Voters Will Have to Protect KS Court From ‘Unfair Attacks’: Editorial

There are increasing prospects for a highly politicized retention (up-or-down) election of justices on the Kansas Supreme Court this fall, a Kansas City Star editorial warns. It adds, “Voters will have to protect the Kansas Supreme Court from unfair attacks on its independence.”

While the court has sparked the ire of numerous legislators and Gov. Sam Brownback with its orders for greater spending on public education, it actually “is acting impartially and carefully on the complicated school funding issue — as Kansans expect and deserve,” the editorial says.

Four of the court’s seven justices, out of five who will be up for retention, are expected to be targeted for removal by critics who are unhappy with their rulings. Supporters of the justices are beginning to speak out. The editorial also notes that legislators are working to advance a measure that would expand the legal grounds for impeaching Kansas justices, a bill that Justice at Stake has called unconstitutional (see Gavel Grab).

Judicial Independence Issue Raised in Supreme Court Arguments

When the Supreme Court heard arguments on Wednesday in a case involving foreign terrorism and Americans’ damage claims, Chief Justice John Roberts cautioned that questions of judicial independence from congressional meddling were at stake.

The case involves efforts by victims and their families who sued Iran to recover large sums from terrorist actions backed by Iran. During the arguments, according to The Washington Post, Congress effectively “was on trial, for allegedly overstepping its powers by passing a law that essentially guaranteed a legal victory for the victims.”

“There are places in the world where courts function just the way our courts do, except every now and then, when there’s a case that the strongman who runs the country is interested in . . . he picks up the phone and he tells the court: You decide this case this way,” Roberts told an attorney for the victims. “I’m not sure I see what the difference is here.”

But questions by some other justices signaled a different view, that Congress acted within its power, and the victims could still win with their argument, the newspaper said.

Opinion: Will Kansas Tradition of Judicial Independence Survive?

When five Kansas Supreme Court justices stand for retention (up-or-down) election in November, it will occur against a backdrop of attacks on fair and impartial courts by legislators and the executive branch, Davis Merritt observes in a Wichita Eagle op-ed.

There could be dire results, he warns: “2016 could be the year that Kansas’ tradition of judicial independence dies, a victim of excessive political ideology and civic indifference.”

Merritt seeks to roust Kansans out of any “indifference” by arguing that traditional conservatives ought to be supporting judicial independence, not bashing it. “But today’s slash-and-burn Kansas conservatives value slogans such as ‘unelected, activist judges’ and ‘judicial overreach’ over true personal liberties. Their legislators seem more interested in preserving their prerogatives than protecting the republic, and their executive branch seems more interested in imposing a narrow ideology than supporting individual rights.” (more…)

Effort to Recall Trial Judge Fails in Southern California

Organizers of an effort to recall a southern California judge, whose sentencing of a pedophile stirred controversy, failed to collect the required number of signatures by Dec. 31 to get the recall onto a ballot in June.

The Orange County Register reported that not enough signatures were gathered in the effort to recall Superior Court Judge Marc Kelly. He had criticized the recall petition as “an attack on judicial independence” (see Gavel Grab).

The judge said in a statement earlier this year:

“I took an oath to uphold the Constitution, not to appease politicians. A judge who doesn’t follow the Constitution today won’t follow it tomorrow when your rights are at stake.

“Don’t let politicians intimidate judges. Keep politics out of courtrooms.”

Study: Loyalty of Justices to Appointing President is Indicated

washington-supreme-court-building-washington-d-c-dc169A study by two U.S. Supreme Court experts finds that justices vote on decisions in favor of the president who appointed them more often than with subsequent presidents, even if the latter chief executives belong to the same party as their appointing president.

In the Washington Post, reporter Robert Barnes summarizes the findings by law professors Eric Posner of the University of Chicago and Lee Epstein of Washington University in St. Louis.

Barnes notes, “Judicial independence is a mainstay of American democracy, but politics plays a vital role in how a justice gets his or her job. Presidents look for those with similar views and values. A president, after all, can serve no more than eight years, while his nominees to the court stay for decades.”

Commentary: Judicial Term Limits Idea ‘Smells of Retaliation’

The Florida legislature has a documented history of trying to bash the courts for decisions it doesn’t like, and that explains the genesis of a new proposal for judicial term limits, columnist Paula Dockery writes at

A former Republican state legislator, Dockery says the proposal for limits on the terms of state Supreme Court justices and appeals court judges “smells of retaliation” given legislators’ unhappiness with the high court’s ruling on a redistricting plan drawn in the legislature (see Gavel Grab). “We lose good, experienced judges and justices arbitrarily” with such term limits, she says. (more…)

Editorial: Campaign Spending Undermines Judicial Independence

A recent editorial in the Charlotte Observer raised concern over the effect that the rising cost of winning judicial elections has on the independence of the judiciary.

Edward Hinson, author of the article and a lawyer who has been practicing in North Carolina for over 30 years and served on the state’s Judicial Standards Commission, argues that outside spending undermines judges’ ability to be independent and non-partisan and puts many in an ethical quandary. “Since the U.S. Supreme Court has lifted most restrictions on corporate campaign spending, the specter of a judiciary brought to you – or, some fear, bought for you – by corporate money cannot be dismissed.”

To illustrate this argument, the article goes on to highlight individual donors who give large sums of money to elect judges to courts in which they have cases pending. “A jury there had awarded $50 million in damages to plaintiffs suing Massey Coal Co. Massey appealed to the West Virginia Supreme Court. While the case was pending, Massey’s chairman poured $3 million into a campaign to defeat one of the justices seeking reelection. The new justice, elected with the $3 million boost, declined to withdraw from hearing the appeal. He joined the 3-2 majority in a vote to reverse the verdict as Massey wanted. The U.S. Supreme Court recognized the injustice and reversed the decision, citing a “constitutionally unacceptable appearance of impropriety.” But it did so without drawing any clear boundary.”

“To change to an appointive system would require amending our state Constitution, but the effort would be worthwhile. What’s at stake is nothing less than an independent, honorable system of justice.”

N.C. Journalist Worries About Eroding Trust in Fair Courts

Appointed to a new commission aiming to improve North Carolina’s judicial system, a journalist says he hopes that its work will help build public trust in the independence and impartiality of our courts.

Doug Clark of the Greensboro News & Record says in a column that he’s especially concerned about trust in the state courts and in helping educate the public to better understand how they work:

“In recent court races, we’ve seen outside groups with partisan interests spend millions of dollars to promote or attack judicial candidates. Our legislature ended public funding for appellate campaigns, which had been successfully adopted after the 1996 report and relieved candidates of having to raise so much money. Now lawmakers aim to return partisan labels to the ballot for some judicial races. These aren’t steps that instill public trust in the impartiality of our justice system.

“I’m also concerned about a lack of transparency and access to information in the justice system, as well as the public’s lack of understanding about the work of judges and the courts.”


JAS Cited in Column on States Pressuring Courts

justice-scalesA column by analyst Lyle Denniston in the Constitution Daily takes Justice at Stake Interim Executive Director Liz Seaton’s recent piece for Talking Points Memo (see Gavel Grab) as a jumping-off point, and asks, “Do state legislatures have the power to shut down state courts?” Seaton’s piece highlighted recent events in Kansas, where legislation was passed that put the entire judicial system budget at risk.  In that piece, Seaton wrote that “an axe is hanging over funding of the entire state court system because elected officials chose to make political pawns of state courts.”

In his analysis, Denniston notes “the actions of a growing number of state legislatures to rein in what some lawmakers apparently believe are courts that exercise too much power and are too resistant to what legislators want from them.”  Examining the situation in Kansas, he writes that “when the legislature uses its budget powers in a way that definitely seems to be controlling how judges rule on legal questions, that stirs up the separation-of-powers controversy to a pitched level.”

“The drama in Kansas has now mushroomed into a fundamental test of the nature of state government, at least when two of the branches are so at odds that a constitutional crisis develops, ” Denniston concludes.  He adds that it will likely fall to the very Kansas state officials who are enmeshed in the controversy, to untangle the legal mess that has ensued.

Petition Process for Judicial Recall Approved in California

The Registrar of Voters in Orange County, Ca. has given a go-ahead for petitioners to start gathering signatures in their effort to recall a judge whose sentencing of a pedophile stirred controversy. The judge has called the recall petition “an attack on judicial independence.”

The Orange County Register reported the latest developments in the effort to recall Superior Court Judge Marc Kelly.  The deadline for collecting signatures is Dec. 31, and the recall campaign chairman said a minimum of 90,829 verifiable signatures will be required in order to get a recall election on the June 2016 ballot.

To learn background about the sentencing and controversy, see Gavel Grab.