The Kansas Supreme Court’s decision extending the right to jury trials to juvenile defendants has courts reeling statewide. But it may not mean much to the 16-year-old defendant in the case, which was returned to Finney County District Court for a new trial. The teen, who had been sentenced to 18 months for aggravated sexual battery and possessing alcohol, since has been indicted in federal court on identity theft and faces deportation.
The Kansas Supreme Court made a balanced ruling Tuesday that a Wichita grand jury investigation of abortion doctor George Tiller is constitutional but that it needs oversight by a local judge. The court said that while the grand jury can issue subpoenas seeking abortion records, Judge Paul Buchanan needs to make sure that those subpoenas meet relevance thresholds, don’t create an undue burden and aren’t issued out of malice with an intent to harass. Buchanan also needs to make sure the privacy of the patients is protected.
Kansas is one of only six states that allow citizen-petitioned, taxpayer-financed grand juries. The previously little-used process has been a favorite of late by anti-abortion activists. A Johnson County grand jury, upset about wasting three months on an anti-abortion crusade, recommended in March that the state increase the standards for impaneling grand juries. But until that happens, local judges need to make sure this process isn’t abused.
Sedgwick County grand jury wants to review George Tiller’s medical records to determine whether he has performed illegal late-term abortions. His lawyers say that will violate patient privacy, even if identifying information is redacted. During Tuesday’s nearly three-hour hearing of the records case before the Kansas Supreme Court, one exchange between an attorney and a justice was enlightening:
“There is no blanket privilege to have all identifying information excluded,†said David Lowden of the Sedgwick County District Attorney’s Office, arguing the grand jury’s side.
“There is no blanket authority for the state to have any information they want,†responded Justice Lee Johnson.
It seemed like a good idea at the time — pretesting the constitutionality of the state’s new funeral picketing law, to avoid the risk of losing in court later and having to pay the Phelpses’ legal fees. But the Kansas Supreme Court struck down the law Tuesday, ruling that the lawsuit-trigger provision violated the separation of powers and noting that its job is not to offer opinions about laws that have yet to go into effect. That makes sense, as it raises the question of whether the same fate awaits the pretest of the constitutionality of the gambling expansion. In any case, it’s encouraging that both lawmakers and Attorney General Stephen Six are eager to fix the funeral-picketing law to get it into effect, so that the state is on record prohibiting protests within 150 feet of a funeral one hour before, during and two hours after a service. Meeting with The Eagle editorial board Tuesday, Six called the law a “worthy goal and something I support.â€
Speaking of justices who are older than 70, state Sen. Terry Bruce, R-Hutchinson, is pushing a bill to raise the mandatory retirement age for district court and Court of Appeals judges so they could finish any term they began prior to age 75, rather than having to quit the moment they hit 75. The bill also would allow Kansas Supreme Court justices to work to the end of the six-year term during which they turned 73. “I think we need to take advantage of the wisdom of our elders,†he said. He also noted that the state has no mandatory retirement age for lawmakers, governor or other state jobs. Maybe it should. Or maybe the state should rethink the need for any mandatory retirement ages. With life expectancy having risen from 68 to 77 since 1950, and with Social Security unprepared for baby boomer retirements, people need to start thinking of 75 as the new 65 anyway.
Bruce may face opposition over what seems like a simple proposal, though, given the irrational contempt that some GOP legislators have for the judiciary these days.
It seemed like a good idea at the time: Spare the state the infuriating potential expense of being ordered to pay the Phelps clan’s legal bills by submitting the new funeral picketing law to a preventive test of its constitutionality. But the Kansas Supreme Court last week signaled Attorney General Paul Morrison that it has legal problems with his lawsuit, giving him until Aug. 24 to explain why it shouldn’t be dismissed. Even if the pretest strategy doesn’t work, the law remains worthwhile, whatever court fights it invites. The state that is the unwilling exporter of the Westboro Baptist Church’s troop funeral protests needs to be on record opposing and trying to limit them.
Posted by Rhonda Holman
The Kansas House is debating again whether the state needs to change how it chooses its Kansas Supreme Court justices and Kansas Court of Appeals judges to include a federal-style Senate confirmation. Champions of change say the current system is political. But “we never talk about politics in those meetings. It just doesn’t come up,” said Wichita attorney Richard Hite, who chairs the nine-member nominating commission that chooses three nominees based on merit for the governor’s final decision.
To the idea that a Senate confirmation would be political, as Congress unerringly demonstrates, Alan Cobb of the Kansas chapter of Americans for Prosperity said: “This would be the politics of the people, versus politics of the lawyers.”
But surely the people realize that the state’s top courts need to be staffed by the top lawyers in the state, not by politicians.
Posted by Rhonda Holman
When Democratic Gov. Kathleen Sebelius appointed a Republican, Kansas Court of Appeals Judge Lee Johnson, to the state Supreme Court earlier this month, she got no props from House Speaker Melvin Neufeld, R-Ingalls. He’s still pushing for Kansas Senate hearings and confirmation of appointees to both state courts — a fading reform idea that didn’t even get as many senators’ votes last March as it had sponsors the year before. Many realize it would needlessly politicize these courts and deter top lower-court jurists and attorneys from applying. Neufeld argues that the current process gives the Kansas Bar Association too great a role in filling these positions. “That setup that we now have has evolved to a good-old-boy club,” he told the Topeka Capital-Journal. But who better than the KBA, which chooses five of the nine members on the independent nominating commission that recommends three names to the governor, to ensure that these crucial jobs go to top legal minds rather than to clueless partisan hacks?
Posted by Rhonda Holman
Gary Kleypas, the first of the 11 men to be sent to Kansas’ death row under the state’s 12-year-old revived death penalty, recently was cleared by the Kansas Supreme Court for another sentencing hearing, meaning execution remains a possibility. Meanwhile, capital punishment continues to slide out of favor with some judges and, to a much lesser extent, the American public; the 53 executions in the nation this year were the fewest in a decade. A federal judge ruled Friday that California’s method of lethal injection risks being cruel and unusual punishment. Last month, a federal judge declared Missouri’s means of lethal injection to be unconstitutional. And Florida Gov. Jeb Bush suspended all executions Friday after it took 34 minutes and two doses to execute a prisoner earlier in the week.
Could Sen Sam Brownback, R-Kan., who has lost his enthusiasm for capital punishment except in the worst cases, be right in step with the American people on this issue?
Posted by Rhonda Holman
Most of the criticism of the Kansas Supreme Court has been political. Last week found some that was geographical, with the Johnson County Sun’s opinion page editor, Bob Sigman, lamenting that the state’s most populous county does not have a candidate among the top three nominees for the latest opening on the court. Noting that only one “bona fide” Johnson Countian has ever served on the court and that four county residents were among the 14 applicants this time, Sigman said, “Surely no other place in the state has a superior talent pool — judges and lawyers — than Johnson County.” He added: “On an ideal, balanced court, it should be appropriate for the most heavily populated county in the state to have a place at the table.” The final three, by the way, are former Wichitan Tom Malone, a member of the Kansas Court of Appeals since 2003, as well as Court of Appeals Judge Lee Johnson, who formerly practiced law in Caldwell in Sumner County, and Douglas County District Judge Robert Fairchild.
Posted by Rhonda Holman
It looks like partisan differences will prevail to the end of a special Kansas House panel’s investigation of the “Nuss fuss,” which is now expected to conclude later this month with release of both a majority report and a minority report. In one corner we have Republicans, still suspicious that contact between Kansas Supreme Court Justice Lawton Nuss and two state senators influenced legislative voting on school finance. In the other corner are Democrats such as Rep. Jim Ward of Wichita, who said this week: “There has been no evidence any legislator was influenced.” If this whole process has a point, it had better show up in the dueling final reports.
Posted by Rhonda Holman
Frustrating as it is for Sedgwick County voters to judge which judicial candidates are best, the answer is not for candidates and sitting judges to declare positions on hot-button social and political issues during the campaign. So it’s disturbing that Sedgwick County District Judge Eric Yost recently asked to join the other plaintiffs, including incoming Judge Robb Rumsey, in the federal lawsuit challenging the state’s judicial ethics canon, which limits what candidates for judge can say during campaigns.
Part of a national effort in reaction to a 2002 U.S. Supreme Court decision in a Minnesota case, the push to let judges and judicial candidates speak freely sounds great on its face. “There are two sets of rights involved here — the right of the judge to speak and the right of the people to know,” Richard Peckham, the Andover attorney who chairs the statewide Kansas Judicial Watch group, told the Kansas City Star.
But the questions on the group’s candidate questionnaire reveal a narrower goal: to pin down candidates on the school-finance lawsuit, same-sex marriage, assisted suicide and abortion. Such opinions are irrelevant to a judge’s decision making, which should be based on the law. The expression of such opinions also jeopardizes impartiality and the ability to do the job once on the bench, forcing the judge to recuse himself from cases related to his stated opinions. How does that serve justice?
Posted by Rhonda Holman
Now that Kansas Supreme Court Justice Lawton Nuss has been admonished by the Commission on Judicial Qualifications, it’s hard to argue with the call by state Rep. Jim Ward, D-Wichita, for the House panel investigating the Nuss matter to give it up. “Now we have all the facts. At this point, what else can you do? Why would we spend money to continue to beat this dead horse?” Ward asked in the Topeka Capital-Journal. The judicial ethics panel also was able to hear from the senators involved in Nuss’ inappropriate conversation about the school finance case, something the House panel hasn’t been able to do because of senators’ resistance on constitutional grounds. Ward also said that despite several weeks of campaigning in his district, “I’ve not heard one comment about this outside the dome.” Enough.
Posted by Rhonda Holman
GOP gubernatorial candidate Jim Barnett had called for Justice Nuss to resign over his ethics lapse. So when the Commission on Judicial Qualifications admonished Nuss, Barnett cited it as further evidence that the state needs a new way of picking justices and told the Capital-Journal: “I’m not surprised that judges have decided another judge hadn’t done anything wrong.”
For the record, though, the 14-member commission, chosen by the Supreme Court, includes four laypeople as well as six retired or active judges and four lawyers. Its current lay members are Bruce Buchanan of Hutchinson, Mary Davidson Cohen of Leawood, Christina Pannbacker of Washington and Carolyn A. Tillotson of Leavenworth.
Posted by Rhonda Holman
