion to obtain an abortion; creating the crime of coercion to obtain an abortion; providing the penalties therefor; providing for enhanced criminal penalties for offenses committed with the intent to compel a woman to obtain an abortion; amending K.S.A. 21-6804 and repealing the existing section. Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) Coercion to obtain an abortion is engaging in coercion with knowledge that a woman is pregnant and with the intent to compel such woman to obtain an abortion when such woman has expressed her desire to not obtain an abortion. (b) Coercion to obtain an abortion, as defined in subsection (a), is: (1) A person felony, and the offender shall be sentenced to not less than 30 days nor more than one year's imprisonment and fined not less than $500 nor more than $5,000; or (2) if committed by the father or the putative father, who is 18 years of age or older at the time of the violation, of the unborn child of a pregnant woman and such pregnant woman is less than 18 years of age at the time of the violation, a person felony, and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $10,000. (c) As used in this section: (1) "Abortion" means the same as defined in K.S.A. 65-6701, and amendments thereto; (2) "coercion" means any of the following: (A) Threatening to harm or physically restrain an individual or the creation or execution of any scheme, plan or pattern intended to cause an individual to believe that failure to perform an act would result in financial harm to, or physical restraint of, an individual; (B) abusing or threatening abuse of the legal system, including threats of arrest or deportation without regard to whether the individual being threatened is subject to arrest or deportation under the laws of this state or the United States; (C) knowingly destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document or any other actual or purported government identification document from an individual without regard to whether the documents are fraudulent or fraudulently obtained; or (D) facilitating or controlling an individual's access to a controlled substance, as defined in K.S.A. 65-4101, and amendments thereto, other than for a legitimate medical purpose; (3) "financial harm" means any of the following: (A) Any loan, promissory note or other credit instrument that provides for interest at a rate that is prohibited by state or federal law; (B) any employment contract or other agreement for the payment of wages that violates the wage payment act, K.S.A. 44-313 et seq., and amendments thereto; (C) extortion as defined in K.S.A. 21-6501, and amendments thereto; or (D) any other adverse financial consequence; and (4) "unborn child" means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth. (d) This section shall be a part of and supplemental to the Kansas criminal code. Sec. 2. K.S.A. 21-6804 is hereby amended to read as follows: 21- 6804. (a) The provisions of this section shall be applicable to the sentencing guidelines grid for nondrug crimes. The following sentencing guidelines grid shall be applicable to nondrug felony crimes: SENATE Substitute for HOUSE BILL No. 2436—page 2 SENATE Substitute for HOUSE BILL No. 2436—page 3 (b) Sentences expressed in the sentencing guidelines grid for nondrug crimes represent months of imprisonment. (c) The sentencing guidelines grid is a two-dimensional crime severity and criminal history classification tool. The grid's vertical axis is the crime severity scale which classifies current crimes of conviction. The grid's horizontal axis is the criminal history scale which classifies criminal histories. (d) The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing court's discretion to enter a departure sentence. The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender's criminal history. (e) (1) The sentencing court has discretion to sentence at any place within the sentencing range. In the usual case it is recommended that the sentencing judge select the center of the range and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure. (2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the: (A) Prison sentence; (B) maximum potential reduction to such sentence as a result of good time; and (C) period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision. (3) In presumptive nonprison cases, the sentencing court shall pronounce the: (A) Prison sentence; and (B) duration of the nonprison sanction at the sentencing hearing. (f) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional nonprison sentence as provided in subsection (q). (g) The sentence for a violation of K.S.A. 21-3415, prior to its repeal, aggravated battery against a law enforcement officer committed prior to July 1, 2006, or a violation of K.S.A. 21-5412(d), and amendments thereto, aggravated assault against a law enforcement officer, which places the defendant's sentence in grid block 6-H or 6-I shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q). (h) When a firearm is used to commit any person felony, the offender's sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q). (i) (1) The sentence for the violation of the felony provision of K.S.A. 21-5414(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and 21- 6416, and amendments thereto, shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-6807, and amendments thereto. (2) If because of the offender's criminal history classification the offender is subject to presumptive imprisonment or if the judge departs from a presumptive probation sentence and the offender is subject to imprisonment, the provisions of this section and K.S.A. 21-6807, and amendments thereto, shall apply and the offender shall not be subject to SENATE Substitute for HOUSE BILL No. 2436—page 4 the mandatory sentence as provided in K.S.A. 21-5823, and amendments thereto. (3) Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 21-5414(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and 21- 6416, and amendments thereto, shall not be served in a state facility in the custody of the secretary of corrections. Prior to imposing any sentence pursuant to this subsection, the court may consider assigning the defendant to a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto. (j) (1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term. (2) Except as otherwise provided in this subsection, as used in this subsection, "persistent sex offender" means a person who: (A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto; and (ii) at the time of the conviction under clause (i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto, in this state or comparable felony under the laws of another state, the federal government or a foreign government; or (B) (i) has been convicted of rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto; and (ii) at the time of the conviction under clause (i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government. (3) Except as provided in subsection (j)(2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony. (k) (1) If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender's sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q). (2) As used in this subsection, "criminal street gang" means any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities: (A) The commission of one or more person felonies; or (B) the commission of felony violations of article 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, or any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009; and (C) its members have a common name or common identifying sign or symbol; and (D) its members, individually or collectively, engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of article 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21- 36a17, prior to their transfer, any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009, or any substantially similar offense from another jurisdiction. SENATE Substitute for HOUSE BILL No. 2436—page 5 (l) Except as provided in subsection (o), the sentence for a violation of K.S.A. 21-5807(a)(1), and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-3715(a) or (b), prior to its repeal, 21-3716, prior to its repeal, K.S.A. 21-5807(a) (1) or (a)(2) or 21-5807(b), and amendments thereto, or any attempt or conspiracy to commit such offense, shall be presumptive imprisonment. (m) The sentence for a violation of K.S.A. 22-4903 or K.S.A. 21- 5913(a)(2), and amendments thereto, shall be presumptive imprisonment. If an offense under such sections is classified in grid blocks 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose an optional nonprison sentence as provided in subsection (q). (n) The sentence for a violation of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, and when such person being sentenced has any combination of two or more prior convictions of K.S.A. 21-3705(b), prior to its repeal, or of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal. (o) (1) The sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has no prior convictions for a violation of K.S.A. 21-3701 or 21-3715, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto; or the sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has one or two prior felony convictions for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto; or the sentence for a felony violation of burglary as defined in K.S.A. 21- 5807(a), and amendments thereto, when such person being sentenced has one prior felony conviction for a violation of K.S.A. 21-3701, 21- 3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto, shall be the sentence as provided by this section, except that the court may order an optional nonprison sentence for a defendant to participate in a drug treatment program, including, but not limited to, an approved aftercare plan, if the court makes the following findings on the record: (A) Substance abuse was an underlying factor in the commission of the crime; (B) substance abuse treatment in the community is likely to be more effective than a prison term in reducing the risk of offender recidivism; and (C) participation in an intensive substance abuse treatment program will serve community safety interests. (2) A defendant sentenced to an optional nonprison sentence under this subsection shall be supervised by community correctional services. The provisions of K.S.A. 21-6824(f)(1), and amendments thereto, shall apply to a defendant sentenced under this subsection. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal. (p) (1) The sentence for a felony violation of theft of property as SENATE Substitute for HOUSE BILL No. 2436—page 6 defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has any combination of three or more prior felony convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto; or the sentence for a violation of burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has any combination of two or more prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto, shall be presumed imprisonment and the defendant shall be sentenced to prison as provided by this section, except that the court may recommend that an offender be placed in the custody of the secretary of corrections, in a facility designated by the secretary to participate in an intensive substance abuse treatment program, upon making the following findings on the record: (A) Substance abuse was an underlying factor in the commission of the crime; (B) substance abuse treatment with a possibility of an early release from imprisonment is likely to be more effective than a prison term in reducing the risk of offender recidivism; and (C) participation in an intensive substance abuse treatment program with the possibility of an early release from imprisonment will serve community safety interests by promoting offender reformation. (2) The intensive substance abuse treatment program shall be determined by the secretary of corrections, but shall be for a period of at least four months. Upon the successful completion of such intensive treatment program, the offender shall be returned to the court and the court may modify the sentence by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If the offender's term of imprisonment expires, the offender shall be placed under the applicable period of postrelease supervision. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal. (q) (1) As used in this section, an "optional nonprison sentence" is a sentence which the court may impose, in lieu of the presumptive sentence, upon making the following findings on the record: (A) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and (B) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or (C) the nonprison sanction will serve community safety interests by promoting offender reformation. (2) Any decision made by the court regarding the imposition of an optional nonprison sentence shall not be considered a departure and shall not be subject to appeal. (r) The sentence for a violation of K.S.A. 21-5413(c)(2), and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal. (s) The sentence for a violation of K.S.A. 21-5512, and amendments thereto, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal. SENATE Substitute for HOUSE BILL No. 2436—page 7 (t) (1) If the trier of fact makes a finding beyond a reasonable doubt that an offender wore or used ballistic resistant material in the commission of, or attempt to commit, or flight from any felony, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 30 months' imprisonment. (2) The sentence imposed pursuant to paragraph (1) shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal. (3) As used in this subsection, "ballistic resistant material" means any: (A) Commercially produced material designed with the purpose of providing ballistic and trauma protection, including, but not limited to, bulletproof vests and kevlar vests; and (B) homemade or fabricated substance or item designed with the purpose of providing ballistic and trauma protection. (u) The sentence for a violation of K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-4018, prior to its repeal, or K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy to commit such offense, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal. (v) The sentence for a third or subsequent violation of K.S.A. 8- 1568, and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal. (w) The sentence for aggravated criminal damage to property as defined in K.S.A. 21-5813(b), and amendments thereto, when such person being sentenced has a prior conviction for any nonperson felony shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal. (x) The sentence for a violation of K.S.A. 21-5807(a)(1), and amendments thereto, shall be presumptive imprisonment if the offense under such paragraph is classified in grid blocks 7-C, 7-D or 7-E. Such sentence shall not be considered a departure and shall not be subject to appeal. (y) (1) Except as provided in paragraph (3), if the trier of fact makes a finding beyond a reasonable doubt that an offender committed a nondrug felony offense, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit a nondrug felony offense, against a law enforcement officer, as defined in K.S.A. 21-5111(p)(1) and (3), and amendments thereto, while such officer was engaged in the performance of such officer's duty, or in whole or in any part because of such officer's status as a law enforcement officer, the sentence for such offense shall be: (A) If such offense is classified in severity level 2 through 10, one severity level above the appropriate level for such offense; and (B) (i) if such offense is classified in severity level 1, except as otherwise provided in clause (ii), imprisonment for life, and such offender shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, such offender shall not be eligible for parole prior to serving 25 years' imprisonment, and such 25 years' imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted. (ii) The provisions of clause (i) requiring the court to impose a SENATE Substitute for HOUSE BILL No. 2436—page 8 mandatory minimum term of imprisonment of 25 years shall not apply if the court finds the offender, because of the offender's criminal history classification, is subject to presumptive imprisonment and the sentencing range exceeds 300 months. In such case, the offender is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range. (2) The sentence imposed pursuant to paragraph (1) shall not be considered a departure and shall not be subject to appeal. (3) The provisions of this subsection shall not apply to an offense described in paragraph (1) if the factual aspect concerning a law enforcement officer is a statutory element of such offense. (z) (1) Notwithstanding K.S.A. 21-5109(b)(2), and amendments thereto, or any other provision of law to the contrary, the sentence for a violation of criminal possession of a weapon by a convicted felon as defined in K.S.A. 21-6304, and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed if the trier of fact makes a finding beyond a reasonable doubt that: (A) The weapon the offender possessed during such violation was a firearm; and (B) such firearm was used by the offender during the commission of any violent felony. (2) The sentence imposed pursuant to paragraph (1) shall not be considered a departure and shall not be subject to appeal. No other sentence shall be permitted. (3) The provisions of this subsection shall not apply to an offender who is prohibited from possessing a weapon pursuant to K.S.A. 21- 6304, and amendments thereto, as a result of a juvenile adjudication. (4) As used in this subsection, "violent felony" means any of the following: (A) Capital murder, as defined in K.S.A. 21-5401, and amendments thereto; (B) murder in the first degree, as defined in K.S.A. 21-5402, and amendments thereto; (C) murder in the second degree, as defined in K.S.A. 21-5403, and amendments thereto; (D) voluntary manslaughter, as defined in K.S.A. 21-5404, and amendments thereto; (E) kidnapping, as defined in K.S.A. 21-5408(a)(1), and amendments thereto, or aggravated kidnapping, as defined in K.S.A. 21-5408(b), and amendments thereto; (F) aggravated assault, as defined in K.S.A. 21-5412(b)(1), and amendments thereto, and aggravated assault of a law enforcement officer, as defined in K.S.A. 21-5412(d)(1), and amendments thereto; (G) aggravated battery, as defined in K.S.A. 21-5413(b)(1)(A) or (b)(1)(B), and amendments thereto, and aggravated battery against a law enforcement officer, as defined in K.S.A. 21-5413(d)(1) or (d)(2), and amendments thereto; (H) mistreatment of a dependent adult or mistreatment of an elder person, as defined in K.S.A. 21-5417(a)(1), and amendments thereto; (I) rape, as defined in K.S.A. 21-5503, and amendments thereto; (J) aggravated criminal sodomy, as defined in K.S.A. 21-5504(b), and amendments thereto; (K) abuse of a child, as defined in K.S.A. 21-5602(a)(1) or (a)(3), and amendments thereto; (L) any felony offense described in K.S.A. 21-5703 or 21-5705, and amendments thereto; (M) treason, as defined in K.S.A. 21-5901, and amendments thereto; SENATE Substitute for HOUSE BILL No. 2436—page 9 (N) criminal discharge of a firearm, as defined in K.S.A. 21- 6308(a)(1), and amendments thereto; (O) fleeing or attempting to elude a police officer, as defined in K.S.A. 8-1568(b), and amendments thereto; (P) any felony that includes the domestic violence designation pursuant to K.S.A. 22-4616, and amendments thereto; or (Q) any attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-5301, 21-5302 and 21-5303, and amendments thereto, of any felony offense defined in this subsection. (aa) (1) The sentence for a violation of K.S.A. 21-6308(a)(1)(A) or (a)(1)(B), and amendments thereto, if the trier of fact makes a finding beyond a reasonable doubt that the offender discharged a firearm and that the offender knew or reasonably should have known that: (A) A person was present in the dwelling, building, structure or motor vehicle at which the offender discharged a firearm, shall be presumptive imprisonment and, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 60 months of imprisonment; and (B) a person less than 14 years of age was present in the dwelling, building, structure or motor vehicle at which the offender discharged a firearm, shall be presumptive imprisonment and, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 120 months of imprisonment. (2) The sentence imposed pursuant to paragraph (1) shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal. (bb) (1) If the trier of fact makes a finding beyond a reasonable doubt that an offender committed any act described in K.S.A. 21-5408, 21-5409, 21-5411, 21-5412, 21-5413, 21-5414, 21-5415, 21-5426, 21- 5427, 21-5428, 21-5429, 21-5503, 21-5504, 21-5505, 21-5506, 21- 5507, 21-5508, 21-5509, 21-5510, 21-5515, 21-5601, 21-5602, 21- 5604 or 21-5605, and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit any such act with knowledge that a woman is pregnant and with the intent that such act will compel such woman to obtain an abortion when such woman has expressed her desire to not obtain an abortion, the sentence for such offense shall be: (A) If such offense is classified in severity level 2 through 10, one severity level above the appropriate level for such offense; and (B) (i) if such offense is classified in severity level 1, except as otherwise provided in clause (ii), imprisonment for life, and such offender shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, such offender shall not be eligible for parole prior to serving 25 years' imprisonment, and such 25 years' imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted. (ii) The provisions of clause (i) requiring the court to impose a mandatory minimum term of imprisonment of 25 years shall not apply if the court finds the offender, because of the offender's criminal history classification, is subject to presumptive imprisonment and the sentencing range exceeds 300 months. In such case, the offender is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range. (2) The sentence imposed pursuant to paragraph (1) shall not be considered a departure and shall not be subject to appeal. SENATE Substitute for HOUSE BILL No. 2436—page 10 Sec. 3. K.S.A. 21-6804 is hereby repealed. Sec. 4. This act shall take effect and be in force from and after its publication in the statute book. I hereby certify that the above BILL originated in the House, and passed that body HOUSE concurred in SENATE amendments __________________________________________________________________ Speaker of the House. Chief Clerk of the House. Passed the SENATE as amended President of the Senate. Secretary of the Senate. APPROVED ______________________________________________________________________________ Governor.