Tag Archives: Kansas state government

Articles about Kansas, its government, and public policy in Kansas.

VIDEO: KPERS payments and Kansas schools

There is a claim that a recent change in the handling of KPERS payments falsely inflates school spending. The Kansas State Department of Education says otherwise. View below, or click here to view at YouTube.

Click here for more about this topic.

GetTheFactsKansas launched

From Kansas Policy Institute and the Kansas Chamber of Commerce, a new website with facts about the Kansas budget, economy, and schools.

GetTheFactsKansas.com aims to provide Kansans with factual information about our state. Sometimes this is in short supply, so this effort is welcome.

get-the-facts-kansas-logoAs an example, when explaining school spending, the site notes: “At $13,124 per-pupil, 2015 marked the third consecutive year of record-setting funding according to the Kansas Department of Education (KSDE). And if the Department’s estimates hold, another new record will be set when the 2016 final results are reported. Record funding is not the result of accounting changes; emails from KSDE confirm that no accounting changes impacted state or district funding totals for more than ten years. There was a correction effective in 2015 when the state-mandated 20 mills of property tax began being properly recorded as State Aid instead of Local Aid, but there would have been an increase in State Aid without that change.”

Information like this rebuts two arguments that Kansas progressives use. First, that the increase in school spending is due to a recent change in the way KPERS payments are reported. But, there has been no change in ten years. Second, that the shift in the reporting of local property taxes is used to falsely inflate state spending. As KPI notes, even after adjusting for this change, state funding of schools has risen.

Access the website at GetTheFactsKansas.com and follow its Facebook page at Get The Facts Kansas.

Kansas construction employment

Tip to the Wichita Eagle editorial board: When a lobbying group feeds you statistics, try to learn what they really mean.

When investigating the claims of a lobbying group, Kansas Policy Institute found that the statistics — when examined closely — do not support the narrative the group promotes. Unfortunately, the Wichita Eagle editorial board did not examine the group’s claims closely enough to determine their validity.

Kansas Construction Employment, 12-Month Moving Average. Click for larger.
Kansas Construction Employment, 12-Month Moving Average. Click for larger.

At issue is the claim that transfers from the Kansas highway fund have lead to the loss of highway construction jobs. It’s repeated not only by the state’s highway construction lobbyists, but also by others. The statistics that are cited deserve further investigation, which is what KPI did on its article Media and highway contractors mislead again. KPI’s Dave Trabert found:

Had the Eagle bothered to examine Mr. Totten’s claim, they would have learned that only 2 percent of the construction job decline was attributable to highway construction and that the loss of 100 jobs is less than 1 percent of total highway jobs.

In addition to learning that Mr. Totten was grossly exaggerating, they would have learned that employment for construction of new homes and non-residential buildings showed very nice growth and the real problem is in specialty trade contractors for non-highway projects.

Trabert is referring to the Wichita Eagle editorial board citing figures from a self-interested lobbying group — in this case, Bob Totten, executive vice president of the Kansas Contractors Association — without investigating the true nature of the figures.

KDOT spending on major road programs. Click for larger version.
KDOT spending on major road programs. Click for larger version.
I’ve taken the same numbers from the Bureau of Labor Statistics. Because these values are available only in not seasonally adjusted form, I’ve created a chart using the moving average of the past 12 months. A second chart shows the change from the same month of the previous year. The charts confirm what KPI found, which is employment in the “Heavy and Civil” category is not responsible for the decline in Kansas construction jobs. In fact, employment in this category is on an upward trend over the past 18 months. It is employment in the category “Specialty Trade” that has fallen. This isn’t related to highway construction.

This data is available in an interactive visualization which you may access here. For more information on highway spending in Kansas, see Kansas highway spending.

Kansas Construction Employment, Change From Year Before. Click for larger.
Kansas Construction Employment, Change From Year Before. Click for larger.

From Pachyderm: Martin Hawver on Kansas Politics

Voice for Liberty radio logo square 02 155x116From the Wichita Pachyderm Club this week: Martin Hawver briefed members and guests on the state of Kansas politics. Judge Phil Journey provided the introduction. Recorded August 19, 2016.

Hawver is the dean of Kansas Statehouse press corps, having covered the beat longer than any current Statehouse reporter — first for 17 years as a Statehouse reporter for the Topeka Capital-Journal and since 1993 for Hawver’s Capitol Report, for which he is the primary reporter/writer. He also writes a column syndicated to Kansas newspapers, is interviewed about Kansas government and politics on TV and radio shows, and is a speaker for seminars and conventions.

Hawver’s Capitol Report is owned by Martin and his wife Vickie Griffith Hawver, who met and married while both worked at the Topeka Capital-Journal newspaper. Their website is havernews.com.

WichitaLiberty.TV: A variety of topics, with some good news, but a lot of bad news

In this episode of WichitaLiberty.TV: Wichita’s economic development, Sedgwick County spending, editorials ignoring facts, your house numbers, Kansas governors, taxpayer-funded political campaigns, and the nature of economic competition. View below, or click here to view at YouTube. Episode 127, broadcast August 21, 2016.

Kansas tax receipts

Kansas tax receipts by category, presented in an interactive visualization.

The Kansas Division of the Budget publishes monthly statistics regarding tax collections. These figures have been gathered and are presented in an interactive visualization.

Example from the visualization.
Example from the visualization.
For the past two years, individual income tax collections have been relatively flat. There are variations each month, but overall the trend is slightly up. Corporate income tax collections are on a slight downward trajectory.

Retail sales tax and compensating use tax have been rising for two years. A higher sales tax rate took effect on July 1, 2015, with the rate rising from 6.15 percent to 6.50 percent.

Cigarette taxes have risen rapidly since July 2015 when higher tax rates on these products took effect. The same trend is present in the tobacco products tax.

Severance taxes — tax collected on natural gas and oil as it is extracted from the ground — have been on a downward trend as prices for these produces have fallen. This is a sizable tax. In June 2014 collections of this tax were running at about $143 million per year. Two year later the rate is $28 million annually.

Click here to use the visualization.

Source of data is Kansas Division of the Budget.

WichitaLiberty.TV: Gidget Southway, or Danedri Herbert

This week on WichitaLiberty.TV: Danedri Herbert, also known as Gidget Southway, visits Wichita and WichitaLiberty.TV. Her blog is Kansas GOP Insider. This interview was recorded on July 27, 2016. View below, or click here to view at YouTube. Episode 126, broadcast August 7, 2016.

Which Kansas Governor made these proposals?

Cutting spending for higher education, holding K through 12 public school spending steady, sweeping highway money to the general fund, reducing aid to local governments, spending down state reserves, and a huge projected budget gap. Who and when is the following newspaper report referencing?

Under _____ budget for fiscal _____, public schools would continue to receive $3,863 per student in state aid, and higher education would lose only $5 million in general tax dollars, mostly in the central Board of Regents office.

But _____ would take $165 million from highway projects and eliminate $86 million in aid to local governments — on top of the $95 million _____ withheld from highway projects and $48 million _____ kept from cities and counties.

_____ also made a campaign promise to build all projects promised under the state’s 10-year, $13.5 billion transportation program. _____ proposals didn’t say how the Department of Transportation would deal with the loss of funds.

_____ budget also would allow the Kansas Highway Patrol to hire 70 new troopers, give state employees a 1.5 percent pay raise, and prevent the closings of four minimum-security prison units and two inmate boot camps.

Under _____ proposals, total spending in fiscal _____ would decrease about $31 million, or 0.4 percent.

But that figure didn’t convey the seriousness of the state’s budget problems, which some officials have said are the worst since the Great Depression. The gap between expected general tax revenues and spending commitments during the next 18 months is more than $1 billion.

_____ also proposed to help eliminate the gap by spending some $313 million — all but $500,000 — that otherwise would be set aside as emergency cash reserves.

This is coverage from John Hanna of the State of the State Address from Governor Kathleen Sebelius in 2003, where she revealed plans for the fiscal 2004 budget. (Except the blank in “on top of the $95 million _____ withheld from highway projects” refers to her predecessor Bill Graves.) The original article is here.

WichitaLiberty.TV: The State of Kansas

In this episode of WichitaLiberty.TV: Jonathan Williams helps us understand what’s right — and wrong — with Kansas. Williams is Vice President for the Center for State Fiscal Reform at the American Legislative Exchange Council (ALEC). View below, or click here to view at YouTube.

Shownotes

  • American Legislative Exchange Council (ALEC)
  • Rich States, Poor States, ninth edition. This volume holds the most recent state-by-state rankings.
  • Rich States, Poor States, eighth edition. This volume holds Chapter 4, titled “Lessons from Kansas: A Behind the Scenes Look at America’s Most Discussed Tax Reform Effort.”

A National Perspective on Kansas Fiscal Policy

Jonathan Williams, Vice President in charge of the Center for State Fiscal Reform at the American Legislative Exchange Council (ALEC), addressed a luncheon gathering of the Wichita Pachyderm Club on July 22, 2016, presenting “A National Perspective on Kansas Fiscal Policy.” View below, or click here to view at YouTube. Videography by Paul Soutar.

Say no to Kansas taxpayer-funded campaigning

Kansas taxpayers should know their tax dollars are helping staff campaigns for political office.

As reported by the Wichita Eagle, it is perfectly allowable for some Kansas state government employees to work on political campaigns.1

Can you spot the taxpayer-paid state employees on the campaign trail? The Wichita Eagle says there are two. (Click for larger)
Can you spot the taxpayer-paid state employees on the campaign trail? The Wichita Eagle says there are two. (Click for larger)
Not all Kansas state government employees can work on campaigns while being paid by taxpayers. Only personal staff members of elected officials can. But this can be quite a large number of people. The Eagle reports that Governor Sam Brownback has 21 personal staff members.

It’s not only the governor that has taxpayer-paid employees on the campaign trail. The Eagle also reports that a member of Senate President Susan Wagle‘s office has been on the campaign trail.

That senate employee, along with an employee of the governor’s office, were spotted campaigning for Gene Suellentrop. His Facebook page seemed pleased with their participation, again according to Eagle reporting:

Rep. Gene Suellentrop, R-Wichita, who is seeking the vacant seat in Senate District 27, posted a photo of himself and 10 campaign door walkers on Facebook last month with a message saying, “The Suellentrop for Senate crew! Coming soon to your door step.”

The photo, posted on June 14, a Tuesday, includes Ashley Moretti, a member of Brownback’s staff, and Eric Turek, who works for Senate President Susan Wagle, R-Wichita.

“Those two showed up late that afternoon on their own, I have not requested any help from any leadership,” Suellentrop said in an e-mail. “They were sure happy to get into a picture of our winning campaign.”

The first question the taxpayers of Kansas ought to ask is this: If these taxpayer-paid staff members have time to work on political campaigns, who is doing the work of the people of Kansas in their absence? What tasks are postponed so that these staff members can work on campaigns?

The answer to this question, I’m afraid, is that there are too many staff members.

The second question we should ask is this: Why is this practice allowed? There is a ruling from the ethics commission that allows this use of personal staff. Which leads to the third question: Why hasn’t the legislature passed a law to prohibit this practice?

The answer to that last question, I’m afraid, is that the ruling class protects its own. For example, there is an organization known as the National Republican Senatorial Committee. Its job is to re-elect Republican senate incumbents. It doesn’t say this, but that is what it does. This is representative of the attitude of the political class. Once most officeholders have been in office a few years, they comfortably transition to the political class. Thereafter, their most important job is their re-election campaign, followed closely by the campaigns of their cronies.

This is why you see Brownback and Wagle lending taxpayer-funded staff to the Suellentrop campaign. Should he be elected to the Kansas Senate, well, how can’t he be grateful?

Here’s what needs to happen.

First, this process must stop. Even though it is allowable, it is not right. We need leaders that recognize this. (Both Republicans and Democrats are guilty.)

Second. The trio of Suellentrop, Brownback, and Wagle need to reimburse Kansas taxpayers for the salaries of these staff for the time spent working on campaigns. (We should not blame the staff members. It’s the bosses and rule makers that are the problem.)

Third. Brownback and Wagle need to send staff to work for Suellentrop’s Republican challenger to the same degree they worked on the Suellentrop campaign. Either that, or make a contribution of the same value of the campaign services these taxpayer-funded Kansas state government workers supplied. Any other candidate in a similar situation — that of having taxpayer funds used to campaign against them — should receive the same compensation.

Now, some may be wondering how is this different from the governor endorsing senate candidates in 2012. It’s one matter for an officeholder to endorse a candidate. It’s an entirely different matter to send taxpayer-paid staff to work on campaigns. I hope that didn’t happen in 2012.

Fourth. Apologies to Kansas taxpayers are in order, as is a quick legislative fix. And, a reduction in personal staff members, as — obviously — there are too many.

Finally, thanks to the Eagle’s Bryan Lowry for this reporting.


Notes

  1. Lowry, Bryan. Taxpayer-funded campaign staff can knock at Kansans’ doors. Wichita Eagle, July 17, 2016. Available at www.kansas.com/news/politics-government/election/article90179637.html.

From Pachyderm: Kansas Senate Candidates

From the Wichita Pachyderm Club this week: Republican primary candidates for Kansas Senate were invited to participate in a forum. Candidates invited were:

  • In Kansas Senate District 25: William Eveland and Jim Price. (map)
  • In Kansas Senate District 26: Byron C. Dunlavy and Dan Kerschen. Dunlavy did not attend. (map)
  • In Kansas Senate District 28: Jo L. Hillman and Mike Petersen. Hillman did not attend. (map)

This is an audio presentation recorded on July 15, 2016.

WichitaLiberty.TV: News media, hollow Kansas government, ideology vs. pragmatism

In this episode of WichitaLiberty.TV: New outlets for news, and criticism of the existing. Is Kansas government “hollowed out?” Ideology and pragmatism. View below, or click here to view at YouTube. Episode 124, broadcast July 17, 2016.

Shownotes

Kansas government ‘hollowed-out’

Is Kansas government “hollowed-out” even though spending is rising?

In the Wichita Eagle, Burdett Loomis writes: “In 2011, Gov. Sam Brownback and a far-right Kansas House of Representatives began to hollow out state government, all in the name of smaller, more efficient, more private administration.”1

Loomis doesn’t define what he means by “hollow out” but the measure of the size of government is spending. Not taxation, but spending, because if government spends without taxing by the same amount, someone has to pay, eventually. Or, in the case of Kansas, we spent funds saved from years when Kansas collected more than it spent. (Yes, Kansans were over-taxed.) Then, we raised taxes.

Kansas General Fund. Click for larger version.
Kansas General Fund. Click for larger version.
In recent history Kansas general fund spending hasn’t fallen, except for one year, and that doesn’t “hollow out” government. Tax revenue declined, but what did Kansas do in response? Instead of cutting spending, the state engaged in deficit spending. For two years in a row, Kansas spent over $300 million each year from its savings in order to support (mostly) increasing spending. When that savings ran out, the state raised taxes rather than cutting spending.2

Charts at the end of this article show Kansas government spending, from general fund and all funds spending. One chart shows total dollars spent, and one shows per-capita spending. Both are adjusted for inflation. On these charts it’s difficult to see where total spending has been cut or slashed in recent years. All funds spending continues its upward trend, with a few exceptions. General fund spending remains level or trending slightly upwards.

Loomis: “But the value of a stable, reliable state government that delivers core programs in education, transportation, health and social services remains a bedrock element of most successful American states.”

An example from the visualization. This shows statewide spending, per pupil, adjusted for inflation. Click for larger version.
An example from the visualization. This shows statewide spending, per pupil, adjusted for inflation. Click for larger version.
Education spending in Kansas is not falling.3 Tables at Kansas State Department of Education have the numbers.4 Now we hear that the increases in spending are “all KPERS,” meaning contributions to the state retirement fund for teachers, and the state has recently changed to method of reporting KPERS contributions in a way that artificially inflates school spending. But Kansas State Department of Education says the method of reporting KPERS has not changed for ten years.5 Maybe we should ask former governor Kathleen Sebelius why she changed the method of reporting KPERS contributions in a way that (purportedly) artificially inflates school spending.

Kansas students compared to national. Click for larger.
Kansas students compared to national. Click for larger.
By the way, when writing about “reliable” state services, I wish Loomis would take notice of the huge gaps in achievement in our state’s schools between white students and minority students. For Kansas white students, 42 percent are proficient in reading at grade 4. For Kansas black students, only 15 percent are proficient, and 20 percent of Kansas Hispanic students. Similar gaps appear in reading at grade 8, and in math at grades 4 and 8.6 The sad fact is that this gap is reliable, occurring year after year.

KDOT spending on major road programs. Click for larger version.
KDOT spending on major road programs. Click for larger version.
As for transportation, there have been transfers from the state’s transportation fund to the general fund. This has been going on for a long time. But look at actual spending on roads. KDOT’s Comprehensive Annual Financial Report shows spending in the categories “Preservation” and “Expansion and Enhancement” has grown rapidly over the past five years. Spending in the category “Maintenance” has been level, while spending on “Modernization” has declined. For these four categories — which represent the major share of KDOT spending on roads — spending in fiscal 2015 totaled $932,666 million, up from a low of $698,770 in fiscal 2010. This is actual spending on roads without regard to transfers in or out of the highway fund.7

Transfers from Sales Tax to KDOT. Click for larger.
Transfers from Sales Tax to KDOT. Click for larger.
And while critics of the current administration focus on transfers from the highway fund, look at transfers to the fund. Nearby is a chart showing how many sales tax dollars were transferred to the highway fund. In 2006 the transfer was $98,914 million, and by 2015 it had grown to $511,586 million, an increase of 417 percent. Inflation rose by 18 percent over the same period.8

I’ll leave it to someone else to research spending on health and social services.

Near the end of the article, Loomis writes: “Over the past few years, much of the political discourse has focused on shrinking revenues from tax cuts.” But we should really be looking at the level of spending.

Now: Could it be possible that even with rising state spending that services are, in fact, being “hollowed out?” Yes. Absolutely. It is, after all, government providing these services.

Kansas Spending Adjusted for CPI 2016-01

Kansas Spending, Per Capita, Adjusted for CPI 2016-01

Notes for charts:
Data is from Kansas Fiscal Facts 2015
2015 through 2017 are approved figures, not actual spending
2015 and beyond population are my estimates
CPI is Consumer Price Index – All Urban Consumers, CUUR0000AA0


Notes

  1. Loomis, Burdett. Kansas is becoming a hollowed-out state. Wichita Eagle, July 9, 2016. Available at www.kansas.com/opinion/opn-columns-blogs/article88555862.html.
  2. Kansas has been borrowing, however. See: Weeks, Bob. Kansas transportation bonds economics worse than told. Available at wichitaliberty.org/kansas-government/kansas-transportation-bonds-economics-worse-than-told/.
  3. Weeks, Bob. Kansas school spending: Visualization. Available at wichitaliberty.org/wichita-kansas-schools/kansas-school-spending-visualization/.
  4. Kansas State Department of Education. Total Expenditures by District. Available at www.ksde.org/Agency/Fiscal-and-Administrative-Services/School-Finance/Budget-Information/Total-Expenditures-by-District.
  5. Weeks, Bob. KPERS payments and Kansas schools. Available at wichitaliberty.org/wichita-kansas-schools/kpers-payments-kansas-schools/.
  6. Weeks, Bob. ‘Game on’ makes excuses for Kansas public schools. Available at wichitaliberty.org/tag/wichita-and-kansas-schools/.
  7. Weeks, Bob. Kansas highway spending. Available at wichitaliberty.org/kansas-government/kansas-highway-spending/.
  8. Weeks, Bob. Sales tax revenue and the Kansas highway fund. Available at wichitaliberty.org/kansas-government/sales-tax-revenue-kansas-highway-fund/.

State and local government employee and payroll

Considering all state and local government employees in proportion to population, Kansas has many, compared to other states, and especially so in education.

State and Local Government Employee and Payroll. Click for larger.
State and Local Government Employee and Payroll. Click for larger.
When considering all state and local government employees, Kansas spent $249.73 per person on payroll (March only).1 This was 15th highest among the states, District of Columbia, and nation as a whole. There were 14.9 citizens for each FTE (full-time equivalent employee), which ranks fourth highest.

In other words, Kansas has many government employees compared to other states, and these employees are costly, again compared to other states.

When considering all elementary and secondary education employees, Kansas spent $93.36 per person on payroll (March only). This was 15th highest among the states, District of Columbia, and nation as a whole. There were 33.8 citizens for each FTE (full-time equivalent employee), which ranks third highest.

In other words, Kansas has many elementary and secondary education employees compared to other states, and these employees are costly, again compared to other states.

Similar results are found for higher education employees. Fortunately, Kansas has zero employees working in state-owned liquor stores.

In the visualization you may create your own tables. Click here to access the visualization. Source of data is U.S. Census Bureau.2 Visualization created using http://www.census.gov/govs/apes/.


Notes

  1. For total payroll (both full-time and part-time employees), the Census Bureau reports a value for a single month, that being March.
  2. U.S. Census Bureau. 2014 Annual Survey of Public Employment and Payroll. www.census.gov/govs/apes/.

Kansas Supreme Court: Making law, part 3

Do the justices on the Kansas Supreme Court make new law? Yes, and here is another example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one case:2

May a convicted criminal defendant pursue a legal malpractice action against this criminal-defense attorney without first obtaining any post-conviction relief? No, he may not, the Kansas Supreme Court held in Canaan v. Bartee, adopting what is known as the “exoneration rule.” In so holding, the Kansas Supreme Court acknowledged that it was making law. The Canaan court said that “Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas.” The court discussed earlier Kansas cases and concluded that they did not resolve the issue: “Thus, we are left to decide whether we will apply the exoneration rule in legal malpractice actions in Kansas.”

The Canaan court reviewed decisions from courts around the country and noted that most adopted the exoneration rule but some did not. The court also summarized what it candidly called “Policy Reasons Behind the Exoneration Rule.” The Canaan court’s punchline was: “After consideration of these authorities, the varying policy justifications, and the shortcomings of the various approaches, we find the majority view persuasive. We hold that before Canaan may sue his attorneys for legal malpractice he must obtain postconviction relief.”

Who considered “varying policy justifications” in deciding what Kansas law should be? Was it the Kansas Legislature? No, it was the judges on the Kansas Supreme Court did. As in all the examples discussed above, when it comes to the exoneration rule Kansas law is what it is because high court judges chose for that to be law based on what they considered “persuasive.” (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Making law, part 2

Do the justices on the Kansas Supreme Court make new law? Yes, and here is an example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one example:2

Does the state have a legal duty to control the conduct of parolees to prevent harm to other persons or property? When the Kansas Supreme Court confronted this question in Schmidt v. HTG, Inc., it noted a split of authority in other states. For example, a Washington court held that, yes, “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship” and this had the effect of imposing liability on the state. However, the Kansas Supreme Court “reject[ed]” this rule and said “The better-reasoned and more logical approach is that taken in [a Virginia case] which held that state parole officers did not take charge” of a parolee in the relevant sense.

So Kansas law on this topic … was made, not by the legislative or executive branches, but by the judges on the Kansas Supreme Court. In Schmidt, … the lawmaking judges did not pretend that they were compelled by the legislature or anyone else to choose one possible legal rule over another possible legal rule. Instead, the judges decided which view was “better-reasoned” and then made that view the law. (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Selecting Judges

While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.2

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

(In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three. This process gives members of the state’s bar tremendous power in selecting judges.)

By the way: For those who criticize the support for judicial selection reform as partisan politics — since Kansas has a conservative governor — remember this: When Professor Ware first sounded the need for judicial selection reform, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have approved any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Ware, Stephen J. Selection to the Kansas Supreme Court. Federalist Society for Law and Public Policy Studies. Available at www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.

From Wichita Pachyderm: Kansas House candidates

Voice for Liberty radio logo square 02 155x116From the Wichita Pachyderm Club this week: Republican candidates for the Kansas House of Representatives participated in a candidate forum. This is an audio presentation recorded on June 17, 2016.

Participating candidates:

In Kansas House District 87: Jeremy Alessi and Roger Elliott (district map)

In Kansas House District 91: Greg Lakin and J.C. Moore (district map)

In Kansas House District 94: Scott Anderson and Leo Delperdang (district map)

A Kansas school superintendent writes about school finance

A Kansas school superintendent explains school financing, but leaves out a large portion of the funds that flow to his district.

Steve Splichal, the superintendent of the Eudora Public School District, writes a blog in which he explained Kansas school financing. In one post he wrote this:

The general fund is largely made up from state funding called Base State Aid Per Pupil, or BSAPP. In 2008, the BSAPP reached it’s highest level of $4,400. As a result of funding cuts made during the Great Recession, the BSAPP was reduced dramatically. The Governor’s allotment (a cut of $42 in the BSAPP) lowered the BSAPP to $3,810. This is just about the same amount school district’s received in 2000. To put this in perspective, if the BSAPP had just maintained the rate of inflation, we would have a BSAPP of about $6,059.1

For the school year ending in 2014, which is the last before a change in the way state funding was accounted for, Eudora schools received $7,651 per student from the state.2 This is at a time the Eudora superintendent says base state aid is $3,810.

Kansas school spending per student, ratio of state aid per pupil to base state aid per pupil, 2014
Kansas school spending per student, ratio of state aid per pupil to base state aid per pupil, 2014
The superintendent’s article doesn’t mention this. Leaving out funding arising from weightings is a common mistake, or in some cases, a deliberate deception. The Kansas school finance formula used through the fiscal 2015 school year started with base state aid and added weightings to determine the aid a school district would receive. These weightings are substantial. In 2014, because of weightings, total state funding was 1.85 times base state aid.3

To his credit, the Eudora superintendent has a page explaining that the Kansas school finance formula — before the block grants — had weightings.4 But while lamenting the low level of base state aid, he never explained that his district received an additional 100.8 percent of base aid because of these weightings. Now the formula is gone, but the weightings are baked into the block grants that districts receive.

Let’s be charitable of the superintendent’s motives and attribute this to a forgetful and innocent oversight rather than deception. But I’m not going to forgive the superintendent for his errors in English usage.


Notes

  1. Splichal, Steve. *General Fund and BSAPP.* Eudora Rocks! A blog by Superintendent of Schools Steve Splichal. January 19, 2015. Available at eudorarocks.org/general-fund-and-bsapp/.
  2. Kansas State Department of Education. School finance data warehouse. Available at www.ksde.org/Portals/0/School%20Finance/data_warehouse/total_expenditures/d0491exp.pdf.
  3. Weeks, Bob. Kansas school weightings and effects on state aid. Voice for Liberty. Available at wichitaliberty.org/wichita-kansas-schools/kansas-school-weightings-and-effects-on-state-aid/.
  4. Splichal, Steve. Kansas School Finance Formula. Eudora Rocks! A blog by Superintendent of Schools Steve Splichal. January 19, 2015. Available at eudorarocks.org/kansas-school-finance-formula/.