Kansas Supreme Court Justice Nancy Moritz, nominated by President Obama for a seat on the Tenth U.S. Circuit Court of Appeals, was well-received at a U.S. Senate Judiciary Committee hearing recently and could ultimately win Senate confirmation, the Topeka Capital-Journal reported.
While Senate Republicans have resisted some of Obama’s judicial nominations, Justice Moritz has support from Sen. Jerry Moran, a Kansas Republican. That may help advance her nomination, law professor Carl Tobias of the University of Richmond told the Kansas newspaper. Moran made a favorable statement about Justice Moritz in introducing her to the Senate panel, according to a Moran press release.
If the Senate confirms Justice Moritz, Kansas Gov. Sam Brownback would have his first opportunity to fill a vacancy on the state Supreme Court. Brownback and allies have advocated dismantling an existing merit selection system for choosing state Supreme Court justices, similar to action taken by the legislature this year to scrap merit selection for Kansas Court of Appeals judges.
The Wichita Eagle reports that recent remarks by Kansas Governor Sam Brownback put the state’s Supreme Court on notice that its future could hinge on a school-funding suit. The court is set to rule on an earlier decision by a three-judge panel, which found that Kansas is underfunding its public schools. At an appearance in Wichita, Brownback and state Senate President Susan Wagle suggested that if the court rules Kansas must increase school funds, legislators would react by reexamining the system for selecting the court’s justices.
Earlier this year, legislators successfully pushed to alter the process for selecting state Court of Appeals judges, changing it from a merit selection process to a system of direct gubernatorial nomination. Brownback and allies in the legislature have indicated that they would favor a similar switch for the Supreme Court. Changing the Supreme Court selection process would be more complicated in that it would require amending the state constitution, which requires a two-thirds majority vote in both houses of the legislature and approval by state voters.
A Justice at Stake poll commissioned in January found that 61 percent of Kansas voters oppose changing the constitution to alter the way judges are selected (see Gavel Grab). Although hearings were held on the proposed change in early 2013, legislators failed to garner enough support to move the amendment process forward.
If the Kansas Supreme Court tells legislators to carry out their constitutional duty and provide greater funding for K-12 education (see Gavel Grab for background), and the legislature refuses, it could be a recipe for “disaster,” a Wichita Eagle editorial warns.
A potential showdown also has implications for defenders of fair and impartial courts, according to the editorial. This year, the Kansas legislature revised the way state Court of Appeals judges are chosen to give more power to the governor and to require state Senate confirmation; a similar effort to abandon a merit-based selection process for the state Supreme Court is expected next year.
“Imagine Gov. Sam Brownback and legislative leaders denouncing and then defying the court, and further undermining its authority with legislation to change how justices are chosen, when they must retire and how much say courts have over school finance and other issues,” the editorial says.
This and other implications of a showdown — including a possible school shutdown — “would be a disaster for Kansas and potentially Brownback, who is up for re-election next year,” it adds.
With the possibility of a constitutional showdown ahead in Kansas over public education funding, a Hays Daily News editorial anticipates the worst. If the Kansas Supreme Court tells legislators to carry out their constitutional duty, it simply will be doing its job, the editorial states.
Here’s the background: If the legislature is ordered by the court to spend more on public education, then the legislature might not comply — as it did eight years ago — and might resist the court instead, the Kansas City Star reported earlier this week.
“I don’t see the Legislature right now, with this makeup, going along with what the courts say,” said House Speaker Ray Merrick. “But I could be surprised.”
In oral arguments this week, the high court was asked to decide whether the legislature has violated its constitutional duty to appropriate a “suitable” amount for public schools. According to the Hays Daily News editorial, the legislature set a base aid per pupil funding level in compliance with a 2005 state Supreme Court order, but balked at actually paying out the full amount. Read more
As the Kansas Supreme Court prepares to hear oral arguments next week and then decide a hot public school funding case, it appears to some that a political cloud is hanging over the court.
That’s the thrust of a Lawrence Journal-World article that is headlined, “School funding advocates concerned politics may impact finance ruling.” The Supreme Court is being asked to increase state funding for public schools — it ordered an increase in 2005 and 2006 — and this time around, advocates for greater funding fear that efforts by Republicans to change the way Supreme Court justices are selected, and do their job, could cause the justices to be looking over their shoulders.
Kathy Cook, executive director of Kansas Families for Education, and some other advocates fear that efforts to change judicial selection could result in politicized courts and different decisions about school funding. ”Most of the time, when we have had an increase in school funding, it has come at the direction of the court,” she said. “We don’t seem to have a Legislature that funds schools at an adequate level. We need that system to be untouched by politics.” Read more
The timing of the swearing-in for a new Kansas Court of Appeals judge is being questioned. A leading Democrat is asking whether the installation of Caleb Stegall (photo) has been set for Jan. 3 so that Stegall would face a retention (up-or-down) vote for a new term in 2016, instead of November 2014.
According to an Associated Press article, a new judge stands for retention when voters first go to the polls in a general election after the judge has served a year on the bench. Stegall, who is Brownback’s general counsel, was confirmed early this month by the state Senate under a new judicial selection law that dismantled a merit-selection process relying on a judicial vetting commission.
Court officials said Stegall’s swearing-in date was governed by budget constraints and office space. Given the installation date, Stegall would not face a retention vote until November 2016.
“Is it possible that what they’re trying to do is to distance themselves from the controversial nature of the appointment itself?” state Senate Minority Leader Anthony Hensley told the Associated Press. “That’s exactly what it suggests to me.” Read more
Kansas Supreme Court Chief Justice Lawton Nuss said state courts may be forced to close for seven weeks next year under the budget for the judiciary that the legislature approved this year. “This is a terrible prospect to consider,” he said.
The state’s top judge said a 10-member advisory committee will study the implications if the legislature does not increase court funding, according to a Lawrence Journal-World article.
In order to avoid furloughs for employees, the state courts need $8.25 million more during the next fiscal year, he said, according to the Associated Press. Overall, $127 million was approved for the judicial branch for this fiscal year, and almost $128 million for the next fiscal year. For the previous fiscal year, the budget was approaching $132 million. Read more
Kansas Gov. Sam Brownback told members of the Federalist Society that he would support a similar change in judicial selection for the state Supreme Court as the legislature enacted this year for the Court of Appeals, by adopting a federal-style model.
According to the Associated Press, Brownback hasn’t made up his mind whether to push for a new selection method when he delivers his State of the Union address, and he said he is open to not only a federal-style model but also direct election of Supreme Court justices. Either would scuttle the existing merit-based system used to select the high court’s judges.
At the Federalist Society event, some critics of the new selection method for Court of Appeals judges spoke out. “I think some of us are concerned that by injecting politics into the selection of our judiciary we undermine the institutional integrity of that institution,” Tristan Duncan, a constitutional law attorney, told Brownback. Read more
Kansas Senate Minority Leader Anthony Hensley has asked the state’s judicial disciplinary administrator to explore whether or not Caleb Stegall, the recently confirmed nominee for the Kansas Court of Appeals, can remain the governor’s general counsel until he is sworn in this coming January. Stan Hazlett, the judicial branch’s disciplinary administrator, has yet to issue a response to these inquiries.
Hensley was quoted in the Topeka Capital-Journal saying “To me, there is an inherent conflict of interest… I think it’s a legitimate question to ask.” Washburn University and University of Kansas law professors who were cited in the same piece said they are unaware of provisions in the state’s ethics code and statute that could restrict Stegall from continuing to lead the governor’s legal department prior to being sworn in.
A spokeswoman from Governor Brownback’s office declined to give a comment on potential complications of Stegall continuing his role as general counsel for Brownback over the next four months. The discussion of Stegall’s role comes after his controversial appointment process, which followed a change in the judicial selection process for the Kansas Court of Appeals. Hensley had previously led an unsuccessful challenge to the law changing the process. A number of Kansas-based advocacy organizations also raised concerns about the new selection processes. A Justice at Stake press release supporting Kansans demanding disclosure of judicial applicants can be read here.
Kansas state Rep. Lance Kinzer, chairman of the House Judiciary Committee, is proposing legislation to lower the mandated retirement age of appellate judges from 75 to 65. That would be the lowest retirement age in the nation, according to Huffington Post.
Bill Raftery of the National Center for State Courts told the publication that the proposal runs counter to a national trend in favor of eliminating judicial retirement ages or raising them. The National Center is a JAS partner group. You can learn more about national trends from this earlier Gavel Grab post.
State Rep. Barbara Bollier, a Kansas Republican who opposes the legislation, said, ”It is coming from the ability of the governor to appoint people. He wants to appoint more judges. That is my opinion.”
Huffington Post reporter John Celock described the proposal as “one of a series of measures that conservative Republicans have pushed to gain greater power over appellate courts.” This year, the Republican-controlled legislature, teaming with Republican Gov. Sam Brownback, adopted a new, Washington-style selection law for state Court of Appeals judges that eliminates a successful and popular merit-based selection system. Read more