Category Archives: Kansas courts

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.”

Keep special legislative session focused and brief

Gov. Sam Brownback was persuaded of the need to call a $35,000-a-day special session of the Legislature on Sept. 3 to rewrite the state’s “Hard 50” law, because of questions about its constitutionality in the wake of a U.S. Supreme Court decision last month in a Virginia case. Brownback called the session Friday in response to Attorney General Derek Schmidt’s warning that at least two dozen murder cases could be affected. The Hard 50 sentences now in doubt include that for Scott Roeder, convicted of murdering Wichita abortion provider George Tiller in 2009. Now that Brownback has decided that a special session is unavoidable, it will be up to legislative leaders to keep it narrowly focused and brief.

Fall hearing doesn’t avoid confirmation wait

It’s all well and good that Kansas Senate Judiciary Committee Chairman Jeff King, R-Independence, wants to hold a hearing in October or November for Gov. Sam Brownback’s to-be-announced nominee to the new 14th seat on the Kansas Court of Appeals. But the judge still can’t be sworn in until after the Kansas Senate convenes in January and holds the newly necessary confirmation vote on the position. That’s more than six months after the position became available. Under the system the Legislature just threw out after three decades, with the statewide nominating commission vetting Court of Appeals applicants and submitting three nominees to the governor, the selection process had a statutory limit of 120 days. For example, when a member of the Court of Appeals died in April 2010, his successor was sworn in that September. Under the new system, the same scenario would leave the seat unfilled for nine months.

ABA prefers merit selection of judges

After seeming to waffle last week, Gov. Sam Brownback affirmed his decision not to release the names of applicants to the Kansas Court of Appeals, which had always been made public under the former system involving a statewide nominating commission. That’s troubling, to say the least. It was especially remarkable that in announcing the nondisclosure, he claimed “the American Bar Association recommends this method of selection.” Actually, since 1937 the ABA has favored merit selection of judges involving a bipartisan nominating commission of lawyers and laypeople. A 2008 ABA “how-to” on judicial selection said: “Merit selection encourages community involvement in judicial selection, limits the role of political favoritism, and ensures that judges are well-qualified to occupy positions of public trust.” That’s the system the Legislature just trashed. At least for now, the change only applies to the Court of Appeals.

Bad reasons for hiding judicial applicants’ names

Gov. Sam Brownback still refuses to identify applicants for the Kansas Court of Appeals’ new 14th seat – a secrecy in defiance of the 30-year practice of the statewide judicial nominating commission and last week’s plea by the League of Women Voters of Kansas. In doing so, his office points to the similar process at the federal level, not something to imitate these days. The comparison is also flawed. Federal judges do not apply for the job but are chosen by the president, often upon the recommendation of senators from the relevant states, before their nominations are vetted and confirmed by the U.S. Senate. So there are no applicants’ names to release. Likening the new process to that used for Cabinet jobs doesn’t work, either. Cabinet members serve at the pleasure of a governor. Appellate judges are supposed to serve justice.

UPDATE: The governor’s spokeswoman said Tuesday afternoon that he is considering releasing the names of applicants for the Court of Appeals after all. He should.

Other state legislatures also trying to control courts

The change in judicial selection for the Kansas Court of Appeals, effective Monday, is among the evidence cited in an ABA Journal article headlined “Legislators and special interests are making sure we get the state court judges they want.” Author L. Jay Jackson noted that there were more judicial impeachment attempts in 2011 than at any other time in history and that lawmakers have cut court funding and otherwise tried to attack and undermine state judiciaries. “The legislature would very much like legislative supremacy, but our Constitution requires judicial supremacy,” said former American Bar Association president Stephen Zack, in the article. “It’s an inherent conflict that makes our democracy work. Our judiciary tells the legislature when they can’t do what they want to do. As a result (of the conflict) we have legislators, instead of deferring to the judiciary as a co-equal branch of government, treating the judiciary like an agency – as if it were a library or another bridge project – and that’s not what it is.”

New judicial-reform bills are petty, punitive

New bills aimed at changing (and punishing) the Kansas courts are another example of why the legislative and judicial branches should be kept separate. Apparently angered that the Kansas Bar Association doesn’t support a GOP plan to alter how Kansas Supreme Court justices are selected, Rep. Lance Kinzer, R-Olathe, hastily introduced a constitutional amendment to allow the governor to make lifetime appointments to the state Supreme Court, subject to Senate approval. But in a seemingly contradictory move, he also introduced bills that would reduce the mandatory retirement age for appellate judges to 65 and split the Court of Appeals into criminal and civil divisions, with the criminal division having final say on all criminal cases. These bills are petty attempts to weaken the Supreme Court and purge justices. Kinzer said he doubted that his bills would get a vote before the session ends. They certainly don’t deserve serious consideration.

School mediation fizzle not surprising

It’s too bad, but not at all surprising, that mediation talks on the state’s school-funding lawsuit have been unsuccessful. Because of confidentiality agreements, it is unclear whether more meetings are scheduled. But given that the state lost the last lawsuit, then reneged on the funding agreement, then chose to cut taxes rather than restore funding, the case always has seemed headed to the Kansas Supreme Court. And it’s difficult to imagine the high court failing to uphold the lower court’s ruling that state funding is unconstitutionally low.

Lawmakers pass bad laws; taxpayers get legal bills

It’s amazing how flippant some state lawmakers are about the state’s legal bills, considering them just a cost of doing business. No, they are a cost of making bad laws. The Kansas Attorney General’s Office estimated last week that it will need an additional $1.2 million to defend likely challenges to the state’s new gun, abortion and drug-testing laws. It’s already spent more than $750,000 defending previous abortion laws (and cases are still in the courts). The Attorney General’s Office even told lawmakers earlier in the session that parts of the new gun law couldn’t be enforced and would spur costly lawsuits, but lawmakers passed the bill anyway. It’s as if they are spending other people’s money. No, wait – they are.

Brownback fails his own ‘democracy test’

Gov. Sam Brownback at least brought some badly needed gender diversity to the all-male Sedgwick County District Court Monday by choosing Wichita attorney Faith Maughan to fill the spot left empty by the governor’s appointment of Tony Powell to the Kansas Court of Appeals. Maughan has a good resume, including work with the U.S. Army Reserve Judge Advocate General’s Corps and as a municipal prosecutor and judge. Unfortunately, Brownback shunned the traditional input of the Wichita Bar Association and declined to even release a short list of finalists – odd for a governor who has decried the secrecy of the state’s merit-selection process for appellate judges. And Brownback, who also has spoken of judicial selection needing to pass the “democracy test,” has someone in Maughan who lost the GOP primary for a judgeship by 9 percentage points last August. Plus, her sharply partisan campaign cast doubt on her ability to be fair and impartial, especially should a case relating to abortion come to her courtroom.

Time no longer on a rapist’s side in Kansas

Good for the Legislature and Gov. Sam Brownback for taking steps to bring more rapists and child molesters to justice with House Bill 2252, which eliminates the statute of limitations on rape and aggravated sodomy and makes it easier for adults to report sex crimes that occurred when they were children. As Kansas Attorney General Derek Schmidt noted, successful prosecutions still will need good evidence. But because of technology and the new state law, time will no longer be on the side of a sex offender intent on escaping justice.

Court-fee bill looks like another money grab

Rep. Mark Kahrs, R-Wichita, said that a House-passed bill that puts revenue from court docket fees under the control of the Legislature would provide “more transparency, more accountability and more trust,” the Topeka Capital-Journal reported. But others see it as yet another attempt by the Legislature to sweep up designated fees and use them for other purposes. Rep. Jim Ward, D-Wichita, noted that the docket fees were instituted because the Legislature was inadequately funding the courts. The only people who think the state won’t use this money to cover its budget shortfalls, Ward said, also “believe in Santa Claus and the Easter Bunny.”

First new law of 2013 bad for Kansas courts

How regrettable that the first bill to become law this year – House Bill 2019, which Gov. Sam Brownback signed Wednesday – was one that needlessly politicizes a merit-selection process for the Court of Appeals that has served Kansas well for 36 years. Now, Kansas reportedly is unique in the nation for selecting Court of Appeals judges one way and Supreme Court justices another way. Because the new system lets the governor pick anyone he wants but requires that his choices be confirmed by the Senate, which only works during the spring, the change could result in long-vacant seats on the court. Never mind that January poll showing 61 percent of Kansas voters opposed changing how appellate judges are selected. And so much for the 10th U.S. Circuit Court of Appeals’ 2012 opinion that the nonpartisan nominating commission long used for Kansas’ appellate courts “is designed to ensure the conduct of the executive branch does not threaten the integrity of the judicial branch.”

August is poor time to amend state constitution

Even those who think Kansas needs to alter its constitution to try to prevent courts from making decisions about school funding should see a glaring problem with the amendment approved Wednesday by the Senate: It would put the issue to voters at the August 2014 primary. It was wrong to hold a vote to rewrite the state constitution to bar same-sex marriage in April 2005, when only 35.5 percent of registered voters turned out. It would be just as wrong to try to rewrite the constitution in an August primary, especially one in which seats for only one chamber of the Legislature are on the ballot. Turnout was 23.2 percent statewide in August 2012 and 25.2 percent in August 2010, compared with 66.8 and 49.7 percent in the general elections of those years. As state Sen. Carolyn McGinn, R-Sedgwick, argued Wednesday in unsuccessfully trying to persuade senators to move the vote to November 2014, independent voters may not even realize they can vote in a primary on the issue. If the House agrees to put the amendment on the ballot, it at least should change the date.

Bill would require chief justice to address Legislature

Kansas House Speaker Ray Merrick, R-Stilwell, was free to deny Chief Justice Lawton Nuss’ (in photo) request to speak to a joint session of the Legislature, and ask the chief justice instead to put his State of the Judiciary report in writing. But a bill introduced by Rep. Jim Ward, D-Wichita, would newly spell out the chief justice’s responsibility to deliver such an oral report to the Legislature at the beginning of each session. It also says the governor “shall deliver an oral State of the State address to every session of the Legislature” – an annual tradition not currently required by law, Ward said.

Kansas already like Texas on underfunding schools

It turns out Kansas is already like Texas – at least on underfunding schools. A three-judge panel in Topeka ruled last month that Kansas’ school funding was unconstitutionally low. A Texas judge ruled this week that Texas wasn’t providing enough money to schools or distributing it fairly. Rather than increase funding, some Kansas lawmakers think they can prevent such rulings by amending the state constitution. But school attorney John Robb of Newton said that such an amendment likely would lead to more lawsuits.