In this episode of WichitaLiberty.TV: Radio Show Host Joseph Ashby joins host Bob Weeks to talk about Kansas judges, Kansas schools, and presidential politics. View below, or click here to view at YouTube. Episode 128, broadcast September 11, 2016.
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.
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Notes
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
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
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. 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.
A 2012 paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the judicial selection process in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas court that uses the method of judicial selection described in the paper — the Missouri Plan — is the Kansas Supreme Court. (Prior to July 1, 2103, the Kansas Court of Appeals also used the Missouri Plan for judicial selection.)
At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”
A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.
Since judges function as lawmakers, they ought to be selected by a democratic process. 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, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.
In the paper, 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.
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 Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. In 2012 the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”
Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.
Owens, it should be noted, is an attorney, and is, therefore, a member of the privileged class that has outsize power in selecting judges.
Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”
Contrary to Schodorf, the bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.
Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”
With the change in the composition of the Kansas Senate, the climate became favorable for reform of the way judges are selected for the Kansas Court of Appeals. In 2013 legislation reforming judicial selection for this court was passed and signed into law, taking effect on July 1, 2013. Now these justices are selected by appointment of the governor with confirmation by the senate. The law governing how judges for the Kansas Supreme Court are selected is part of the Kansas Constitution, and would require an amendment to alter the process. That requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.
By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped 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.
I don’t care who does the electing so long as I do the nominating.
— William “Boss” Tweed, political boss of Tammany Hall
Critics of Kansas Governor Sam Brownback point to his nomination of a confidant to the Kansas Court of Appeals as evidence of politics trumping the — purportedly — merit-based selection process formerly in place.
The previous process, however, was nothing if not political. Its defenders — the state’s legal profession — denied that, but they were in charge of the process.
In fact, the reason that Caleb Stegall, the current nominee, is not already on the bench is politics.
Stegall’s recommendation from Felita Kahrs, a member of the Supreme Court Nominating Commission, highlights both his judicial qualifications and the political challenge he may face as a nominee. Ms. Kahrs previously reviewed Stegall’s application for the Kansas Court of Appeals, and her recommendation says that she found that his “outstanding academic background, his excellent writing ability, and the experience he brings to this position, exceeded and in some cases far surpassed the other applicants.” Even though she believed that he “was one of the top candidates that appeared before the Commission,” she explained, “due to politics, his name was not submitted.”
That’s from National Review Online’s Bench Memos.
And if you’re wondering why so many will criticize this appointment and the new process, well, “hell hath no fury like a lawyer scorned.”
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. 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 two highest courts, violates this principle.
A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.
At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”
A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.
Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.
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.
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 Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”
Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.
Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.
Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”
The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.
Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”
With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.
By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped 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.
Kansas University School of Law Professor Stephen J. Ware appeared on the KAKE Television public affairs program This Week in Kansas to discuss the method of judicial selection in Kansas. Phil Journey and Chapman Rackaway appear as panelists. Tim Brown is the host.
In today’s debate the issue of judicial selection reform is usually characterized as strictly political. Now that Kansas has a conservative governor and a conservative legislature, it is said that conservatives want to remake the courts to suit their ideology.
That may be the motivation for many. But Professor Ware has advocated for reform for a long time, favoring a system of appointment by the governor with confirmation by the senate. Ware’s 2007 research paper on this matter, published by the Federalist Society, may be read at Selection to the Kansas Supreme Court. The opening sentence of this report starkly states the singular character of the process in Kansas: “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”
At the time Ware wrote this paper and convinced me of the need for reform, Democrat Kathleen Sebelius had just been re-elected Kansas Governor. The senate — which would confirm the governor’s appointments — was firmly in the control of political liberals and moderates who would be sure to rubberstamp her pick. Rubberstamp — that’s a word we see used today by progressives to describe the machinery of Kansas politics at the state level.
Another paper by Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge.
Following are several reactions to the decision in Gannon vs. Kansas, the school funding lawsuit. The court ruled the state must spend more on schools.
An important observation on the true size of the court-ordered tax increase was offered by Kansas Policy Institute:
“Today’s mandate of a $654 Base State Aid Per-Pupil (BSAPP) increase forces the state to raise annual spending and taxes by $440 million and, because of the way the Local Option Budget is written, local property taxes will automatically increase by $154 million. In total, the Shawnee District Court would take an additional $594 million out of the Kansas economy every year.”
See KPI on Gannon: Extremely Unfortunate $600 Million Annual Tax Hike more, including:
“It is extremely unfortunate for citizens of Kansas that the court has effectively ordered an annual $594 million tax hike. This is even more shocking given that there is no evidence that the billions in increased spending have raised student achievement on independent national exams. According to the National Assessment of Educational Progress (NAEP), less than half of Kansas’ 4th and 8th grade students are proficient in math and only about one third are proficient in reading – this is essentially unchanged over the past decade despite billions in increased taxpayer support.
“It costs a lot of money to operate our schools, but its how the money is spent that matters, not simply how much. Just this week, Education Week gave Kansas a D+ for student achievement; among other things, this was a result of low rankings for achievement gains and that we are below the national average for gains in each subject and grade level. They also pointed out that per-pupil spending in Kansas is above the national average and that State expenditures on K-12 schooling, as a percent of state taxable resources, are the 12th highest in the nation.
Kansas Governor Sam Brownback issued this statement:
“The ruling by the district court is disappointing but not unexpected given the Kansas Supreme Court’s previous ruling in the Montoy case in 2005. Through today’s ruling, the courts are drastically increasing the property tax burden on every Kansan. The Kansas Legislature, not the courts, has the power of the purse and has, in fact, increased total state funding for schools every year during my administration. The legislative process is the appropriate venue for debating and resolving issues of taxation and spending.”
From Senate President Susan Wagle:
“Once again, Kansas judges have overstepped their constitutional bounds and defied the will of Kansas voters and their elected representatives and senators. With today’s decision, this judicial panel ignored the system of checks and balances that every Kansas student is taught in school and decided that they alone, not the people via the legislature, would determine how the people’s money should be spent, by imposing a specific dollar amount that Kansas must spend for education.
“These judges have made themselves the sole arbiters of spending — and by extension, taxation — in Kansas. They have demonstrated no regard for the ability of struggling Kansas families to pay higher taxes, if necessary, to meet their demands. This also disregards the will of Kansas voters, who overwhelmingly elected a House and Senate that supports the existing school funding policy — one that maintains educational quality while also being sensitive to the very real difficulties being faced by Kansas taxpayers.
“I am committed to upholding the will of the majority of Kansans who want their elected leaders to maintain high-quality public education. I am committed to restoring to Kansas the fundamental American principle that only the elected representatives of the people of Kansas — accountable to them at the ballot box — may enact laws regarding spending and taxation.”
In a press release titled “District Court decision supports a quality education” Kansas National Education Association (KNEA), our state’s teachers union said:
Once again a Kansas Court has found that the Legislature has failed to fully fund an appropriate public education for Kansas students. …
As to the issue of property taxes, this decision has no effect on property taxes whatsoever. Whether or not property taxes increase will be a matter of how the Legislature decides to react. Since the Legislature last year chose to enact massive cuts to the state income tax, they will need to look to some tax source to overcome first the shortfall of nearly $300 million created by the tax cut and then the projected $440 million necessary to fund the school finance formula. If property taxes go up, the decision will rest entirely with the Legislature. There are many options available to them; they have so far chosen to use scare tactics in reaction to being held accountable.
There is no greater economic development tool than a well-trained, well-educated citizenry. Kansas has long delivered on that promise. This ruling reasserts the State’s commitment to the children, families, and businesses of Kansas.
USD 259, the Wichita public school district:
The District Court of Kansas issued its opinion on the school finance lawsuit on January 11. The ruling, which is in excess of 250 pages, requires adequate funding for schools. The court ordered that the base state aid per pupil should be funded at $4,492, up from $3,838. If funded, the base increase would restore most of the cuts the district has made since 2009. The increase could be at least $45 million. To read the ruling, click here. To watch BOE President Lynn Rogers’ news conference about the opinion, click here.
“This is a win for Kansas students,” said BOE President Lynn Rogers. “The lawsuit is about our children and the Kansas of tomorrow, so we can prepare Wichita students for the high-wage, high skill jobs of the future.”
BOE President Rogers said that the lawsuit was about adequate funding for all Kansas students and that they deserve a quality education regardless of where they live in the state. He also said it is about creating a highly-skilled workforce for the future, which starts with students receiving a quality education.”
“The education we provide is the foundation for our workforce and the future of Kansas. If we don’t give our students a quality education now, we will pay for it in the future,” he added.
The school districts involved in the lawsuit represent about one-third of the students across the state.
President Lynn Rogers said that school districts must collaborate with the Kansas State Legislature to work towards school funding solutions.