Kansas legislators, locked in disagreement with the judiciary over public school funding, are finding “new ways each week to show contempt for Kansas’ courts” with legislation to bully them, a Lawrence Journal-World editorial says.
In addition to court funding legislation, a litany of other intimidation attempts includes, according to the editorial, “pending bills to lower justices’ mandatory retirement age and to replace the Kansas Court of Appeals with separate civil and criminal appellate courts. Waiting in the wings: proposed constitutional amendments that, if approved by the Legislature and voters, would have Kansas switch to direct partisan election of appellate judges, allow recall elections of judges statewide and make it harder for Supreme Court justices to survive retention votes.”
The editorial says what Kansans ought to be concerned about is how “the troubling lack of respect shown by one branch of state government for another … might lead to further assaults on the funding, authority and independence of the state judiciary. The courts must have all three in order to serve Kansans and justice properly.”
Legislation introduced in the Kansas Senate this week spells out circumstances for impeaching a state Supreme Court justice, and it adds as a grounds for impeachment any attempt to usurp the authority of the legislature.
Republican State Sen. Mitch Holmes, reported to be the legislator behind the bill, told the Associated Press that existing constitutional language doesn’t give guidelines to legislators. Others, however, saw in the legislation another weapon for legislators to use in attacking Kansas courts, especially at a time where the courts and the legislature have not seen eye-to-eye about public education fund.
Political science professor Chapman Rackaway of Fort Hays State University told the Hutchinson News that parts of the legislation seemed “a very clear attempt to allow the legislators to impeach justices based on decisions like Gannon” v. State of Kansas, an ongoing case over education funding.
A Lawrence Journal-World editorial said the bill’s “attempting to usurp” language “opens wide the opportunity for two branches of the Kansas government to gang up on the other in arbitrary, unethical and damaging ways.” The editorial added: Read more
“Kansans should be alarmed” by the rhetoric of elected politicians in Topeka who, in their desire to exercise total control, have launched irrational attacks on state courts, Davis Merritt writes in a Wichita Eagle blog post.
Amid tensions between the legislative and judicial branches of public school funding, there are “legislative threats to limit the court’s jurisdiction, disrupt the balance of powers, gut the court’s funding and further politicize how justices are selected,” he writes.
As for elected politicians who see the Kansas court system as standing in their way, Merritt says, “Of course it is. That’s a primary duty of the judicial branch in a democracy: acting as a check on excessive power and extra-constitutional acts by either the legislative or executive branch, or, in the case of our present lockstep monolith, both.”
Will tensions between the legislative and judicial branches over public education funding in Kansas lead to a constitutional clash? A New York Times article examines that question against a backdrop of the governor’s seeking more power over selection of Supreme Court justices.
Republican Gov. Sam Brownback and the Republican-led legislature championed a new, close to $4 billion funding plan that, according to the Times, “cut tens of millions of dollars in aid intended to close disparities between rich and poor districts.” The legislation passed “even as a three-judge panel hinted that it might stay the measure while it determines whether the Legislature was breaching its financial obligations. Republican leaders have denounced the court as overstepping its bounds.”
Meanwhile Brownback and legislators have been pushing to dismantle a merit selection system for choosing state Supreme Court justices (see Gavel Grab). One alternative proposes a Washington-style system allowing direct appointment by the governor with confirmation by the state Senate. Read more
An opinion column in the Kansas City Star declares “Kansans are wisely opposed to abandoning merit selection,” and it cites a recent poll commissioned by Justice at Stake to make its case.
The column by Bob Sigman, a freelance writer who once served on the newspaper’s editorial board, says about proposals (see Gavel Grab) to dump a judicial nominating commission process for choosing state Supreme Court justices:
“A judicial change would run counter to the public sentiment of Kansans. Justice at Stake, an advocacy group for merit selection, found in a recent poll of likely voters that 55 percent oppose partisan judicial elections and 76 percent oppose the federal system.”
Former Kansas Gov. John Carlin has warned that the state, weighing changes to the way state Supreme Court justices are chosen, must be aware of a 1950s political scandal that fueled reform and the led to the current system.
At his blog, Carlin wrote that “The public outrage that followed” the scandal, called the “triple play of 1956,” ultimately “led to the voters adopting a constitutional amendment for merit selection, giving us the Supreme Court Nominating Commission we have today.” The legislature is debating proposals to dump the screening commission and replace it with direct appointment by the governor, subject to Senate confirmation, or contested elections (see Gavel Grab). Carlin wrote: Read more
A bill to split the Kansas Court of Appeals into two divisions, one criminal and one civil, and strip the state Supreme Court of authority to review criminal appeals was introduced Friday, according to Gavel to Gavel.
The bill has similar features to one introduced in the Kansas legislature in 2013 that did not succeed. It comes during a period of numerous attacks on the way Kansas courts do business, the way judges are selected, and the authority of the courts themselves. This session, a high-profile effort is under way in the legislature to eliminate merit selection of Supreme Court justices, and Gov. Sam Brownback has voiced support. Read more
The Kansas Senate voted 31 to 9 to confirm Kathryn Gardner to the state Court of Appeals, at the same time the Senate’s leading Democrat voiced concerns about using a Washington-style model for selecting judges.
Former federal court law clerk Gardner was Gov. Sam Brownback’s second nominee under the Washington-style process adopted by the legislature for picking Court of Appeals judges, supplanting a merit selection system. The legislature now is considering whether to dismantle merit selection for state Supreme Court justices.
“Merit-based selections of judicial appointments ensure qualified candidates for our judiciary. The federal model ensures partisan outcomes,” said Senate Minority Leader Anthony Hensley, according to a Topeka Capital-Journal article. Read more
Kansas Gov. Sam Brownback’s latest nominee for the state Court of Appeals, attorney Kathryn Gardner, received a cool reception at a hearing of the state Senate Judiciary Committee, yet it ultimately approved her nomination.
She is Brownback’s second nominee for the court since the Kansas legislature jettisoned a merit selection process for these appellate judges and gave the governor direct appointment authority, subject to Senate confirmation. A bill to revise the new process and make public the names of all applicants for the court has passed the Senate and awaits House action. Read more
In these other dispatches about fair and impartial courts:
- MSNBC reports that the Supreme Court scheduled oral arguments on marriage equality for April 28th. The arguments will cover cases from Kentucky, Michigan, Ohio and Tennessee.
- The Kansas Supreme Court denied the state’s motion requesting a stay on a school finance case, and remanded it to a Shawnee County District Court, according to cjonline. The move clarified confusion caused by dual filings.