Monthly Archives: January 2013

Appeals court chief: keep “merit system” for selecting judges


TOPEKA – The chief judge of the Kansas Court of Appeals asked lawmakers Thursday to turn aside a request by the governor to change the way judges are selected for the Supreme and appellate courts.

Chief Judge Thomas Malone told the Senate Judiciary Committee that the current method of selecting judges is open and transparent and finds better judges than the alternatives that have been proposed.

Malone made his remarks on the second day of hearings before both the Senate and House judiciary committees, who are acting on a request by Gov. Sam Brownback and others to change the way Kansas selects its top judges.

At present, the judges are selected by what is called the “merit system.” A panel of nine people — five lawyers elected through the Kansas Bar and four non-lawyers appointed by the governor – select three finalists. The governor then appoints a judge from among those finalists.

The Bar Association offered Wednesday to give up its majority on the commission if lawmakers think lawyers have too much influence.

In his State of the State speech Tuesday, Brownback called on the Legislature to change the system to either direct election by voters or the “federal model,” in which the governor would select and appoint the judges with the consent of the Senate.

Thursday was set aside for supporters of the current system to make their case to the legislative committees. Proponents of changing the system testified Wednesday.

The battle over judicial selection is largely fallout from the unending controversy over school finance.

Brownback and conservative lawmakers have bristled at court orders to increase money for schools to meet the constitutional mandate that the Legislature provide “suitable” education funding.

A companion proposal, also backed by Brownback, would strip the courts of the authority to determine what “suitable” funding is and place the decision entirely with the Legislature.

Malone said the Court of Appeals has been noncontroversial and hardworking.

In 2012, the court handled more than 1,800 cases and issued 1,286 written opinions, he said.

“Few of our decisions garnered any mention in the press or stirred up any controversy,” he said.

Although Supreme Court and appellate judges are selected the same way, the Court of Appeals could see its judge-selection process changed first.

The selection process for Supreme Court justices is written into the state Constitution and can’t be changed without a two-thirds vote in the House and Senate, followed by a vote of the electorate.

The Legislature can change the selection process for appeals judges with a simple majority in both houses.

Supporters of the current system concede that conservative Republicans probably have the votes to change the selection process for the Appeals Court, but changing the selection of Supreme Court justices is far less certain. There are probably enough votes in the Senate to put an amendment to voters, but the forces for change in the House may have trouble getting the two-thirds majority they need there.

Malone said whatever the lawmakers decide to do, they should continue to have the same system for selecting Supreme Court and Court of Appeals judges.

“The Kansas Court of Appeals is not a pilot project for the Legislature to test out the federal model or any other method of judicial selection,” he said.

And if they want to change the system for either or both courts, they should do it through a constitutional amendment, he said.

The current system for picking the Supreme Court was approved by about 60 percent of Kansas voters in 1958.

The vote was spurred by public outrage after a lame-duck governor who had been voted out of office engineered his own appointment to the Supreme Court, by resigning before the end of his gubernatorial term and having his former lieutenant governor appoint him.

“Our current merit selection process reflects the people’s will and the system should only be changed by a public vote,” Malone said.

Among the other speakers at the hearing was Jack Focht, a 79-year-old lawyer from Wichita.

Looking up at the portraits of Supreme Court justices that line the chamber where the Judiciary Committee meets, he said he remembered many of the jurists from his more than 50 years of practicing law.

“Some were good and some were bad,” he said. “The best ones were the ones picked under the merit selection system.”

Bar Association offers to give up lawyers’ majority in choosing Supreme and appeals court judges

Kris Kobach testifies at hearing on judicial selection.

A day after Gov. Sam Brownback called on the Legislature to change the way Kansas selects Supreme Court and appellate judges, the president of the state’s association of lawyers offered to give up its majority on the state Judicial Nominating Commission.

The president of the Kansas Bar Association, Lee Smithyman of Overland Park, told legislators if they think lawyers have too much influence on picking judges, they should keep the system and reduce the number of lawyers in it.

“The Kansas Bar Association is very comfortable with a minority of attorneys on the (nominating) panel,” Smithyman said.

Both the House and Senate judiciary committees held hearings Wednesday on whether to change the selection process to direct election, where voters choose the top judges; or the “federal model” in which the governor appoints judges with the consent of the Senate.

In the current system, a nine-member commission — five lawyers elected by the Bar and four non-lawyers appointed by the governor — reviews applications and nominates three candidates. The governor must make a final selection from among the three nominees.

He proposed what the Bar Association calls the four-five-six plan, in which the Bar would select four members, the governor five, including a nonvoting chairman, and House and Senate leaders would choose six members.

“We lawyers think the present system is excellent,” he added. “We think we need to retain all the virtues that the merit system has given us.”

Brownback criticized the system in his State of the State speech Tuesday night, saying it “fails the democratic test,” and asked lawmakers to change it. He said he’d be fine with either direct election or the federal model.

Smithyman was the only proponent of the current system to testify to the House Judiciary Committee on a day set aside mostly for its opponents, including Secretary of State Kris Kobach. Kobach said he was testifying not in his official capacity, but as a lawyer and former law professor.

He said not only is the current system undemocratic, it doesn’t even pick the best judges.

“I would submit to you that if you look at the quality of the Kansas judiciary, Court of Appeals and Supreme Court, and compare it to similarly sized states like Maine, that has the federal model, just look at the resumes, look at the qualifications, I would say most people would say Kansas probably does not do as well,” Kobach said.

Kobach said the same holds true of Kansas’ federal judges, who were drawn from the same talent pool as the state judges but underwent a “crucible of scrutiny” under the federal model before receiving a presidential appointment. “I think most people would agree that the federal list (of judges) is more impressive,” Kobach said.

University of Kansas law professor Stephen Ware told the committee that he sees three major flaws in the current system.

“The current system is undemocratic, the second problem is it is extreme and the third problem is it’s secretive,” Ware said. “You don’t need to trade off judicial quality against democratic legitimacy.”

Sedgwick County District Judge Eric Yost acknowledged to the lawmakers that elections are “a lot of work, a lot of time, a lot of money.”

However, he added “The thing is democracy is a messy thing… but these appellate judges have enormous power over all of us.”

Judge Anthony Powell, recently elevated from the Sedgwick County district bench to the Court of Appeals, said it was “somewhat of an uncomfortable position” to testify in favor of changing the selection process, because his new colleagues generally favor the current system.

But, he said the question is simple: “Do free people have the right of self-government or not.”

Tax crusader Norquist blasts immigration crackdowns; Kansas’ Kobach says he should stick to taxes

TOPEKA — Grover Norquist, a hero among anti-tax Republicans, told state legislators Wednesday that it’s OK to be conservative and be against cracking down on illegal immigrants.


Norquist, president of Americans for Tax Reform, argued that immigration is good for the country and took a swipe at Arizona’s controversial anti-immigrant law, which requires local law enforcement officers to check the immigration status of people they suspect are in the United States illegally.

“They (Arizona) said we’re not for asking everybody for their papers like some World War II movie, we’re interested in only asking for papers of people who violated the law,” Norquist said. “So they passed a law making it illegal to stand on the side of the road looking for work. … (Proponents say) ‘We’re not criminalizing workers or immigrants or anything like that.’ Yes they were. That’s exactly what they were doing.”

By extension, it was also a swipe at the Arizona measure’s principle author, Kansas Secretary of State Kris Kobach, who has worked with cities and states around the country to crack down on illegal immigrants.

Asked about Kobach himself, Norquist said “people can get attention with outrageous positions … but it’s not constructive for the country, it’s not constructive for the modern Republican Party.”


Contacted later, Kobach said Norquist doesn’t know what he’s talking about.

“Grover Norquist has excellent expertise in tax policy,” Kobach said. “He has no legal expertise in immigration law.” The Arizona law, he said, “didn’t criminalize anything that wasn’t already criminal under federal law.”

And he accused Norquist of “hypocrisy” on the immigration issue.

“The irony here is that Grover Norquist claims to deeply care about fiscal responsibility, but the amnesty he favors would cost taxpayers $2.6 trillion over 10 years … It’s unbelievable that he can hold those two opposing views at the same time.”

The cost, he said, would come from newly legalized immigrants being eligible for social services they do not now qualify for. “And that’s before Obamacare,” Kobach added.

Norquist spoke at a breakfast for legislators sponsored by the Kansas Business Coalition for Immigration Reform, a business group that is seeking a more orderly process for immigrants to enter and work in the United States.

The coalition includes the Kansas, Wichita, Topeka, Kansas City and Overland Park chambers of commerce, along with heavy hitters in the agricultural and construction sectors including the state’s Farm Bureau, Livestock Association, Contractors Association and Building Industry Association.

Norquist argued that immigration crackdowns are bad policy and bad politics for Republicans.

Economically, the ability to incorporate immigrants into the workforce is a major advantage the United States has over competitors such as China and Japan, he said.

“We’re way ahead of other countries in the ability to have immigrants come to the United States and become Americans very rapidly and contribute to the growth of our economy, both in big cities and in rural areas,” Norquist said. “It’s one of the strengths we have as a nation and I think it’s very important for us to keep an eye on that, because if you sort of get some stuff right, if you have the right tax policy but you’ve got the wrong immigration policy, you can do great damage to a state’s economy or the national economy.”

Politically, the issue hurts Republicans because even though polls might show majorities favoring crackdowns on illegal immigration, most don’t consider it important enough to influence their vote, Norquist said.

Those who do consider immigration a voting issue, especially Hispanic voters, are primarily on the other side, he said.

Hard-line immigration policies drive those voters away from Republicans, even though many generally agree with GOP stances on issues such as abortion and traditional values.

“So we’ll have a conversation saying: ‘Look, I want to talk to you about all the issues we agree on. Now, while we talk, you won’t mind if Igor here goes upstairs and grabs your aunt and drags her down the stairs and throws her across the border,” Norquist said.

Norquist likened calls for increased enforcement of current laws to the 55 mph national highway speed limit of the 1970s, which was routinely flouted by motorists.

“What we did do eventually is change the speed limit so that it matched reality,” We need to have an immigration law and enforcement that matches reality.”

Kobach said if his views are as outrageous as Norquist said, he’s in good company because at least 60 percent of the American people agree with him.

And Kobach said he doesn’t know how Norquist can gauge the intensity of people’s feelings on the issue.

“I think he’s making it up,” Kobach said. “He has to come up with a theory because massive numbers of Americans disagree with him.”

While several anti-illegal immigration bills are expected to be introduced this legislative session, they probably won’t get a lot of attention, said Rep. Steve Brunk, R-Wichita and one numerous lawmakers who attended Norquist’s speech.

Brunk said a fight over immigration isn’t worth it because it could divide Republicans and influence other high-priority GOP issues such as tax cuts, reducing spending and changing the way the state selects appellate judges.

“Anything new on immigration that could potentially split that up is going on the back burner,” Brunk said.

Record lottery ticket sales means $81 million jackpot for state government

TOPEKA – Record sales of lottery tickets led to a record profit for state government last year, the director of the Kansas Lottery told lawmakers Tuesday.

“As a result of the record sales year, the lottery was able to transfer to the state’s financial coffers approximately $72 million, a record amount,” acting Lottery Director Dennis Taylor said in a report to the Senate Federal and State Affairs Committee.

In addition, lottery winners paid about $9 million in income taxes on their winnings, for a total profit to the state of about $81 million.

The amounts Taylor reported are for traditional lottery sales only, and do not include income from the casino operations that the lottery technically owns and operates.

By law, most lottery income goes to fund economic development projects, with smaller amounts earmarked for the state general fund and prison construction and maintenance. A tiny fraction goes to a fund to fight gambling addiction.

Bigger jackpots in the Powerball and Mega Millions games fueled lottery sales in the 2012 fiscal year, Taylor said.

That included a world record jackpot of $656 million that was shared by three winners – including one in Kansas — in the multi-state Mega Millions game.

Lottery ticket sales in fiscal 2012 totaled slightly more than $246 million. The state paid out $139 million in prizes and about $14.4 million in commissions to retailers.

Taylor reported to the committee on his third day on the job, after moving to the lottery department from the state Department of Administration.

The lottery also worked last year to improve security, including implementing a process called “keyless validation,” Taylor said.

That allows players to validate their own tickets by running them under a bar-code reader before they turn them in for payment.

That guards against the possibility that unscrupulous clerks who work for lottery retailers could tell customers they had lost, and then pocket the winnings themselves.

In addition, the lottery is using undercover investigators to root out another way of cheating at the sales counter called “micro-scratching,” Taylor said.

“Micro-scratching is the term used when a clerk removes a tiny amount of latex from the play area of a scratch ticket in an effort to determine if the ticket has a prize,” Taylor said in his report. “If the ticket has a prize, the clerk purchases and cashes the ticket. If there is no prize, the ticket is sold to an unsuspecting customer.”

Brownback makes pitch for austerity to freshmen lawmakers

Gov. Sam Brownback asks new lawmakers to join him in push for smaller state government.

TOPEKA – Previewing his priorities for the legislative session, Gov. Sam Brownback asked freshman lawmakers Tuesday to stand with him in cutting the size of government.

Support from the freshman class will be crucial for Brownback as he moves to implement his vision of a more austere state that costs less, taxes less and does less.

More than a third of this year’s senators and representatives will be new to their jobs, following court-ordered redistricting last year and a heavily funded, largely successful effort by business interests to replace moderate Republicans with conservatives.

In the House, 49 of 125 representatives are freshmen; in the Senate, it’s 16 of 40.

Brownback said that in an era of global competitiveness, government must follow ongoing business trends toward cutting spending wherever possible.

“You’re seeing things in the United States that have to be globally competitive have really leaned down their operations and focused on what it is we’re about,” Brownback told the new lawmakers. “To me one of the missing things that government has not done, for the last 50 years probably, is look at its own efficiencies, or inefficiencies if you want to look at it that way.”

Now, he said, the austerity philosophy is starting to take hold in government, which has traditionally run on a “cost-plus” basis where the government decided what it needed to do and then levied the taxes to do it.

“What you’re seeing now taking place, and you’re right at the front end of it, is that government at all levels, local, state and soon to be federal, saying oh, wait a minute, that era is over,” Brownback said.

Like businesses, states will have to compete with each other and other countries to attract and keep businesses and people, he said.

“We’ve got to produce the best educational system, the best highways, the best public-safety structure we possibly can,” Brownback said. “And we’ve got to bring our price point down so that we can have a tax structure that attracts people to the state of Kansas, ‘cause they can go other places, and do, and we’ve seen that.”

One of Wichita’s new legislators, Republican Mark Kahrs, said he is looking forward to trying to meet the governors challenge as a member of the Appropriations Committee, a key panel in the crafting of the state budget.

Kahrs said he sees this as a “unique time to serve in the legislature” because of the large number of new members and while “facing deep financial crisis in our country and our state.”

“Where there is waste, we need to eliminate it and where we can consolidate, we need to consolidate,” Kahrs said.

Voting rights takes center stage at legislative forum

The state’s voter identification law came under fire Tuesday night at a legislative forum where ordinary citizens got a chance to tell lawmakers what they want from the session that begins next week.

The open-mike session drew a crowd of about 100, about 40 of whom chose to speak on a variety of issues ranging from abortion to fluoridated water to police brutality.

But the 25 lawmakers who attended the forum heard the most about dissatisfaction with the voting law they passed in 2011 at the request of Secretary of State Kris Kobach.

Kobach contends that photo ID and proof of citizenship are necessary to prevent voter fraud by immigrants legal and illegal.

But resident Bryan Mann told the lawmakers that the real purpose of the voter ID law is to suppress Democratic-leaning voter groups – especially minorities and the elderly – to cement Republican domination of state government.

He drew loud cheers after he called the law “nothing more than partisan gamesmanship and a watered down Jim Crow law,” referring to the pre-civil-rights statutes used in southern states to deny voting privileges to black people.

In last year’s elections, for the first time, all Kansas voters were required to show photo ID when they voted at the polls.

This year, a new provision takes effect requiring that new voting registrants provide proof of citizenship such as a birth certificate or passport.

Opponents say that part of the law causes confusion for voters and essentially makes it impossible for groups to hold voter registration drives.

“Would you turn your personal information, such as your Social Security number or a copy of your birth certificate, over to a complete stranger?” said Esau Freeman. “This is what Kris Kobach has tricked you into passing. It’s a law that won’t allow the Republican Party or the Democratic Party or anybody to go and register first-time voters without being able to put that documentation up front.”

Kobach has previously recommended that groups that want to register voters could help fill out the registration forms and let the prospective voters send them in themselves after they gather the needed documents.

Lawmakers did not speak to issues raised by the public during the meeting. But later, several acknowledged the pushback against the voter ID law and said it may need a second look when they get to Topeka.

“I think a lot of people have serious concerns about making it harder to vote,” said Rep. Jim Ward, D-Wichita, who opposed the law when it passed. “Whether our extremely conservative friends will hear that is the question.”

Two local Wichita Republican representatives who voted for the law, Les Osterman and Dennis Hedke, said they think some amendments might be in order if people really are finding it very difficult to obtain the documents they need to register to vote.

“I will be looking at it to see what effect it will have on the citizens,” Osterman said.

While he paid $14 and it took two weeks to acquire his birth certificate from Wyoming, Osterman said other people might have bigger problems getting the documents from other states.

“I’m listening to what they (the law’s opponents) have to say and taking into consideration what they have to say,” he said.

Hedke added that “with all the comments, we need to study it more carefully. There may be some justification for amendments to the law.”

However, he said he won’t advocate to change it unless someone supplies hard evidence that it’s putting an unreasonable burden on voters.

“I think suggesting we’re causing many, many people not to have the ability to vote is an incorrect assessment of the law,” he said.

Kansans for Life launches petition drive against abortion clinic plan

Rep. Les Osterman, R-Wichita, signs a petition asking local government agencies to rezone the site of the former clinic of abortion provider George Tiller, to prevent a women’s group from opening a new clinic to provide abortion services there.

The state’s most powerful anti-abortion group will be petitioning the Wichita City Council and the Metropolitan Area Planning Commission in an effort to prevent a women’s group from opening a clinic to provide abortions at the site of the former medical practice of murdered abortion provider George Tiller.

Kansans for Life will ask the commission and council to rezone the property in an effort to thwart the reopening of the clinic by a group called the Trust Women (and Change the World) Foundation.

The foundation is planning to offer abortion services as part of a women’s clinic at 5107 E. Kellogg.

The site has been idle since June 2009, shortly after Tiller was shot to death at his church by anti-abortion activist Scott Roeder. Roeder, a resident of the Kansas City area, was convicted of murder and is serving a life sentence.

The effort to reopen the clinic is being led by Julie Burkhart, a former Tiller employee who heads the women’s foundation. The group purchased the clinic building from Tiller’s widow in September and has indicated through its web site that contractors are remodeling the interior.

In a written statement issued Tuesday night, Burkhart said: “This effort is yet another attempt to limit access to reproductive health care for the women of Wichita and Kansas.  Regardless of their actions, we will continue to bring quality and comprehensive obstetrics and gynecological services to Wichita.”

Troy Newman, who heads the Wichita-based anti-abortion group Operation Rescue, has registered the name Trust Women Foundation Inc. with the Secretary of State’s office. Newman, who strongly opposes efforts to reopen the clinic, declined comment when asked why he had registered essentially the same name as the group that is planning to do that.

On Tuesday, Kansans for Life held a news conference and rally on the steps of the Sedgwick County Courthouse to publicize its petition drive.

In attendance were about 60 abortion opponents and several current and future state legislators who signed the petition, including Sen.-elect Michael O’Donnell, R-Wichita.

“Kansans are going to be protected from conception until natural death and that’s our No. 1 goal,” O’Donnell said.

“As a preacher of the Gospel of Jesus Christ, the Bible tells us not to abort children, we’re supposed to raise them and encourage them,” added Rep. Les Osterman, R-Wichita. “So we need to stop the killing of innocent babies … There’s other ways that women can do and things they can do rather than have that happen.”

Resident Anna Myers said her grandparents came to Wichita as survivors of the Nazi Holocaust and that she considers herself a “survivor of the American Holocaust” of abortion.

She said the presence of the Tiller clinic had brought embarrassment instead of pride to the city of Wichita.

“We’re glad that era has ended,” she said. “No more violence against people inside or outside the womb; no more babies being butchered, no more women being injured and no more abortionists being killed.”

David Gittrich, Development Director for Kansans for Life, said the presence of the Tiller clinic had caused disruption for the neighborhood and that rezoning the new clinic out would protect the quiet atmosphere that has developed since the clinic closed.

After the news conference, he acknowledged that much of the disturbance had been a result of the actions of anti-abortion groups, including his.

But he said it was justifiable and inevitable that reopening the clinic would bring back the protests.

“There’s been people on both sides who have gotten out of line,” he said. “The main point is the abortion industry attracts a huge crowd of people opposed to it. It would be the same thing as if people were opposed to slavery and showed up at a slave market to say they were opposed to it.”

He said Kansans for Life will continue to protest if the clinic opens.

“We like families and children, not places where they go to be killed,” Gittrich said.

Gittrich said the group will collect signatures through Jan. 22, the day of the 40th anniversary of the Roe v. Wade decision, the U.S. Supreme Court ruling that established women’s right to an abortion.

The signatures will be presented to the Planning Commission on Jan. 24 and to the City Council on Jan. 29, Gittrich said.