Category Archives: Kansas courts

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.

Repeal one-judge law or pay for 22 more judges

If legislators really want the state to operate more efficiently, they should heed the call of Kansas Supreme Court Chief Justice Lawton Nuss (in photo) to repeal a state law requiring at least one judge be located in each of the state’s 105 counties. The 30-year-old statute has resulted in a misallocation of resources, with judges in populous counties such as Sedgwick having more cases then they can handle, while judges in some sparsely populated counties have little to do. Repealing the statute would “allow the court to apply sound principles of business management – to run the judicial branch of government more efficiently and effectively, and better meet the justice needs of Kansas citizens,” Nuss said in the State of the Judiciary report he submitted last week. If the Legislature doesn’t repeal the law, Nuss said, it needs to provide funding for 22 new district judge positions.

Proposed date for constitution vote not very democratic

GOP state senators say they want to change how Kansas selects its Supreme Court justices and Court of Appeals judges in order to make the process more “democratic.” Yet nearly all of them opposed an amendment by Sen. Carolyn McGinn, R-Sedgwick, to have the public vote on changing the state’s constitution as part of the November 2014 general election, rather than during the August 2014 primaries. Few Kansans vote in the primaries, and those who do are disproportionately conservative Republicans. But that, of course, is why the senators want the vote in August.

Public still supports current system of picking judges

When a poll was released earlier this month showing that 61 percent of Kansas voters opposed changing how state Supreme Court justices and Court of Appeals judges are selected, some conservatives tried to discredit the results by saying that liberal billionaire George Soros was behind the poll. But a new survey sponsored by the Kansas Policy Institute and its conservative backers found similar results, with 54 percent of the public saying that it is in citizens’ best interest to have judges recommended by a nominating panel, a majority of whose members are attorneys. Even 50 percent of Republicans supported the current system. So what did the Kansas Senate do? It voted Wednesday to change the system that the public supports.

New judges, assignments at District Court

As the Legislature debates judicial-selection reform for the appellate courts, the Sedgwick County District Court is going through major change as well. Two newly elected judges, Dave Dahl and Steve Ternes, were both assigned to family law. Judges Tim Henderson, Eric Commer and Eric Yost are the newly assigned presiding judges in juvenile, family law and probate, respectively, and the Probate Department has relocated from the Courthouse to the Juvenile Courthouse, 1900 E. Morris. And more change is coming, in the wake of Gov. Sam Brownback’s appointment of Judge Tony Powell to the Kansas Court of Appeals; the governor will accept applications and name Powell’s replacement. It was surprising to see Judge Richard Ballinger reassigned from probate to civil, given how Eagle letter writers and others cited his expertise and long tenure as presiding probate judge in supporting his successful re-election bid in November. Ballinger recently told The Eagle editorial board that the change was not his preference. Chief Judge James Fleetwood said Friday that the probate changes make for a “more efficient use of staff and supervisory personnel” and that Yost had some impressive and creative ideas for how to manage resources. “I am convinced it’s a good move,” Fleetwood said.

Poll finds support for status quo on selecting justices

As state lawmakers heard testimony this week on both sides of Gov. Sam Brownback’s call to change how Kansas selects appellate-court judges, a new poll was released favoring the status quo. Commissioned by Justice at Stake, a group based in Washington, D.C., “dedicated to the preservation of fair and impartial courts,” the survey found that 61 percent of Kansas voters would oppose changing the state constitution to mirror the federal model, so the governor could nominate justices for the Supreme Court subject to Senate confirmation; 21 percent supported that change, while 18 percent were undecided. In the same poll, 73 percent said they were not satisfied with the results of the 2012 elections in the nation and state, and 57 percent said Kansas was on the wrong track.

Kansas chamber to stay out of judicial selection

The Kansas Chamber of Commerce, newly led by former House Speaker Mike O’Neal, has an aggressive legislative agenda aimed at phasing out all individual and corporate income taxes and pushing for changes related to state employees’ pensions and unions’ political influence. But both Kent Eckles, the chamber’s vice president for governmental affairs, and Eric Stafford, the chamber’s senior legislative affairs director, told Associated Press that the chamber will stay out of the debate about changing how appellate judges are chosen. O’Neal has said the Kansas Supreme Court stepped over the line in requiring the Legislature to increase school funding. But he once responded to a proposed constitutional amendment to change how Supreme Court justices were chosen by asking: “What’s wrong with what we’ve got now?”

School-funding lawsuits are common

Kansas isn’t the only state battling in court over its school funding. Nine other states (including Colorado and Texas) have school-funding lawsuits in the courts, and four other states recently wrapped up legal challenges, the Washington Post reported. Since 1973, when a U.S. Supreme Court case indicated that it was OK to challenge school-finance plans at the state level, all but five states – Delaware, Hawaii, Mississippi, Nevada and Utah – have had funding lawsuits. But winning a lawsuit does not necessarily result in more money, or consistent funding. The Kansas Legislature agreed to large funding increases in 2005 and 2006 after having lost a funding lawsuit. But because of funding cuts in recent years due to the economic downturn, the state’s education budget this fiscal year is 13 percent less when adjusted for inflation than it was in the 2007 school year, according to the Center on Budget Policy and Priorities.

Of course the state lost school-funding lawsuit

It was no surprise that a three-judge panel ruled Friday that state funding for public schools is unconstitutionally low. After all, the Kansas Supreme Court reached the same decision in 2006, and the state agreed to a significant funding increase. But when the recession hit, the state began abandoning that promise and cutting spending, to the point where per-pupil base aid is now lower than it was in 2006. The Brownback administration and many lawmakers have acted as if that earlier court ruling never happened, and they no doubt will appeal this case to the Supreme Court. But why would the result be any different this time?

Sex with a student is not a ‘relationship’

Last week offered two needed reminders that teachers who have sex with students don’t just exercise poor judgment, cross an ethical line and violate a public trust. They also break the law and risk jail time. The Kansas Court of Appeals upheld a state law that prohibits sexual contact between a teacher and an older teen student, noting “the disparity of power inherent in the teacher/student relationship” as it affirmed the conviction of former Wichita Northwest High School choir teacher Charles Edwards for having had sex with a then-18-year-old student. Also on Friday, Kurt M. Brundage, 33, got 32 months in prison after pleading guilty to two counts of taking indecent liberties with a child while he was an English teacher at Wichita East High School. His victim, who was a 15-year-old former East student at the time, said at Brundage’s sentencing hearing that she wished people wouldn’t use the word “relationship” when describing what happened in her case. That’s an excellent point. There are much better words for it, starting with “sex crime.”

Super PAC spending on judicial race is troubling

Something certainly smells about an out-of-state political action committee spending money on a Sedgwick County judicial race. The Georgia-based super PAC Safe Nation has been running a radio ad in Wichita criticizing District Court Judge Richard Ballinger and urging people to vote for his challenger, Zoe Newton, who works for businessman Wink Hartman. Why would people in Georgia care about a low-level judicial race in Wichita? They probably don’t. More likely, someone from Kansas is funneling money through a straw organization to try to avoid attention and contribution limits. Such moves have become common in national races and some statewide races. But it is particularly troublesome if the practice spreads to the election of local judges, who are supposed to be independent.