The wrong canon; the wrong Allegrucci

In May 2005, Karl Peterjohn, Executive Director of the Kansas Taxpayers Network, wrote an editorial that explained how Kansas Supreme Court Justice Donald L. Allegrucci needed to recuse himself from matters involving the Kansas school finance lawsuit. That’s because his wife, Joyce Allegrucci, is Governor Kathleen Sebelius’s chief of staff, and the governor has taken a public position on the case.

After reading Peterjohn’s editorial, I decided that more action was necessary. I found out that the Kansas Commission on Judicial Qualifications might be a forum that could deal with ethical lapses like Justice Allegrucci’s. I filed a complaint against Justice Allegrucci, and so did Peterjohn. You can read the details of my case in the article The Ethics Case Against Justice Donald L. Allegrucci published on The Voice for Liberty in Wichita. The basis of the case is the Kansas Rules Relating to Judicial Conduct, Canon 2, paragraph B, which states: “A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.” Furthermore, in the commentary to Canon 2, paragraph A: “A judge must avoid all impropriety and appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

I thought that a judge ruling on a matter of importance to his wife’s boss qualified as the appearance of impropriety, if not actual impropriety.

My complaint was considered on July 1, 2005. In a letter dated July 12, 2005, the commission informed me that based on Canon 3E(1)(d)(iii), there was no case. This is curious, as I did not cite this canon. It says:

E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;

“De minimis” denotes an insignificant interest that could not raise reasonable question as to a judge’s impartiality.

I do not know whether the commission did any fact-finding, but evidently they concluded that Joyce Allegrucci, who is the governor’s top employee and who has managed all her political campaigns, doesn’t care very much about the outcome of a case that the governor cares very much about. This is not reasonable. It is laughable.

There is still the issue of the Canon 2 appearance of impropriety, which was not addressed by the commission. I think that Joyce Allegrucci’s resignation speaks volumes about that. I’m sorry that she resigned. I didn’t file a complaint against her. To my knowledge, she has committed no infraction. It is her husband, Justice Allegrucci, who had the responsibility to disqualify himself.

(By the way, I happen to disagree with the court’s ruling, but that is beside the point. The point is that we don’t know whether Justice Allegrucci’s rulings are affected by his family relationship. It may be that the Allegruccis are not getting along very well, and the judge might rule to spite his wife. Or, perhaps he is capable of making a ruling without letting the family relationship influence his judgment. But we don’t know, and we probably can’t ever know. That is why this is the appearance of impropriety.)

I believe that press coverage of this matter is missing this point. Politicians are missing it, too. Consider this, as reported by The Wichita Eagle: “‘There’s no conflict of interest, absolutely none,’ said Sen. John Vratil, R-Leawood. ‘Many people don’t understand what conflict of interest is. They perceive it as any situation they don’t like.’ He said Allegrucci wasn’t involved in the school finance discussions between legislative leaders and the governor’s office during the special session.”

Sen. Vratil seems to think that we accused Joyce Allegrucci of committing an ethical violation. Instead, we accused her husband, Justice Donald L. Allegrucci, as it is he who violated the Kansas Rules Relating to Judicial Conduct.

Further in the same article: “Senate Majority Leader Derek Schmidt, R-Independence, called Allegrucci’s departure a loss of a ‘talented staff member,’ but noted the governor won’t have to deal with the criticism of her staff being too close to the court in an [sic] re-election year.”

Sen. Schmidt treats this matter as merely “inside politics.” It is true that people probably won’t remember this matter by the time of next year’s elections. Again, I don’t believe that Governor Sebelius or Joyce Allegrucci committed any ethical violations. It is Justice Allegrucci who should have recognized the impropriety of the situation and disqualified himself.

In summary, we have a Kansas Supreme Court Justice who has committed an ethical violation. The Kansas Commission on Judicial Qualifications didn’t agree, and didn’t consider an applicable canon when making its ruling. The press and some Kansas politicians fail to understand the importance of this matter. Instead of our state using this situation as an opportunity to reinforce the importance of ethics through a careful review and discussion of “impropriety” and the “appearance of impropriety,” the wrong person has resigned and the issue appears to have been resolved. A scapegoat isn’t what Kansas needs to increase confidence in our government. We need a press that sees the issue as vital and a group of representatives that realize confidence is their ticket not only to reelection, but to respect.

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