Category Archives: Kansas courts

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

Is Stegall a ‘crunchy con’?

Caleb Stegall, whose appointment to the Kansas Court of Appeals was confirmed this week by the Kansas Senate, is being described by some as a “crunchy con.” The term refers to conservatives who also care about environmental issues, such as conservation and sustainability. Stegall’s writings have reflected traditional socially conservative values, but he also has criticized urban sprawl and big-box stores and is concerned about preserving natural resources.

Kassebaum Baker worried about politicizing Kansas courts

“Our concern is not with any particular nominee, but with the process,” former U.S. Sen. Nancy Landon Kassebaum Baker (in photo) and retired 10th U.S. Circuit Court of Appeals Chief Judge Deanell Reece Tacha wrote about Kansas’ new judicial appointment system. That process began in the Kansas Senate Tuesday, as senators evaluated Caleb Stegall, Gov. Sam Brownback’s nominee to the Kansas Court of Appeals. Though Tacha wrote a letter endorsing Stegall, she and Kassebaum Baker fear that the new appointment process could politicize Kansas’ courts and undermine public trust. “We cannot let Kansas be the place where the judiciary is under any cloud of suspicion that the selection process is based on anything other than merit and that the judges are answerable to anything other than the law, including the Constitution,” they wrote.

No surprise that Brownback didn’t release court names

It was no surprise that Gov. Sam Brownback redacted the names of applicants for a position on the Kansas Court of Appeals when responding this week to an open-records request. Brownback has made clear that he won’t follow the long-standing practice of a bipartisan nominating commission – which previously vetted and recommended nominees – and release the names of applicants, despite claims that the new nominating process would increase transparency. The concern of the League of Women Voters of Kansas, which sought the records, is valid: How can the public evaluate whether Brownback’s nominee – his chief counsel, Caleb Stegall – is indeed the most-qualified candidate, as Brownback said, if they don’t know who else applied? Still, obtaining the records likely wouldn’t change anything. Brownback nominated who he wanted, and the Kansas Senate is expected to confirm that pick next week.

Writings, interviews add information about Stegall

Gov. Sam Brownback has released little information about Caleb Stegall, his nominee for the Kansas Court of Appeals. But the Topeka Capital-Journal examined some of the writings and interviews Stegall has done over the years. For example, in a 2005 interview with the website God Spy, Stegall described his work as editor of the New Pantagruel, an online magazine with a “radically new vision for humanity and the world.” He urged people to “read the classics and the church fathers instead of junk fiction and self-help crap. And, then, go about the hard work of learning the discipline of place. Get married. Have kids, lots of them. Don’t turn them over to others to raise.” Stegall also has criticized the controlling tendencies of liberals and conservatives. In a column he wrote for the Kansas Liberty website, Stegall said the political left was caught up in dreams of “an egalitarian utopia and of running everything by federal fiat,” while the political right was dreaming of “a Christian nation with social control and corporate giveaways.”

Brownback once criticized judicial nomination stealth

When President George W. Bush nominated his legal counsel, Harriet Miers, to the U.S. Supreme Court, then-Sen. Kansas Sam Brownback complained about Miers’ lack of a judicial record and the White House’s unwillingness to release information about her work. “Why do you need stealth?” Brownback asked at the time. That makes Brownback’s nomination last week of his own legal counsel, Caleb Stegall (in photo), to the Kansas Court of Appeals a strange “deja vu role reversal,” wrote Tim Carpenter for the Topeka Capital-Journal. Stegall also doesn’t have a judicial record, and Brownback isn’t providing information about Stegall’s work in the executive branch (or releasing the names of other applicants for the court opening). “The governor is setting precedent in Kansas by placing a lid on unwelcomed requests for executive branch information capable of helping the public clarify a nominee’s record,” Carpenter wrote, adding that “this new mantra of stealth, in Kansas judicial circles, could be called the Stegall Rule.”

Six’s endorsement of Stegall stands out

Of all the weighty names mentioned as having endorsed Caleb Stegall, Gov. Sam Brownback’s chief counsel, for the new 14th seat on the Kansas Court of Appeals, that of former Kansas Attorney General Steve Six (in photo) stood out. Six is a Democrat who was on the other side of Stegall on abortion-related cases involving former Attorney General Phill Kline. But his endorsement, and the governor’s decision to highlight it, is even more remarkable because of how conservative Republicans in Kansas conspired to trash Six’s name related to abortion and, with the shameless help of Sens. Pat Roberts and Jerry Moran, block President Obama’s nomination of Six to the 10th U.S. Circuit Court of Appeals two years ago. Given that context, Six’s letter describing Stegall as a “deep thinker, a scholar of the law,” “highly principled, ethical,” “always prepared and diligent” and someone who “would make a terrific addition” to the court carries particular meaning.

Brownback didn’t look far to find Court of Appeals pick

Credit Gov. Sam Brownback with nerve in wielding his new power to nominate judges to the Kansas Court of Appeals. His first pick was his chief counsel, Caleb Stegall (in photo) – whose nomination was dismissed by the governor’s spokeswoman in July as “premature speculation.” Stegall, who was passed over for the court last year under the nonpartisan nominating commission system recently scrapped by the Legislature, comes with strong references, strongly conservative credentials and good experience, including as Jefferson County’s elected prosecutor. But he also is closely associated with former Attorney General Phill Kline, having represented him during his legal woes related to prosecutions of abortion providers. Stegall’s nomination will go to the Kansas Senate for a hearing and confirmation vote during the Sept. 3 special session, but it’s hard to imagine he will encounter much opposition in a chamber that was reshaped last year by the victories of conservative Brownback-backed candidates. The governor’s office won’t release the names of other applicants. Welcome to the new world of appellate judicial selection in Kansas.

Praise in Wall Street Journal for Brownback’s judicial plan

“Hell hath no fury like a lawyer scorned, or so it seems in Kansas, where Republican Gov. Sam Brownback is taking abuse for having the temerity to select a judicial nominee for a vacancy on the state’s Court of Appeals,” wrote Collin Levy in a piece headlined “Judicial Showdown in Kansas” in the Wall Street Journal’s Political Diary. Levy defended Brownback’s decision not to release the names of judicial applicants, and said the state’s new process mirrors the federal model and “couldn’t be less radical.” There was also this context: Opposition “groups are in battle stance because they fear Kansas’ partial abandonment in March of the so-called Missouri Plan for selecting judges could have a domino effect in other states. The plan, which uses a commission comprised mostly of lawyers to handpick judicial nominees, has been falling out of favor in many states that have seen the supposedly nonpartisan process push their courts to the left.”

ABA sets Brownback straight on picking judges

As we said last month, the American Bar Association favors the very judicial selection system (with a nonpartisan nominating commission) that the Legislature and Gov. Sam Brownback just junked for the Kansas Court of Appeals. Now, not surprisingly, the ABA has taken issue with Brownback’s confusing recent claim that the ABA “recommends” the state’s new method of selection and, specifically, his decision not to release the names of Court of Appeals applicants. In a recent statement, ABA president Laurel Bellows said the association “emphatically does not recommend Kansas’ new method of judicial selection” because it “invites partisan politics instead of merit-based review of a potential judge’s qualifications.” As for whether the ABA endorses keeping names secret, which Brownback’s spokeswoman said was the intent of the governor’s disputed statement, Bellows said, “The ABA takes no position on the governor’s decision regarding disclosure of potential appointees.”