instagram arrow-down
The Kansas Leadership Center Journal

Menu

Categories

Recent Posts

Archives

When the Bench Becomes a Hot Seat

By: Dawn Bormann Novascone

The Kansas Supreme Court faces increased scrutiny in the aftermath of high-profile rulings on public school funding and the death penalty. Chief Justice Lawton Nuss, the court’s senior justice and perhaps its most visible face, aims to hold steady through the heat.

 

Editor’s Note: This story is based on an interview with Kansas Supreme Court Chief Justice Lawton Nuss that took place Feb. 19 to discuss leadership and the challenges facing the judiciary in Kansas. Since that time, the court has ruled that the Legislature’s latest attempt to provide equitable school funding unconstitutional and reaffirmed its June 30 deadline for addressing the situation.

***

Inside Kansas Supreme Court Chief Justice Lawton Nuss’ chambers, a playful sign is perched at the edge of his desk.

“Alles ist meine Schuld!” Roughly translated from the German, it means: “Everything is my fault.” 

“It’s a reminder to me,” Nuss says, “that it’s my responsibility what goes on in the judicial office.”

These days he hardly needs a reminder of the weight he carries in his role as the chief justice of the seven-member court, the administrative authority for all Kansas courts, and the most visible face of an institution that’s under heavy fire from a significant faction of the political spectrum. The court has come under a microscope following rulings in politically charged cases, including its findings that under the Kansas Constitution the current school funding formula is inequitable and that two notorious murderers were improperly sentenced to death. The opinions made the justices a lightning rod for criticism by Gov. Sam Brownback and the conservative, Republican-dominated Legislature.

This November, Nuss and four other justices have to stand before voters in a judicial retention election to remain on the bench for six-year terms. Voters, who are given a choice of voting “yes” or “no” on whether to keep the justices in office, traditionally support keeping members of the judiciary by overwhelming majorities. But on the heels of close retention votes for two justices in 2014, interest groups have said they intend to seek the removal of justices, a campaign that could be extensive, essentially unregulated and also unprecedented in Kansas.

 

The confluence of events surrounding the courts in Kansas prompts big leadership questions that don’t have quick or easy answers. With the stakes so high, what options, if any, do Nuss and others on the court have for exercising leadership? Is the court’s role solely to exercise its authority and attempt to maintain its integrity, impartiality and independence? Or should it be trying more to build bridges, either with the general public or the lawmakers who now routinely criticize it? What does leadership look like when the courts and many lawmakers are so divided?

 

Some critics (including the Kansas Republican Party and the state’s largest anti-abortion group, Kansans for Life) are already calling for Nuss and Justices Marla Luckert, Carol Beier and Dan Biles to be voted out of office. Writing earlier this year in The Wichita Eagle, Richard J. Peckham, an Andover attorney and the chairman of Kansas Judicial Watch, a group critical of the courts, accused the justices of showing “disregard for the constitution, the statutes and the people of Kansas.” He supported retaining Justice Caleb Stegall, Brownback’s lone appointee to the high court, who has served on the bench since December 2014.

One thing Nuss feels strongly about is when critics call out decisions, his job isn’t to be popular.

“I think it’s a sense of duty that keeps me going,” says Nuss, who graduated in the same University of Kansas School of Law class as Brownback. “The people of Kansas have retained me in office in two different statewide elections. And they didn’t keep me just so I would say yes to everything and just go along with what some politicians want me to do. They’re expecting a lot more of their chief justice than that. Otherwise anybody could do this job if you’re just going to say yes, yes, yes to everything.

“Our job is to uphold the constitution, and the constitution is the people’s document.”

 

‘Can’t Duck the Debate’

Since becoming chief justice, Nuss, a Salina native who wears cowboy boots to work and keeps a pair of spurs in his office, has certainly played a key role in efforts to increase public understanding of the court system and how its operates.

In recent years, the court has begun live-streaming oral arguments to make the process more accessible to anyone with an Internet connection and taken its operations to public locations around the state. Nuss has opened the court to outside feedback on budgetary issues by appointing an advisory committee that includes the public and legislative critics of the court. In addition to the barbs lawmakers lob at the court generally, he faces criticism from lawmakers who say he – along with much of the rest of the court – remains too distant from the other two political branches of government at a time when conflict between them threatens to reach all-time highs.

In the face of high heat – justices have been called bullies, activists, and even lazy and incompetent by their critics – Nuss aims to hold to his purpose of making decisions as judges should: based on the law and the facts of the case. “All we can do is keep doing our jobs, which is to review the constitution,” says Nuss, who declined to discuss specific cases during the interview.

But it’s also an increasingly fraught duty, not just in Kansas, but for judges across the country. Nuss and his Supreme Court colleagues are hardly the first members of the judiciary to be criticized by those in the executive or legislative branches. And they certainly won’t be the last. But this seems to be an especially pressure-packed moment for the Kansas court.

Some blame the 24-hour news cycle and a politically polarized country. But scholars also point out that courts like Kansas’ have been asked to step in often to decide fiercely divisive issues that lawmakers can’t or won’t reconcile – and that lack much societal consensus as well.

“More and more hot-button issues are brought to the courts and resolved. In the past few years, we’ve had things like same-sex marriage, school funding, abortion rights and so on,” says Richard E. Levy, the J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas Law School. “And courts don’t have the ability really to say, ‘Well we’re not going to decide this issue.’ If parties are litigating it and it’s a real case, they have to decide it.”

They can’t duck the debate. Much as people exercising leadership have to choose among competing values, judges often can’t avoid making difficult choices.

“Most cases – even though they’re politically charged – they have to answer the question one way or another. And in answering the question one way, they’re naturally going to tick off the people that think it should be answered the other way,” says Levy, who has remained nonpartisan as the debate roars between government branches.

“So the more highly charged political issues that come before the court, the more they’re likely to be seen as political.”

For better or for worse, judges have increasingly become society’s tiebreakers on disputes that spill over into the legal system. It’s a role Nuss didn’t exactly sign up to play. But it’s one he can’t step away from either.

 



‘Who are These People?’

If Nuss is intimidated, he doesn’t let on.

His top-floor office in the Kansas Judicial Center provides a striking view of the Kansas Capitol. On this sunny winter morning, the Statehouse’s flags were lowered to honor U.S. Supreme Court Justice Antonin Scalia. The legendary conservative justice had died days earlier and his passing filled the headlines.

Earlier in the year, Scalia had written for an 8-1 majority of the U.S. Supreme Court in overturning the Kansas Supreme Court’s controversial decision vacating the death sentences for Wichita murderers Jonathan and Reginald Carr, as well as that of Sidney Gleason, convicted of murdering a Great Bend couple in 2004.

But Nuss found solidarity with Scalia, who Nuss says had agreed with him on some previous rulings, in one of the quotes he came across, which summed up the life of a judge.

 

“That holds true for the most conservative to the most liberal to everyone in between,” Nuss says. “That’s why we’re here.”

 

“The main thing is that when you come to a conclusion that the law requires, you have to accept the fact that that is the conclusion regardless of what you may personally think about it,” Nuss says, paraphrasing Scalia’s thought. “And he said we make decisions that are contrary to what we may believe but if the law requires that decision to be made, then it’s our job to make that decision.”

It resonated with Nuss.

“That holds true for the most conservative to the most liberal to everyone in between,” Nuss says. “That’s why we’re here.”

But for many in the Legislature, the justices of the Kansas Supreme Court are a bit of a mystery. Some don’t feel they understand who the justices are or how they come to the decisions that they do.

State Rep. Pete DeGraaf, a conservative Republican from Mulvane, says geography might be part of the problem when it comes to tension between the judicial and legislative branches. All branches used to be housed in the Capitol. But with the judiciary across the street, the two branches hardly interact.

“We rub shoulders with the executive branch regularly,” he says. “We don’t see them (the justices) very often, and I don’t think they even see the Kansas people very often. They’ve pretty much cloistered themselves off.”

DeGraaf was part of the budget committee Nuss put together years ago. DeGraaf says he felt honored to receive the invitation and be part of the work. He’d like to see the branches spend more time together.

“Relationships take time and energy,” he says.

Yet relationships become further strained, he says, when the U.S. Supreme Court overturns controversial state decisions, rulings that DeGraaf thought were out of step with Kansans.

“Then you begin to wonder, ‘Who are these people, and where do their beliefs of truth and justice come from?’” he says.

 

‘Always a Marine’

If the public rarely gets a glimpse of the person who sits on the bench, Nuss’ office does offer some clues. It is filled with treasured mementos that show his affection for history and love of his family. His son’s military dog tags have a place of honor. Bar association awards hang on the wall. A spittoon from the old Supreme Court Room sits at his feet. Visitors can’t miss the needlepoint pillow made by his grandmother and a butcher knife used by his grandfather.

His admiration for Presidents Abraham Lincoln and Theodore Roosevelt is also on clear display. Images of the men and books about them are among the many treasured things that Nuss, who bears a resemblance to Roosevelt, keeps in his office. He marvels at Lincoln’s “team of rivals” approach — appointing those who opposed him to his Cabinet. Nuss admires how Roosevelt earned a Medal of Honor for courage and honor in war and a Nobel Peace Prize for negotiating peace.

The men provide an example of sorts for Nuss, who was appointed by Republican Gov. Bill Graves in 2002 and became chief justice by seniority in 2010.

“They overcame such conflict to accomplish things that when I look at the amount of pressure they were under, to compare my pressure is just infinitesimal. But I can take them as my examples. So if Lincoln can be president during the Civil War and Theodore Roosevelt can manage all the things he did, then certainly I can manage my position as chief justice.”

Friends and colleagues say Nuss is known for keeping a steady hand and listening to all views.

That’s clear when he’s on the bench asking questions, they believe, but it also can be traced all the way back to his time as a young officer in the Marines.

Nuss attended the University of Kansas on a Navy ROTC scholarship. He went on active duty in the Marine Corps immediately after graduation in January 1975 and spent the next several years as a combat engineering officer with the Fleet Marine Force Pacific.

His first sergeant, Ray Horwath, still remembers how newly commissioned officers would roll in wanting to pull rank on the enlisted men. But Nuss was different.

“He had a lot of respect for me, and in turn I had a lot of respect for him,” Horwath says. “His judgment was great.”

Their bond has lasted nearly 40 years. Horwath, now 74 and living in North Carolina, stops in during cross-country motorcycle rides. He doesn’t have time to read every decision handed down in Kansas.

But he knows his friend’s good judgment hasn’t budged. Even if Horwath, a proud Christian, doesn’t agree with Nuss’ court rulings, he knows his friend has access to more information.

“Me as an individual, all I get to know about it is what you see on the news,” he says.

Others say Nuss’ military background is evident on a daily basis.

“Lawton is a Marine. And he’s always been a Marine. He just has that very dignified, caring but very much in control at all times. His military background is evident in his personality or maybe he went toward the military because it fit his personality. He’s always been a measured leader,” says Kansas Court of Appeals Judge Karen Arnold-Burger. “He does a lot of listening – more listening than talking.”

When Nuss needed to cut $8 million from the judicial branch’s budget several years ago, he thought furloughs would be the right approach. The Legislature balked at the plan, so he appointed an advisory committee to get more opinions. It included judiciary staff, ordinary Kansans and – taking a page from Lincoln’s approach – the committee included some lawmakers like DeGraaf  who had voiced their displeasure with Nuss.

“He was certainly taking a risk, throwing open the court,” Arnold-Burger says. “Perhaps we could have come up with the recommendation that furloughing people was the worst thing we could possibly do and that could feed into his detractors.”

At an initial brainstorming session, one lawmaker proposed eliminating some Supreme Court justices to save cash.

“It was obvious where some of their positions were to begin with,” Arnold-Burger says. “But by the end we were able to come up with some agreements really easy as to what was realistic.”

Furloughs ended up a major part of the equation.





‘Chairman’ of the Board

One sign of the Kansas Supreme Court’s relatively low public profile is that some voters skip responding to the retention questions about justices and judges even as they weigh in on other races. For instance, in the 2014 general election, more than 100,000 fewer voters cast ballots in Justice Eric S. Rosen’s retention election than voted in that year’s hotly contested gubernatorial race. Rosen was retained by a margin of about 41,000 votes.

Under Nuss’ administration, the court has worked to change how it interacts with the public. Nuss says it’s his job to make sure Kansans better understand the judiciary’s work.

The Supreme Court has also gone on the road to  hear oral arguments around the state. The public can listen to and see the court in action and learn more about the process. Attendance has been strong. Hundreds have turned out in places like Hays, Kansas City and Garden City.

Nuss has heard comments like: “Now I see how this operates” and “I see the protocol that (the court) follows.” In March, the court met one night in the auditorium at Topeka High School so those who work during the day (including lawmakers) could attend.

The court has also tried to make its workings more understandable to the public. Instead of handing out a one-page docket summary to spectators, the court distributes a small booklet at its traveling sessions that details everything from what an oral argument is to who sits where and how the judicial branch spends its money.

The sessions prompted something no one expected. The public organically started asking astonished Supreme Court justices to sign the booklets as they shook hands during receptions held after oral arguments. It’s happened several times across the state.

Despite that, being the chief justice isn’t exactly a glamorous job. Nuss spends about 80 percent of his time on administrative matters. Other chief justices report a similar workload. He occasionally pops in unannounced to see judges in action and to check in on the 31 district courts that provide day-to-day justice throughout the state. He doesn’t remain anonymous for long. Nuss’ trademark mustache stands out in any crowded courthouse.

Nuss went straight to the court from private practice. Since then he’s helped put the judicial branch online. When he arrived, the court was still paper-based. He regularly had used computers at his private firm and was aware of the benefits of digitization.

As chief justice, Nuss is the face of the court, but he isn’t the dictator, he says.

“We operate as a seven-member board of directors basically. Yes, I’m the chairman, but everybody has an equal voice,” he says. “I could not do what I do without my colleagues. I’ve just been very blessed to have them.”

He generally works a 70-hour work week tending to matters of the court, but when he does have free time he spends it with his wife or outdoors.

“Whether I’m carrying a fly rod or whether I’m carrying a bow and arrow or a rifle, I just like being outdoors like that. And then when I have the time, I like to go pistol shooting,” he says.

His appreciation for firearms came largely from his family including his grandfather, who raised cattle near Dodge City.

His resume includes selection in the Henry Toll Fellowship program and a stint as a judge for the national cowboy poetry contest. If you ask, he’ll also tell you he milked cows and took odd jobs on a farm as a young man. “I’m not too good to put up hay or shovel manure,” he says.

 

Propriety and an Admonishment

As a justice, Nuss says he has gone out of his way to avoid the perception that he might be biased on cases. He doesn’t meet attorneys for a round of golf. If an attorney corners him to talk, Nuss wants it to be in a public place with others around to hear. He avoids cocktail party conversation about subjects that could come before the court. Mostly he avoids places where those types of conversations flourish. It rules out a lot of avenues for friends.

Despite those efforts, a brief conversation Nuss had with two lawmakers 10 years ago left a mark on his record. It’s an incident that added fuel to the fire of distrust some lawmakers had in the court, divisions that are once again raw.

The Commission on Judicial Qualifications, which upholds ethical standards for judges, formally admonished Nuss – a first for a Kansas justice – in 2006 for violating the judicial code of conduct. It determined that Nuss had met for lunch with two Republican senators, including a longtime friend. The commission ruled Nuss had a side conversation that was “less than five minutes” about school finance.





“I was trying to better understand some financial numbers printed in the Topeka newspaper and asked two senators for an explanation,”  Nuss says. “I later realized this might give the appearance of impropriety, so I self-reported the conversation to the Judicial Qualifications Commission for its review.”

Nuss apologized and recused himself from the case. He was retained by voters in 2010, but the admonishment had an immediate impact on him.

“It made me keenly aware that as a public figure any interaction I have with people – no matter how innocuous — could be perceived as improper,”he says. “I’m more mindful as a result.”

Some conservatives at the time suggested that Nuss escaped with little more than a slap on the wrist. But former GOP gubernatorial candidate Jim Barnett, who as a state senator helped bring Nuss’ conversations with the two senators to light because of its potential effect on school-funding deliberations, says he considers the admonishment a settled matter.

“I can say that no one is perfect in life, me included,” Barnett says. “And if that was the outcome of the judicial qualifications review, then I certainly respected that. And I think at the time others accepted that for the most part. And it’s a matter of the past.”

But the event was significant enough that it might still be producing ripples a decade later.

Senate Vice President Jeff King, an Independence Republican and the chairman of the Senate Judiciary Committee, wonders if that admonishment has affected how Nuss approaches the Legislature, making it more difficult for him to work across factions.

“I think only Justice Nuss knows how that has impacted his dealing with the Legislature,” King says. “I know he has been the least hands-on chief justice in dealing with the Legislature in recent memory. He has delegated that responsibility to others and really shied away from a personal interaction from the Legislature whenever possible.”

King says previous chief justices sat down for lunch with legislators at least once a year.

“I would relish more direct contact between justices, especially between the chief justice and members of the Legislature,” King says.

The connections might, he says, alleviate conflicts based on misunderstandings.

“You’re going to have conflicts based on differences of opinion; that’s inevitable. But it’s conflicts based on misunderstanding that I think we have the greatest duty to avoid,” King says.

The current political and media climate presents a temptation, he says, to see everything in black and white, good versus evil. But it’s not that simple. And conflicts between the branches have been around since the founding fathers created three equal branches of government.

“Are there times I read Supreme Court opinions and they make me angry? Yeah. Are there times I express my disagreement with an opinion? Sure. Are there times judges express disagreements with bills we vote on? Of course. That’s part of the process, and that doesn’t weaken the process if we handle it correctly,” King says. “I believe it makes it stronger.”

More communication, he believes, might ensure that disagreements are productive.

“If there are ways in the state that we could tone down the rhetoric and turn down the temperature – a little bit of the ‘us versus them,’ ‘courts versus Legislature’ dynamic – I think it would be to all of our benefit,” he says. “We’re going to disagree, and sometimes we’re going to get upset during those disagreements.”

 

Real-World Consequences

Divisions, though, run deep. For several decades, there’s been a sharp judicial divide over the proper ways to interpret constitutions, especially at the federal level. Are constitutions fixed documents to be interpreted based on the time they were enacted, or do their meanings evolve over time with changes to society and the culture? How much deference should courts show to popularly elected officials such as legislatures or to the decisions of lower courts?

In rulings totaling dozens – and sometimes even hundreds – of pages, justices and judges apply legal principles and previous decisions in sophisticated ways that may be hard to explain in a simple soundbite. Opinions express views about how the law applies to the circumstances of a particular case, not public sentiment or personal opinions.

Yet it’s safe to say judges aren’t robots either. And their rulings have real-world implications that profoundly affect and stir deep emotions in others.

For instance, ordering a re-sentencing in a death penalty case, as with the Carr brothers, reopened wounds for friends and family members of the victims, who faced the prospect of a new sentencing hearing more than a decade after the murders. Declaring a school funding law unconstitutional meant legislators must again make difficult decisions about balancing competing interests and put together a political coalition to pass a new law that aims to be constitutional even as they stand for re-election. Settling a legal dispute creates ripple effects that go well beyond the scope of the case itself (and cases themselves live on to affect legal decisions in the future).

Justices in their writings and public statements express understanding of that tension but also maintain they must focus on the law. Nuss, for instance, talks about the difficulty of dealing with cases involving the sexual abuse of children. But that may be of little solace when a case involves your friends or family. 

When the court conducted its evening session at Topeka High School, a group called Kansans for Justice responded with a written statement. The group is made up of relatives and friends of the Carr brothers’ victims and was active in seeking the ouster of two justices in 2014. The group’s website is encouraging a “no” vote again this November.

Spokeswoman Amy James, who dated Brad Heyka, one of the five people the Carr brothers murdered in 2000, applauded the justices for holding an evening session outside the Kansas Judicial Center, where it normally hears cases during the day, and exposing more Kansans to their process.

But she also noted an invitation from Nuss that encouraged Topekans and those living nearby to attend the special session. In it, Nuss described how the court must decide cases based on the U.S. and Kansas constitutions. “However, in five different death penalty cases, they did not follow Kansas law and instead were reversed by the U.S. Supreme Court each time,” James said in the statement. “This shows error in the Kansas Supreme Court decisions repeatedly.”

She also mentioned that the public session was a timely occurrence for an election year in which Nuss and three other justices who ruled in the Carr brothers death penalty case were up for retention. “We urge the justices to stay after the event and talk with the public directly, answer questions, and let everyone get to know them better.”



  • Rep. Nancy Lusk, an Overland Park Democrat, says the Pledge of Allegiance prior to a debate over changing how Kansas Supreme Court justices are selected; Gov. Sam Brownback has been a court critic.


The People’s Will?

The governor and Legislature have also made their displeasure with the court quite clear at times. With justices present during one of his State of the State addresses, Brownback argued forcefully that the Kansas Constitution empowers the Legislature to determine how schools are financed.

And as he began his term in his office, House Speaker Ray Merrick, a Stilwell Republican, turned down a request from Nuss to address the 2013 Legislature on the State of the Judiciary, saying that the House’s time could be better spent on other matters. While such speeches hadn’t always been an annual occurrence, it hasn’t been out of the ordinary for chief justices to be granted permission to address joint sessions of the Legislature over the past 40 years.

In recent years, Nuss has delivered his report from the court’s chambers. Yet during this year’s speech, the House speaker scheduled a heated debate on changing how justices are selected that overlapped the chief justice’s remarks.

The current method of filling Supreme Court vacancies was enshrined in the constitution by Kansas voters in 1958 following a scandal in which a lame duck governor worked with others to manipulate the previous political appointment system so he could become a court justice. The present system requires that the governor appoint one of three finalists screened by a nonpartisan nominating committee.

But what Kansans adopted 58 years ago has come under withering attack by critics, even as defenders of the system say it produces the most competent and best qualified nominees.

“Well, does it?” state Rep. John Rubin, a Shawnee Republican, asked during the House debate on judicial selection. “In recent weeks the United States Supreme Court in an 8 to 1 decision ruled that the Kansas Supreme Court completely misconstrued the Constitution of the United States in its decision to throw out the death sentences of the Carr brothers.”

In Kansas, just about every high-profile case or controversial decision is at risk of becoming a political football. The judiciary is the last branch of government not controlled by conservative Republicans. Only one of the current justices was appointed by Brownback, the most conservative Kansas governor in decades. The others were appointed by former Gov. Bill Graves, a Republican, and former Gov. Kathleen Sebelius, a Democrat, who had very different views about what the state’s priorities should be than the current administration.

A view that the composition of the state Supreme Court is a holdover from an earlier time in Kansas politics also seems to be driving the divide between the court and the other branches. Legislators have put the judicial branch’s funding in doubt, tried to change the selection method, suggested lowering the mandatory retirement age and proposed allowing justices to be impeached for such things as “attempting to subvert fundamental laws and introduce arbitrary power.”

This year, an already tense situation escalated when the justices ruled that the state’s block grant school funding plan, passed last year at Brownback’s behest, was unconstitutional.

Article VI of the Kansas Constitution requires the Legislature to “make a suitable provision for finance” of public education. Prior decisions have mandated that the funding provision must be equitable across the state, so poorer districts receive similar levels of funding. The unanimous opinion included a clear deadline: Fix the problem, “or the schools in Kansas will be unable to operate beyond June 30.”

Two justices, Beier and Caleb Stegall, did not participate in the ruling and District Judge David L. Stutzman and Senior Judge Michael J. Malone were assigned to fill in. The court gave the Legislature options that included creating a different plan or returning to the previous formula.

Response was swift yet again.

“Kansas has among the best schools in the nation and an activist Kansas Supreme Court is threatening to shut them down,” Brownback said in a statement.

Some lawmakers cast the court as putting the Legislature in a hostage situation. Sen. Jeff Melcher, a Leawood Republican, was quoted by the Associated Press as saying, “It’s kind of one of those things, `Give us the money or the kid gets it.’” The Senate’s budget chairman, Andover Republican Ty Masterson, later said the “courts have a gun to the heads of the schoolchildren on closing the schools,” according to The Kansas City Star.

Nuss is adamant that although even judges have their own personal views, he didn’t sign up to extoll his personal ideology in his rulings.

“It’s important for me to remember that although I have my private personal opinions about certain issues, that it’s not my private opinion that counts. It’s what the people’s constitution says.

And although politicians might want me to come out a certain way on a decision, that’s not my job. That’s not being true to the people. Special interests might want me to come out a certain way. That’s not my responsibility to them. It’s to the people,” he says.

“And if I don’t do that, then who is going to make sure that the people’s will in the constitution is upheld?”

But different judges, with different backgrounds, viewpoints and judicial philosophies, can end up in different places on what the law really calls for. Hence the ongoing debate over whether the Republican-controlled U.S. Senate should vote on Democratic President Barack Obama’s Supreme Court nominee in an election year, an appointment that could significantly shift the ideological balance of the court to the left.

The removal of any justice from office in this November’s retention election would be unprecedented, and the removal of all four non-Brownback appointees would give the governor the opportunity to appoint a majority of the court for his final two years in office.

As a result, Kansas is expected to join a growing number of states where interest groups launch fierce election battles over justices. The phenomenon is new enough that Kansas’ sunshine laws are not set up to address it. The state’s campaign finance laws do not govern appellate court campaigns. It means Kansans don’t have a right to know which groups back or oppose a judge. And they won’t know if a group were to pour millions of dollars into ousting a judge.

“If they spend tens of thousands of dollars or more than that, we’ll never know who they are, where their money came from and how much they actually spent to either support or oppose,” says Carol Williams, executive director of the Kansas Governmental Ethics Commission. “You’re just never going to know because they’re not required to (report).”

But even when they stand before voters in an election, judges face ethical restrictions that require them to engage the public in very different ways than a politician might. The state’s judicial canons require judges to “act all times in a manner consistent with the independence, integrity and impartiality of the judiciary.”

“Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official,” the canon states. “Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.”

 

“It’s kind of interesting when judges are thrown into controversy like Lawton is; you have to remember why you became a judge and how you want to be known for the work that you do,” Cady says.

 

Nuss says that he won’t personally be soliciting campaign contributions. It would run counter to the career he has spent his life building. However, a former colleague at his Salina law firm, John W. Mize, launched “Friends of Chief Justice Lawton Nuss,” a nonprofit corporation registered with the Kansas secretary of state that can raise funds on his behalf.

Such efforts are becoming common this year. At least three other justices up for retention have similar corporations working in their names, with Beier and Stegall playing direct roles in the incorporation of the groups behind their retention efforts. Another group, Kansans for Fair Courts, is organizing a broader campaign to accept contributions with a goal of maintaining fair and impartial courts. The group was started by the Kansas Values Institute, a nonprofit issue advocacy group operated by moderate Republicans and Democrats opposed to Brownback’s governing agenda. 

Iowa Supreme Court Justice Mark Cady knows about the quandary that judges in Nuss’ position face. Iowa voters ousted three state Supreme Court justices in retention elections after the court ruled in 2009 that the state’s law barring same-sex marriage was unconstitutional. But tempers quickly settled.

“It’s kind of interesting when judges are thrown into controversy like Lawton is; you have to remember why you became a judge and how you want to be known for the work that you do,” Cady says. “And I think Lawton understands that it’s very, very important for him to maintain fair and impartial courts and for him to do anything that would compromise that would be against the very principles that he has been building throughout his career.”

But standing on principle doesn’t come without risk for Nuss. It certainly doesn’t mean that everyone is going to agree with his principles or how he has carried them out. The ultimate ruling on whether Nuss and his colleagues have done their due in upholding the people’s document, the Kansas Constitution, will rest in the hands of the people themselves this November.





This article was originally published in the Summer 2016 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. For a subscription to the printed edition of The Journal, visit klcjr.nl/amzsubscribe

LinkedIn
Twitter
Facebook

Social media & sharing icons powered by UltimatelySocial