Ethics Require Two Recusals In School Finance Lawsuit

Thank you to Karl Peterjohn for your insight into the ethical mess that is our Kansas Supreme Court.

Ethics Require Two Recusals In School Finance Lawsuit
By Karl Peterjohn, Executive Director Kansas Taxpayers Network

Would you want to go to court and face a judge who used to serve as legal counsel for your courtroom opponent? That is one of the ethics challenges facing the state in trying to fight off the $1 billion school finance lawsuit in front of the Kansas Supreme Court. This court heard oral arguments again May 11 in this case. There are 15 school districts spending millions of dollars promoting this lengthy lawsuit against the state and its taxpayers.

In addition to this ethical challenge is the fact that the governor’s chief of staff is married to another judge on the Kansas Supreme Court. Would you like to go to court after being sued and face a judge whose spouse is the chief of staff to the person who is leading the challenge against you?

Governor Sebelius has been vocal in blasting the legislature’s very expensive increase of $140 million in state spending for public schools during this year’s legislative session. Sebelius said this massive spending hike was inadequate.

The governor did play Hamlet by not signing or vetoing the school finance bill into law and sending it to the Kansas Supreme Court. Governor Sebelius issued a news release blasting the legislature for being excessively stingy in raising spending for public schools and joined the 15 school districts in advocating higher taxes and spending.

The irony is the fact that the legislature’s spending increase was the largest annual increase during the Sebelius administration. Other legislators said that the $140 million increase was the largest this century. This was certainly one of the largest spending hikes since the current formula was created in 1992.

If you were being sued, and as a taxpayer you are, would you like to face Justice Lawton Nuss, who used to represent your legal challenger, and Justice Don Allegrucci, whose wife is the governor’s chief of staff in this $1 billion case being heard in the Kansas Supreme Court? Nuss was in the law firm that represents the lead plaintiff, the Salina public school district, until he joined the court in October 2002.

Since Justice Gernon’s April death there are now only six members of this court. Two of these judges need to recuse themselves for ethics problems unless we want Kansas legal ethics to become an oxymoron.

School district attorney Alan Rupe has criticized these ethical issues as being “ridiculous.” He has also publicly discussed the fact that this lawsuit involves him suing his ex-wife Carol Rupe who is one of the members of the state board of education. Litigation involving ex-spouses, former law firms, and high level state colleagues is not the way to resolve important public policy issues like Kansas school finance.

The average Kansan is not familiar with the judicial canon that says, “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment.” This second canon also says that judges shall, “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The average Kansan does know right from wrong and having judges with ties to one side of a lawsuit is an insult to fairness and will lead to a tainted decision if these judges participate. In fact, the court’s January 3, 2005 is already tainted by these two judges’ participation in that preliminary decision in the school finance lawsuit.

The school districts are now using lawsuits to try and raise taxes instead of going through the legislature to raise taxes like everyone else. This has created the odious position that the taxpayer funded school districts are using tax funds to sue the state that is using tax funds to defend itself. The only guarantee in this case is that taxpayers will be the loser. If the judges who are not in compliance with their own judicial ethics rules continue in this case, the result will be a travesty of justice and a black eye for the entire legal profession in this state.


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