Category Archives: Kansas courts

Court lacking diversity

justiceladyThe glaring lack of ethnic and gender diversity on the Sedgwick County District Court bench came up during Tuesday’s forum for judicial candidates sponsored by the Wichita Women Attorneys Association and League of Women Voters Wichita-Metro. Judge Gregory Waller, a Democrat who has two Republican challengers in the Aug. 5 primary, noted that when he was appointed by Gov. Joan Finney in 1993, he became the third African-American on the Sedgwick County bench (along with the late Robert Watson and Jennifer Jones, now administrative judge in Wichita Municipal Court). Now, Waller said, he is the only African-American judge in the district and one of only three in the state (Shawnee and Wyandotte counties have one each). One of Waller’s challengers, Linda Kirby, mentioned that there are no elected women among the 28 judges on the Sedgwick County bench, though Judge Faith Maughan was appointed to the bench last year by Gov. Sam Brownback. One other woman will be on the Aug. 5 primary ballot: Diane Sherwood, who is vying with Mike Hoelscher to succeed retiring Judge Mark Vining.

Nice to know names of Supreme Court applicants

stegall,calebTwo thoughts about the 14 applicants who’d like to replace Justice Nancy Moritz on the Kansas Supreme Court: There is a lot of ambition on the Kansas Court of Appeals; four of its members are seeking the promotion, including Chief Judge Thomas Malone and Brownback-appointed Judges Tony Powell and Caleb Stegall (the last, in photo, on the court a mere six months). And it’s great to know who applied – standard practice with Supreme Court openings, but also a transparency that may be endangered. Gov. Sam Brownback and some lawmakers have sought to change the state constitution to cut out the nominating commission and give the governor free rein to fill openings (subject to Senate confirmation), as he now has for the Court of Appeals. Last year, Brownback declined to release the names of the applicants for a new Court of Appeals spot, then picked Stegall, his former counsel. That was the first time in 32 years that Kansans hadn’t known who applied for the court and who made it to the top three.

DCF also deserves rebuke in Henderson case

gavelSedgwick County District Court Judge Timothy Henderson isn’t the only one who deserves a rebuke. So does the Kansas Department for Children and Families. In addition to recommending that Henderson be censured for harassing women attorneys, the state’s Commission on Judicial Qualifications concluded that Henderson wrongly sent an e-mail informing officials with DCF that Wichita attorney Martin Bauer used to handle birth adoptions associated with Wichita abortion doctor George Tiller and had supported “gay adoptions.” The e-mail was sent to Jeff Kahrs, chief of staff at DCF, and Diane Bidwell, then head of DCF’s Wichita office. Bauer had handled some adult guardianship cases for DCF, but after receiving the e-mail, DCF removed Bauer and his law firm, Martin Pringle, from its appointment list. The commission ruled that Henderson “inappropriately mixed his personal views on sociopolitical issues” with his official duties. So did DCF.

Judicial panel’s satisfaction with law was a relief

gavelSo there will be no constitutional crisis over state funding of K-12 schools, at least for now. That’s a relief. This week three judges signed off on the new state law meant to remedy inequities in school funding by July 1, which means the Legislature’s $129 million response to the Kansas Supreme Court’s Gannon decision will stand and school districts will get their scheduled state aid. There was plenty to dislike about the bill and its passage, without sufficient scrutiny of its unwarranted policy provisions. But some districts will see benefits, as will some property tax payers. The big test of the Gannon lawsuit lies ahead, though, as the three-judge panel takes another look at whether state funding is unconstitutionally low overall.

Personal relationships can affect how judges decide

justiceladyA recent study examined how personal relationships affect judicial decisions by focusing on something judges can’t control: the gender of their children. Researchers from Harvard University and the University of Rochester examined nearly 2,700 votes on cases involving discrimination against women or women’s rights made by about 240 U.S. Court of Appeals judges. They found that judges who have a least one daughter “consistently vote in a more feminist fashion on gender issues than judges who have only sons.” This was particularly the case among male Republican judges.

Time likely running out on Kansas’ gay-marriage ban

gayweddingcakeWhat is most striking about all the recent court decisions striking down state bans on gay marriage is the diversity of judges and states. Since last June, 13 judges in red and blue states have either overturned bans on gay marriage or ordered states to recognize gay marriages from other states, the Sunday Eagle reported. Opponents of gay marriage have tried to blame these decisions on “activist judges.” But as Thomas Witt, executive director of Equality Kansas, noted, “judges of all backgrounds and political affiliations are striking down these state-level bans.” It’s likely only a matter of time before Kansas’ ban is struck down, too.

Vote on Moritz gives Brownback a court seat to fill

moritzThree long years after the seat opened, a Kansan has been confirmed by the U.S. Senate to the Denver-based 10th U.S. Circuit Court of Appeals – Kansas Supreme Court Justice Nancy Moritz, with a vote of 90-3 on Monday. To their credit, Kansas Sens. Pat Roberts and Jerry Moran supported President Obama’s nomination of Moritz, with Moran calling her “well-prepared” and saying: “I am confident Nancy’s service on the 10th Circuit will be guided by the values we hold in Kansas, including empathy for others and respect for the rule of law.” Roberts and Moran inexplicably blocked Obama’s 2011 nomination to the seat of former Kansas Attorney General Steve Six, who also was well-qualified. But Moritz will be a great addition to the court; a Beloit native and Washburn University Law School graduate, she had experience as a federal prosecutor and coordinator of appellate cases for the U.S. Attorney’s Office in Kansas before Gov. Kathleen Sebelius appointed her to the Kansas Court of Appeals in 2004 and Gov. Mark Parkinson named her to the Supreme Court in 2011. Of course, Moritz’s confirmation also has a key benefit for Kansas Republicans – providing Gov. Sam Brownback with his first opportunity to name a member of the state Supreme Court.

Nuss will speak out when court’s authority is undermined

nussSome state lawmakers don’t like Kansas Supreme Court Chief Justice Lawton Nuss criticizing a bill, which Gov. Sam Brownback signed into law, linking operational funding for the courts to reforms aimed at weakening the Supreme Court’s authority. “He needs to keep his comments and political actions within the walls of the judiciary,” Sen. Julia Lynn, R-Olathe, told the Kansas City Star. But Nuss is justified in challenging the reforms, particularly when they appear to violate the Kansas Constitution, which gives the Supreme Court “general administrative authority over all courts in this state.” Nuss said: “When I see that authority and the respect for this constitutional institution eroded or being undermined, yes, I speak out.”

In Olathe and elsewhere, more taxing authority won’t offset cuts

schoolmoneyKansas City Star columnist Steve Rose praised the school-finance bill because “Johnson County schools finally got more local control,” predicting the Shawnee Mission, Olathe and Blue Valley districts will take advantage of how the legislation enables them to raise local property taxes. But the Star also reported that extra local taxing authority won’t offset years of cuts. Shawnee Mission gains $3.3 million from the bill but had to cut its spending by $28 million from 2009 to 2012. Blue Valley, where cuts have totaled $11 million, could see $3 million more because of the bill, while Olathe’s $6 million gain compares with $25 million in recent cuts. Olathe superintendent Marlin Berry told the Star the greater taxing authority is “a very small step” toward what’s needed for classrooms and staff.

USD 259 might not get much help from funding fix

schoolmoneyUnless the Legislature changes the rules somehow, many school districts, including Wichita, won’t get much budget help even if the state complies with the Kansas Supreme Court order to equalize school funding. That’s because most of the increased state funding would go to supplement local option budgets. And because the LOB total is capped, all that would change is how this total is divided between the state and districts. So, for example, if the state fully funded its share of Wichita’s LOB next fiscal year, it would pay an additional $11.9 million, according to Kansas State Department of Education estimates. But because Wichita’s LOB is at the cap and can’t increase, Wichita would have to reduce its local property taxes by $11.9 million to offset the state money. That’s good for homeowners but doesn’t help USD 259 pay its bills. Wichita would received $3.5 million in capital outlay aid if the state equalized that funding, and it has the potential to increase that budget. But that is a relatively small funding increase for a district Wichita’s size, and the money could be used only on capital projects, not for teacher salaries.

Was court’s school ruling good news for other states?

schoolhaAn Investor’s Business Daily editorial greeted the Kansas Supreme Court’s recent ruling on school finance with a “Hallelujah!” because it said the touchstone for determining adequacy of funding wasn’t total spending but when students “meet or exceed the standards set out” under state law. “What a concept: School performance shouldn’t be based on the inputs – i.e., money – but the actual academic results,” the editorial argued. “This is, of course, how most every other industry measures progress. In private industry the goal is to do more with less. But in education we have been operating under the opposite mind-set: Do less with more money. Maybe that’s why schools are failing. They’re looking at the wrong metrics. Hopefully the courts in other states will take the logic of this latest Kansas decision to heart.”

KPI advises Legislature to act swiftly on school equity

schoolc4The Kansas Policy Institute, a free-market think tank, is advising state lawmakers to pay what’s required to equalize state education funding, per the Kansas Supreme Court’s recent ruling. “The equity issues should be swiftly and cleanly resolved,” KPI president Dave Trabert wrote in a commentary. “We encourage legislators to avoid temptation to ‘tinker’ with the current formula to find the equity money, even though the Supreme Court says that that is one option available.” Whether the state is adequately funding public education is still unresolved, as the Supreme Court ordered a three-judge panel to evaluate funding based on educational outcomes. On that issue, Trabert is urging the Legislature to take its time and determine adequate funding “in a thoughtful, deliberative process.”

Credit-rating agency raises concerns about state finances

cashMoody’s Investors Service is raising concerns about Kansas’ ability to pay its debts. The credit-rating agency considers the Kansas Supreme Court’s decision in the school-finance case a “credit negative” because “the mandated increase will pressure state finances that are already stressed by revenue losses from income tax cuts.” A spokeswoman for Gov. Sam Brownback downplayed the Moody’s report, noting that Kansas still has a strong bond rating. But John Robb, a Newton attorney who represents the plaintiffs in the school-funding case, said there is reason to worry about state finances. “The grand experiment better ramp up in the next three years, or we’re going to have a train wreck,” he said. “Moody’s appears to recognize that.”

Legislature could learn from Kansas Medical Society

statehouse“The Kansas Legislature might just learn a lesson from the Kansas Medical Society,” wrote Statehouse observer Martin Hawver. He noted how the society spearheaded a bill that would raise the current $250,000 cap on noneconomic damages in medical malpractice cases. The change is in response to a Kansas Supreme Court decision that the cap was constitutional but very low. “The medical society knows that at some time another medical malpractice case is going to go to the Supreme Court, and it can only be helpful for the court to know that the KMS has listened to the court,” Hawver said. In contrast, the Legislature has thumbed its nose at court rulings on school funding. “Maybe the Legislature could learn something from doctors in the way of social skills in dealing with the court,” Hawver wrote.

State must increase school funding

school-fundingThe state must significantly increase school funding to meet its constitutional obligations, but exactly how much and when is still uncertain. The Kansas Supreme Court ruled today that a three-judge panel needed to look at more than just cost studies to determine the adequacy of funding. The timing of that is unclear. But the court did rule that funding is not equitable and gave the Legislature until July 1 to fix that. How will lawmakers and Gov. Sam Brownback respond?

Brace yourself: School-finance ruling coming Friday

schoolmoneyAt 9:30 a.m. Friday the Kansas Supreme Court will release its ruling in the school-finance case. A three-judge panel ruled last year that state funding for K-12 public schools was unconstitutionally low and needed to be increased by more than $400 million per year. If the Supreme Court agrees, how will lawmakers and Gov. Sam Brownback respond? Will they defy the court and trigger a constitutional crisis? Could that lead to school closings next fall?

Legislator claims Supreme Court selection is ‘predetermined’

justiceladyAt a recent legislative forum in Hays, Rep. Travis Couture-Lovelady, R-Palco, complained about “left-wing politics in the courts” and argued for changing the way Kansas Supreme Court justices are selected in favor of a “more open process” that would give lawmakers a role. As reported by the Hays Daily News, he also suggested that the current nominating commission, which assesses applicants and forwards three names for the governor to choose from, rigs the process. “What they often do, they have the person they want, and they’ll make the other two so unacceptable to the governor it’s really a predetermined selection,” Couture-Lovelady said. Wichita attorney Jay Fowler, who has represented the 4th Congressional District on the commission since 2009, told The Eagle editorial board in his experience “that is not anything the commission has ever done.” Fowler added: “It’s always been our intention and we make a diligent effort to send the best three people based on their qualifications and experience, and without regard to politics.”

Governor should release names of judicial applicants

shhhhAfter Gov. Sam Brownback nominated his chief counsel to the Kansas Court of Appeals last year, he refused to release the names of other people who had applied for the job. That was ironic, and irritating, because one argument that Brownback and GOP legislators had made for changing the appointment system was that they wanted more transparency. Under the old system, not only did a nominating commission release the names of those who applied, its interview process was open to the public. Senate Minority Leader Anthony Hensley, D-Topeka, wants to return some transparency to the process. He sponsored a bill that would require the governor to release the names of all applicants.

School-finance ruling could have national impact

schoolmoneyThe Kansas Supreme Court’s upcoming decision on a school-funding lawsuit, and the Legislature’s response to that ruling, could have a far-reaching effect, according to David Sciarra, executive director of the Education Law Center, and Wade Henderson, president of the Leadership Conference on Civil and Human Rights. “A court-stripping constitutional amendment, and defiance of a state Supreme Court order, would shred the very fabric of Kansas’ government and send shock waves through state capitals across the nation,” they wrote in a New York Times commentary headlined “What’s the Matter With Kansas’ Schools?” They also said: “It would allow elected branches to avoid any responsibility to adhere to the language and interpretation of their state constitutions by the courts. It would gravely undermine judicial independence and shut the courthouse door to vulnerable children who, as a last resort, seek legal redress to vindicate their fundamental right to an education.”

Moritz’s nomination going more smoothly than Six’s

moritzPresident Obama’s latest nomination of a Kansan to the 10th U.S. Circuit Court of Appeals is going smoothly so far – and thank goodness for that, given how abortion-related politics doomed his solid choice of former Kansas Attorney General Steve Six two years ago. Kansas Supreme Court Justice Nancy Moritz, chosen by Obama in August to fill a long-vacant seat on the Denver-based federal court, reportedly was well-received at last week’s Senate Judiciary Committee hearing and already has the stated support of Sen. Jerry Moran, R-Kan. The nomination of Moritz, a Beloit native and Washburn University law graduate, still must be approved by the committee and full Senate. Carl Tobias, a federal court watcher who is Williams Professor of Law at the University of Richmond (Va.), told the Topeka Capital-Journal: “I’m optimistic, cautiously, that she’ll be confirmed. Probably with very few ‘no’ votes.” For Kansas Republicans, the nomination has the plus of allowing Gov. Sam Brownback his first opportunity to name a member of the state Supreme Court.

Hensley’s conspiracy theory about Stegall is lame

Senate Minority Leader Anthony Hensley, D-Topeka, has sound reasons for objecting to the new method of selecting judges for the Kansas Court of Appeals, which threatens the quality, nonpartisanship and independence of the court. But Hensley is off base in seeing a conspiracy in the four-month delay in swearing in Caleb Stegall, whose nomination was confirmed by the Kansas Senate early this month. If Hensley were right about the timing being designed by Gov. Sam Brownback to spare Stegall a November 2014 retention vote, that would mean court officials including Chief Justice Lawton Nuss, as well as Brownback’s office, have lied about the delay being necessary for budgetary and remodeling reasons. Plus, 53 years of judicial-retention elections for members of Kansas’ appellate courts suggest Stegall need not worry about being thrown off the bench by voters, whenever his name first appears on the ballot.

Getting on a Kansas appellate court takes tenacity

Some of the champions of Caleb Stegall’s nomination to the Kansas Court of Appeals saw political bias in the fact that he was twice passed over by the judicial nominating commission for earlier court openings under the old selection system. But Associated Press’ John Hanna noted it’s common for applicants to those courts to apply multiple times. Appeals Judges Stephen Hill, Steve Leben and Kim Schroeder all were appointed after their 11th applications either for the Court of Appeals or the Supreme Court, Hanna wrote. And of the current members of the appellate courts, only Supreme Court Justice Carol Beier, formerly of Wichita, was appointed on her first try. That happened twice to Beier, who was named to the Court of Appeals in 2000 and the Supreme Court in 2003. Hanna also noted that when Stegall was interviewed by the nominating commission for the earlier vacancies, “the commission’s questions touched on the 41-year-old’s relative youth in a pool that included lawyers who’d been practicing twice as long.”

Stegall’s confirmation vote could have waited

So the Legislature’s special session didn’t further the Kansas Court of Appeals’ work after all. That’s disappointing. Playing its new role in judicial selection, the Kansas Senate was supposed to vote on whether to confirm Caleb Stegall’s nomination to the new 14th seat on the court when the new session begins in January. But the special session earlier this month meant the Senate was legally required to consider the nomination then. Then Kansans learned Wednesday that budgetary and remodeling issues will delay Stegall’s swearing-in until Jan. 3 anyway.

Here come the out-of-state interest groups

Kansas got a taste of a more politicized judicial system last week as an out-of-state conservative group bought a full-page ad in the Topeka Capital-Journal praising Gov. Sam Brownback and his appointment of Caleb Stegall to the Kansas Court of Appeals. The D.C.-based Judicial Crisis Network, a 501(c)(4) organization (which means it doesn’t have to disclose who funds it), said in the ad that because of Brownback’s leadership, “special interest lawyers no longer control appointments to the Kansas Court of Appeals.” Dennis Depew, president of the Kansas Bar Association, said that has never been the case. “I’m certainly not aware that any special interest in the legal profession at all controls anything to do with merit selection under the current method for picking (Kansas) Supreme Court justices and former method for picking Court of Appeals judges,” Depew told the Capital-Journal.

So they said

“Kansans should prepare to man the barricades, to defend our Kansas Constitution, and to not allow partisan politics to change the way we select fair, independent and qualified justices on the Kansas Supreme Court.” – former Kansas Attorney General Steve Six (in photo), in a commentary criticizing the new selection method for the Kansas Court of Appeals

“LBJ made Truman the first Medicare enrollee. Why can’t Obama be the first to sign up for #ObamaCare exchanges?” – U.S. Rep. Tim Huelskamp, R-Fowler, on Twitter

“I kind of feel like Michael Corleone (from ‘The Godfather’). I keep trying to get out, and they keep pulling me back in.” – Rep. Bob Grant, D-Frontenac, who is resigning Dec. 10, on last week’s special session