Whitewash

Writing from Dallas, Texas

Thank you to Karl Peterjohn for this excellent piece. You can read more about the Kansas Supreme Court at this link: Summary of Blogging on Judicial Ethics in Kansas

Whitewash
By Karl Peterjohn, Executive Director, Kansas Taxpayers Network

There are laws and rules while there are lawyers and judges but there is truly one unique and privileged class where the rules do not apply in Kansas: The Kansas Supreme Court.

Friday, August 18 the “ethics” panel that handles ethics complaints issued their weakest penalty of an “admonishment” for the egregious misbehavior of Kansas Supreme Court Justice Lawton Nuss in the school finance lawsuit.

Nuss had been exposed discussing this pending case with several legislative leaders last March. Nuss had trampled on the judicial cannon of ethics like a tap dancer with a leg twitch (Canon’s 1, 2A, 3B(7)). For this extended transgression he received an “admonishment.” The dictionary definition for an admonishment is, “to warn,” or to “reprove mildly.”

There were a number of penalties that could be imposed on Nuss, one of the two Republicans on the seven member Kansas Supreme Court. A more severe penalty would have been censure, “to blame, to condemn as wrong.” Most severe would have recommended Nuss removal from the court. Nuss’ transgressions are so severe that he should resign or face impeachment.

Nuss’ contempt for the rule of law has a long history. As a lawyer in private practice in Salina, Nuss and his law firm had represented the Salina school district. When Governor Graves appointed his hometown neighbor onto the Kansas Supreme Court in 2002, it would have seemed obvious for Nuss to recuse himself from the Montoy school finance lawsuit that was already being litigated. The lead plaintiff named Montoy was a son of a Salina public school district principal. The Salina public schools were a lead plaintiff among the numerous public schools suing for tax money. Despite 2005 ethics complaints that were dismissed by the Supreme Court’s ethics commission, Nuss demonstrated his legal arrogance and continued on this case until his legislative ex parte meeting was exposed.

Yet Nuss’ ex parte conversations are not the sole ethics problem for the Kansas Supreme Court. A leading critic of the judicial activism in Kansas, Andover attorney Richard Peckham, filed ethics complaints against the entire Kansas Supreme Court (www.kansasjudicialwatch.org). Peckham’s complaint extends Nuss’ improper behavior and communications to the entire Kansas Supreme Court relying upon Nuss’ own defense as the basis for this complaint (the entire court went outside their ethics rules in this case). As of August 22 Peckham’s complaint is still pending in front of the court’s ethic’s panel.

Peckham criticized the Nuss ruling as “It is too light a penalty. …the other six (justices) are all culpable for the same ex parte communications.” Peckham pointed out that the court’s ethics panel was designed for transgressions from lawyers and lower court judges and is inadequate for examining the Supreme Court ethical lapses itself.

Liberal editorial pages like the Wichita Eagle were quick to declare this issue resolved and were ready to move on, “That should be the end of the Nuss fuss. The inappropriate discussion of an ongoing case has been investigated,” The Wichita Eagle editorialized August 19. “No evidence has been revealed to suggest the conversation influenced either the court’s or the legislature’s action, or that it was one of many ex parte communications.” Sadly, it looks like the Eagle did not follow the spending spree performed in the name of judicial compliance by the 2006 legislature and Governor Sebelius, or even bothered to read Nuss’ response to the charges against him which were like the kid caught with his hand in the cookie jar saying, “all the other kids (judges) were eating them too.”

Republican gubernatorial candidate state Senator Jim Barnett, R-Emporia, who deserves much of the credit for helping expose the legislative leaders who participated in these improper communications, has complained about the impact that Nuss’ misbehavior had on the Kansas senate. Barnett’s amendment limiting the public school spending growth to roughly $400 million failed on a 20-20 vote in the senate the day after this infamous luncheon was held. Legislators lunching with Nuss voted against Barnett. A few days later the four top senate leaders from both political parties issued their $660 million public school spending spree proposal that many legislators viewed as receiving a judicial “green light” from the court’s back channel communications.

The judicial misbehavior in the school finance lawsuit is corrosive to the rule of law in this state as well as expanding the negative fiscal climate in Kansas. Judges should not be setting budgets. Kansans need truth and not a judicial whitewash.