Tag Archives: Kansas Supreme Court

Decoding the Kansas teachers union

Explaining to Kansans what the teachers union really means in its public communications.

After the November 2016 election, the Kansas National Education Association — our state’s teachers union — wants to explain to Kansas the meaning of the results. But it takes a seasoned eye to recognize the subterfuge the union uses to advance its interests. The message from the union may be read at It was the best of times, it was the worst of times. Following, quotes from the union missive and interpretation.

“But at KNEA, we are focusing on what the 2016 election means for public education.” Here the writer — lobbyist Mark Desetti — correctly identifies the concern of the teachers union: Public education. Not education, but only public education. Why? Teachers in private schools are not union members. Neither are teachers in charter schools, even though these schools are public schools. So you can see the concern of the union is more precisely only the public schools where there are union members.

“And here in Kansas, our legislative races look more like the best of times.” The public schools really hate being called government schools. But when the outcome of elections affects your outlook, well, that sounds like a government institution.

“At least for those of us who advocate for children, schools, and teachers.” The teachers union’s only concern is teachers. Do not be persuaded otherwise. If the union really cared about children, it would stop opposing school choice programs.

“Combined with moderate Republican victories, this creates a pro-public education block of as many as 75 votes.” Again, public education is the union’s concern.

“The people of Kansas, regardless of party affiliation have let it be known that they are done with the Brownback ‘experiment’ and want to go in a new direction. That direction includes funding our schools and taking care of our children and families.” Governor Brownback was ill-advised to liken cutting taxes to an experiment. As adults, we ought to recognize the boasting of politicians. This doesn’t mean that cutting taxes was wrong. Cutting taxes is the right thing to do, as it means government leaves more resources in the hands of those who earned it. It leaves more money in the productive private sector, instead of in the wasteful public sector, Also, the union should have ended the last sentence at “funding our schools.” If the union truly cared about children and families, it would stop opposing giving parents the power of school choice.

“Kansans also rejected the governor’s attempt to politicize our Supreme Court.” But, the court is already politicized, and in a direction the union favors. So, the union appears to be taking the high ground.

“This vote ensures that our courts will stay free of political and ideological tampering.” If the court really wanted to stay out of politics, it would rule that the level of school spending is a legislative decision, not a judicial decision. But since most of the justices were nominated by a committee overstocked with political liberals, then appointed by liberal governors, the union is pleased with the court.

“Justice should never be for sale.” Well, when you already own the justices on the Kansas Supreme Court, it’s easy to float such high-minded, but transparent, proclamations.

Do not be persuaded by the claims of the Kansas teachers union. The union continually opposes reform measures that would help students simply because reform would mean fewer union members. That — and only that — is the job of the teachers union.

Did the Kansas Supreme Court read these cases?

The merit system of judicial selection in Kansas has sprung a leak, finds the United States Supreme Court.

One of the purported benefits of the merit system of judicial selection in Kansas is that it produces quality jurists who rule on the law, not on their personal beliefs or ideologies.

But a recent case shows otherwise. Following, a selection of dialog between Kansas Attorney General Derek Schmidt and United States Supreme Court Justice Antonin Scalia:1

JUSTICE SCALIA: Did the Kansas Supreme Court read these cases?
MR. SCHMIDT: Perhaps I ought not answer that, Justice Scalia, but —
JUSTICE SCALIA: How can you explain it if — if indeed our prior cases are so clear on the point?
MR. SCHMIDT: Justice Scalia, I, of course, don’t —
JUSTICE SCALIA: They don’t like the death penalty.

Here, in one exchange, Scalia exposes the legal incompetence of the Kansas Supreme Court because they rule based on their policy preferences, not the law. “Did the Kansas Supreme Court read these cases?” That’s a question a law school professor asks a lazy student. It shouldn’t need to be asked of justices on the highest court in Kansas.

But the United States Supreme Court found it necessary to ask if Kansas judges were reading their cases. This is precisely what the merit system is supposed to avoid.

For more on this see this video from Joseph Ashby.


Notes

  1. Oral arguments in Kansas v. Gleason and Kansas v. Carr, October 7, 2015. http://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/14-452_b18j.pdf.

Kansas Democrats: They don’t add it up — or they don’t tell us

Kansas Democrats (and some Republicans) are campaigning on some very expensive programs, and they’re aren’t adding it up for us.

A sampling of campaign literature from Kansas Democratic candidates in south and west Wichita for the Kansas Legislature1 reveals several common threads:

  • Few will identify themselves as Democrats.
  • Eliminating the LLC loophole is popular.
  • Eliminating or reducing sales tax on food is popular.
  • Eliminating the 2015 sales tax increase is popular.
  • Fully funding schools is popular.
  • None of these show the cost of these ideas, nor do they offer ideas on how to pay for these things, except for eliminating the LLC loophole.

What will these things cost? Here’s some figures.

LLC loophole and food sales tax: This year a bill was proposed in the Kansas Legislature to restore taxation of non-wage business income, that is, to eliminate the so-called “LLC loophole.” It would also reduce the sales tax on food from 6.5 percent to 2.6 percent. The fiscal note for this bill estimated an increase in tax revenue to the state of $260.9 million from the non-wage business income, and a loss of revenue to the state of $234.1 million for the sales tax reduction.2

Extrapolating the food sales tax figures implies that eliminating the sales tax on food would mean a loss of revenue to the state of $435 million, assuming no change in consumer behavior.

Rollback general sales tax: In 2015 when the legislature voted to raise the statewide sales tax from 6.15 percent to 6.50 percent on July 1, 2015, it was estimated that revenue to the state would increase by 164.2 million. For fiscal year 2017, by 186.7 million.3

(By the way, the tax on cigarettes was increased by an estimated $40.39 million. If we’re rolling back sales tax increases, we should roll back this 50 cent per pack increase, too. I haven’t seen any advocates for this.)

Fully funding schools: Who knows what “full funding” really means? The Kansas Supreme Court believes it — and it alone — has the ability to put a number on this. A consensus seems to be developing at around $450 million per year in additional school funding is what the court may order.

Adding up the costs (using some numbers a few years old): $260.9 million – $435 million – $164.2 million – $450 million equals -$1,310.1 million in changes to annual general fund revenue. ($-1,350.5 million if we want to be fair to smokers.)

This is the proposed change to Kansas general fund revenue that these candidates omit from their campaigns. It is the amount by which taxes must be raised, or spending be cut (or a combination of taxes and cuts). Some of these numbers are estimates that could be off by a lot. There can be some quibbling, such as reducing the food sales tax instead of eliminating it, which will change the numbers. But there’s no doubt that the plans Kansas Democrats propose will cost a lot of money.

Total revenue to the general fund in 2016 was $6,073.4 million. Major sources include:
Income taxes (individual, corporate, financial institution): $2,640.8 million
Excise taxes (sales, compensating use, cigarette, liquor, severance): $2,927.7 million

So if the state wanted to raise spending by, say, $1.310 billion dollars, it would have to raise income taxes by 49.7 percent, or excise taxes by 44.7 percent. Or a combination. Either way, that’s a lot.

When you see candidates for the Kansas Legislature — Democratic and Republican — mention these programs, ask if they know how much they will cost. Ask whose taxes will be raised or whose programs will be cut.

And ask this really important question: Just how will all this make Kansas a better state?

  1. Photographs of a number of pieces may be viewed in this folder at Flickr: https://flic.kr/s/aHskMJfGNc.
  2. Kansas Legislature. HB 2444. Eliminating the business non-wage income tax exemption and reducing the sales tax rate on food. http://www.kslegislature.org/li/b2015_16/measures/hb2444/.
  3. Kansas Legislature. Revenue Enhancements and Other Provisions; Senate Sub. for HB 2109, as amended by House Sub. for SB 270 and HB 2142. http://www.kslegislature.org/li/b2015_16/measures/documents/summary_hb_2109_2015.pdf.

Kansas school fund balances

  • Kansas school fund balances rose significantly this year, in both absolute dollars and dollars per pupil.
  • Kansans might wonder why schools did not spend some of these funds to offset cuts they have contended were necessary.
  • The interactive visualization holds data for each district since 2008.

As Kansans debate school funding, as the Kansas Supreme Court considers ordering more school spending, and as school spending boosters insisting that school spending has been slashed, a fact remains constant: Kansas schools don’t spend all the money they’ve been given. Fund balances grew in many years, and rose rapidly this year.

Fund balances are necessary for cash flow management. The issue is what levels of balances are necessary. Based on recent data from the Kansas State Department of Education, fund balances rose rapidly after 2008, remained largely level from 2011 through 2015, and rose for 2016.

For the school year ending in 2015, total cash balances were $1,745,557,046. (This total does not include non-school funds like museums and recreation center funds.) For 2016, the figure was $1,871,026,493. This is an increase of $125,469,450, or 7.2 percent.

Kansans might wonder why schools did not spend some of these funds to offset cuts they have contended were necessary.

I’ve gathered data about unspent Kansas school funds and presented it as an interactive visualization. You may explore the data yourself by using the visualization. Click here to open the visualization in a new window. Data is from Kansas State Department of Education. Visualization created using Tableau Public.

Kansas school fund balances, all districts. Click for larger.
Kansas school fund balances, all districts. Click for larger.

WichitaLiberty.TV: Radio host Andy Hooser

In this episode of WichitaLiberty.TV: Radio show host Andy Hooser visits the KGPT studios to talk about upcoming elections in Kansas and the presidential campaign. View below, or click here to view at YouTube. Episode 130, broadcast October 16, 2016.

Hooser’s radio show is The Voice of Reason with Andy Hooser. Its Facebook page is here, and the podcast is here.

Selecting judges in Kansas

Appellate court judges make new law, and Kansas has the most elitist and least democratic supreme court selection system in the country.

What is the substantive difference between these two systems?

A) A state’s chief executive appoints a person to be a judge on the state’s highest court. Then the state’s senate confirms or rejects.

B) A nation’s chief executive appoints a person to be a judge on the nation’s highest court. Then the nation’s senate confirms or rejects.

Perhaps there is a difference that I’m not smart enough to see. I’m open to persuasion. Until then, I agree with KU Law Professor Stephen Ware and his 2007 analysis of the way Kansas selects Supreme Court judges as compared to the other states.1 That analysis concludes that “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.”

Ware has made other powerful arguments in favor of discarding the system Kansas uses: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.”2

Judges, Ware says, make law, and that is a political matter: “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.”3

Kansas exhibits a pattern of selecting governors from alternate political parties.
Kansas exhibits a pattern of selecting governors from alternate political parties.
For Kansas progressives and Democrats to oppose Kansas adopting the same system that has enabled Barack Obama to appoint two liberal justices to the U.S. Supreme Court, with perhaps more to come — don’t they realize that Kansas will (likely) have a Democratic governor someday? As Clay Barker noted, for the last 50 years, no Kansas governor has been followed by a successor of the same party (except for Mark Parkinson filling the remainder of a term after Kathleen Sebelius resigned). If that pattern holds — and there’s no guarantee that it will — the next Kansas governor will be a Democrat.

Superficially, it doesn’t seem to make sense for Kansas Democrats to oppose the governor making judicial selections while supporting the President of the United States having the same power. It does make sense, however, when we realize that Kansas Democrats are comfortable with the state’s bar selecting the judicial nominees that the governor may consider. (Which gives truly useful and enjoyable bars a bad name.) Lawyers, especially lawyers that take an active role in politics, tend to be Democrats, and progressive Democrats at that. If the Kansas bar was dominated by constitutional conservatives, would Kansas Democrats feel the same?

I’m not claiming that the motives of conservative Kansas Republicans are pure. Will they change their stance on the desirability of the governor appointing Supreme Court judges if there is a Democratic governor? I don’t know, but I have a suspicion.

Defenders of the current Kansas system claim that the system is based on merit, not politics. To which we must note that this year the Kansas Supreme Court was reversed by the United States Supreme Court. It wasn’t even close, with justices voting eight to zero that the Kansas court was wrong in its application of the law. (The other Supreme Court justice said “I do not believe these cases should ever have been reviewed by the Supreme Court.) If we’re relying on our state’s bar to select competent judges, we’re making a mistake.

  1. Ware, Stephen J., Selection to the Kansas Supreme Court. Fed-soc.org. Available at: http://www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.
  2. Ware, Stephen J., The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court (September 25, 2009). Kansas Journal of Law & Pubic Policy, Vol. 18, No. 3, p. 392, 2009. Available at SSRN: http://ssrn.com/abstract=1478660.
  3. Ware, Stephen J., Originalism, Balanced Legal Realism and Judicial Selection: A Case Study (August 3, 2012). Available at SSRN: http://ssrn.com/abstract=2129265.

School choice and funding

Opponents of school choice programs argue the programs harm traditional public schools, both financially and in their ability to serve their remaining students. Evidence does not support this position.

The prevalent argument is that charter schools and other school choice programs drain funds from public schools. That is, if a public school student chooses to attend a charter or private school, and if the money follows the student to the other school, the public school district loses money that it otherwise would have received. Therefore, the public school district is worse off, and so too are its students.

A rebuttal is that since a public school has shed the responsibility for schooling the student, its costs should fall correspondingly. This would be true if all the costs of a public school are variable. Some costs are fixed, however, meaning they can’t be adjusted quickly — in the short run, that is. An example is the cost to maintain a classroom. If a school has one less student than the year before, it still requires the same support for utilities. One or several fewer students doesn’t mean that fewer teachers are needed.

Public schools and their lobbyists, therefore, argue that school choice programs are a financial burden to public schools. Under school choice programs, they say, public schools lose students and their accompanying funding, but the public schools retain their fixed costs.

The Fiscal Effects of School Choice Programs on Public School Districts (cover)The question, then, is what portion of a school’s costs are variable, meaning costs that schools can adjust quickly, and what portion are fixed, meaning they can’t be adjusted quickly? Benjamin Scafidi, professor of economics at Kennesaw State University, has examined schools looking for the answer to this question. His paper The Fiscal Effects of School Choice Programs on Public School Districts, published by EdChoice (formerly The Friedman Foundation for Educational Choice), holds answers to these questions.

The first question is this: What is the relation of school choice programs to school districts’ variable costs? Scafidi has endeavored to determine the breakdown between variable and fixed costs in each state. In Kansas, for the 2008 – 2009 school year, total spending per student was $11,441. Of that, Scafidi estimates $3,749, or 32.8 percent, were fixed costs. Variable costs were $7,692, or 67.2 percent. Since then spending has risen, but there’s no reason to think the allocation of costs between fixed and variable has changed materially. For the school year ending in 2015 total spending per student was $13,1241. That implies fixed costs per student of $4,305 and variable costs per student of $8,819.

Now, how much money would a public school lose if a student chose to attend a school other than the traditional public schools? For Kansas this question is complicated by recent changes in the way public schools are funded. Prior to the school year ending in 2016, Kansas used a school funding formula that started with a figure called “base state aid per pupil.” For 2015 the value was $3,852, and that is the starting point for calculating state spending per student.

In a recent presentation on this topic, Scafidi said: “Any school choice program where about $8,000 per student or less, on average, follows the child to the school of his or her choice, improves the fiscal situation of the public school district, on average, and students who remain in public schools have more resources available for their education.” Considering only base state aid per pupil, a typical Kansas school district, which has variable costs of $8,819 per student, has its fiscal situation improved when it loses a student and the accompanying $3,852 in state funding.

Kansas School Finance Formula, from Kansas Policy Institute, August 2014
Kansas School Finance Formula, from Kansas Policy Institute, August 2014
Many Kansas students, however, trigger much more funding due to weightings that compensate for the purported higher costs of some situations. The largest weighting in Kansas, based magnitude, is the “at-risk” weighting. It adds 45.6 percent to base state aid. So if a Kansas public school loses such a student and weighting, it loses $5,608 in funding. That is far less than its variable costs of $8,819. State funding for Kansas schools in the school year ending in 2015 was $8,5672 per student, still less than school districts’ variable costs.

I asked Scafidi what is the dividing line between variable and fixed costs? The answer is that within two or three years, schools should be able to adjust their fixed costs to be in line with their needs. This is in line with the economic and accounting reality that says in the long run, all costs are variable.

Can school districts adjust their costs quickly in response to changing enrollments? This may be a problem for the very smallest districts, those with just one or two teachers per grade, Scadifi concedes. In his paper, Scafidi illustrates two examples of districts in Georgia with just over 1,000 students making adjustments. In Kansas, there are 286 school districts. Of these, 207 have enrollment of less than 1,000 students, but only 20 percent if the state’s students are in these small districts.

School districts often dispute the contention that they are able to reduce their variable costs rapidly in response to enrollment changes. Scafidi notes that if school districts say they cannot reduce costs when they lose students, the implication is that all of their costs are fixed. If that is true, then schools should not receive additional funding when enrollment rises. If all their costs truly are fixed, the total cost of running a school district does not change with enrollment — either up or down.

Going forward in Kansas

Kansas is in the process of formulating a new school financing method. For the school years ending in 2016 and 2017 the state has used a block grant method, whereby state funding to school districts was frozen at the 2015 level with some increases programmed into the law. Current law anticipates a new funding formula being passed in the 2017 legislative session and applied to the school year ending in 2018.

One of the most important goals for the new funding method should be transparency and flexibility. The prior school finance formula was criticized as being complex and difficult to understand. For example, in June the Kansas Legislature held a special session in order to increase school funding in response to a decision by the Kansas Supreme Court. But, more than half of the higher funding the Wichita school district received went to property tax reduction, rather than being spent on schools.3 Citizens have trouble understanding how increasing state school funding means a reduction in property tax instead of more teachers or schoolbooks. This illustrates a problem with transparency in the prior funding formula.

Remaining students

We have seen that school choice programs do not harm the finances of local school districts. The second question concerns the quality of education for the students who remain in public schools.

To answer this question, we must recognize the wide variation of teacher efficacy. Some are very good, and some very poor. Further, the difference between good and bad is large. Eric A. Hanushek and others have found that very good teachers routinely produce 1.5 years of gain in achievement during an academic year. Bad teachers produce 0.5 years of gain.4 If a student is unfortunate enough to experience ineffective teachers two or three years in a row, the student may be so far behind as to never catch up.

What does this have to do with school choice programs? If public schools have to downsize due to students lost for any reason — including school choice programs — this gives public schools an opportunity to shed their least effective teachers. This means that students who remain in public schools have a higher likelihood of experiencing the most effective teachers.


Notes

  1. 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.
  2. ibid.
  3. Lowry, Brian. Kansas schools will stay open as court OKs funding fix. Wichita Eagle, June 28, 2016. Available at www.kansas.com/news/local/education/article86508017.html.
  4. Hanushek and Rivkin. Teacher Quality. Available here.

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.

Math quiz on Kansas spending

The average Kansan is misinformed regarding Kansas school spending, and Kansas news media are to blame, writes Paul Waggoner of Hutchinson.

Math Quiz on Kansas Spending

By Paul Waggoner

Math questions, one would think, are very straight-forward and easy to answer. At least easy to guess the right answer in a simple multiple choice test. Such is not the case however with the average Kansan who follows state issues relying on the headlines in the Kansas press.

The reality of how poor a job the Kansas press is doing with numbers is found in a December 2015 SurveyUSA study of 500 plus registered voters in Kansas. This scientific study of voters’ knowledge of educational spending in Kansas was virtually ignored by the Kansas media. Most likely because its implications don’t fit the media narrative on education in this Year 5 of the Age of Brownback. Even worse, the poll was commissioned by a conservative think tank, the Kansas Policy Institute.

As to voter (mis) understanding this 15 question poll hit the jackpot. All the questions were multiple choice with only 4 options given.

Question #6 asked how much state funding do you think Kansas school districts receive per pupil? The correct answer is well over $7,000 per student. 39% of Kansas voters thought it was under $4,000, another 22% thought between $4,000 and $5,000. Only 7% of voters guessed properly.

The follow-up, Question #7, was how much total (federal/state/local) funding do you think Kansas school districts receive per pupil? The correct answer in 2015 was over $13,000 per pupil. Only 5% of registered Kansas voters got that one right. 40% thought the total was under $7,000, and 21% said $7,000 to $10,000 which were the two most inaccurate options!

At this point I was even wondering how the accepted wisdom is so far removed from the truth. So I went to ksde.org, the website of the Kansas State Department of Education, to verify the precise figures. At that website every school district in the state is listed.

What our local school districts spend is very close to the state averages. The Hutchinson USD 308 budget was over $60,000,000 in 2014 with 4,836 full-time students or $12,449 spent per pupil. 5 years earlier the USD 308 budget was $57 million, 5 years before that it was about $41 million.

The comparable figures for USD 313 Buhler are $12,360 per pupil in 2014 with a $26,300,000 budget that 5 years earlier was $22,200,00 and 5 years before that was $18,000,000. For USD 313 that meant students were educated for just $9,000 per pupil as recently as 2005.

Kansas school districts total spending is $2.0 billion higher now than just 10 years ago ($6 billion versus $4 billion). That is an incontrovertible fact. Which leads to two immediate questions: How can the Supreme court keep claiming the spending is constitutionally inadequate? And what exactly do taxpayers have to show for the extra $2,000,000,000 every year?

The reality of those numbers are nowhere in the publics’ consciousness currently. For instance, SurveyUSA question #8 was “over the last 5 years how much do you think total per pupil funding has changed?” The correct answer is that it is actually up 9.92%. But fully 47% of Kansas voters confidently said it had dropped over 5%! Another 15% were sure it had dropped but thought the percentage was smaller. Only 7% of voters knew that school spending was up “over 5%’.

The budget trajectory has changed and is on a much flatter curve than ever before. Taxpayers are mostly rejoicing, tax spenders (and their allies) are howling mad.

My revised school spending narrative is frankly the story of the entire Kansas budget (as can be easily accessed at budget.ks.gov “Governors Budget Report FY 2017”).

The state general fund budget first hit $1 billion in 1980 and grew consistently under Governors Carlin/Hayden/Finney at about a 6.5% annual rate.

Under Graves and Sebelius that accelerated growth rate continued until the 2008-09 recession when the state budget dropped dramatically for 1 year under Governor Parkinson. This made a cumulative annual growth average of around 3% for those three administrations.

Under Governor Brownback the general fund budget is still going up, but at a 5 year annual growth rate of 1.8%.

On February 20th one Hutchinson News columnist’s headline blasted the “Deliberate financial starving of the state of Kansas.” I see this as more of a diet, and I say it is about time.

The numbers on the state budget spending (and taxation) are readily available online. The execution of the plan for this new governmental trajectory leave something to be desired, but that is the topic for another day.

Paul Waggoner is a Hutchinson resident and business owner. He can be reached with comments or questions at [email protected]

Kansas Supreme Court judicial selection

Kansas progressives and Democrats oppose a judicial selection system that is used by U.S. Presidents, both Democrats and Republicans.

What is the substantive difference between these two systems?

A) A state’s chief executive appoints a person to be a judge on the state’s highest court. Then the state’s senate confirms or rejects.

B) A nation’s chief executive appoints a person to be a judge on the nation’s highest court. Then the nation’s senate confirms or rejects.

Perhaps there is a difference that I’m not smart enough to see. I’m open to persuasion. Until then, I agree with KU Law Professor Stephen Ware and his 2007 analysis of the way Kansas selects Supreme Court judges as compared to the other states.1 That analysis concludes that “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.”

Ware has made other powerful arguments in favor of discarding the system Kansas uses: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.”2

Judges, Ware says, make law, and that is a political matter: “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.”3

Kansas exhibits a pattern of selecting governors from alternate political parties.
Kansas exhibits a pattern of selecting governors from alternate political parties.
For Kansas progressives and Democrats to oppose Kansas adopting the same system that has enabled Barack Obama to appoint two liberal justices to the U.S. Supreme Court, with perhaps more to come — don’t they realize that Kansas will (likely) have a Democratic governor someday? As Clay Barker noted, for the last 50 years, no Kansas governor has been followed by a successor of the same party (except for Mark Parkinson filling the remainder of a term after Kathleen Sebelius resigned). If that pattern holds — and there’s no guarantee that it will — the next Kansas governor will be a Democrat, just three years from now.

Superficially, it doesn’t seem to make sense for Kansas Democrats to oppose the governor making judicial selections while supporting the President of the United States having the same power. It does make sense, however, when we realize that Kansas Democrats are comfortable with the state’s bar selecting the judicial nominees that the governor may consider. (Which gives truly useful and enjoyable bars a bad name.) Lawyers, especially lawyers that take an active role in politics, tend to be Democrats, and progressive Democrats at that. If the Kansas bar was dominated by constitutional conservatives, would Kansas Democrats feel the same?

I’m not claiming that the motives of conservative Kansas Republicans are pure. Will they change their stance on the desirability of the governor appointing Supreme Court judges if there is a Democratic governor? I don’t know, but I have a suspicion.

Defenders of the current Kansas system claim that the system is based on merit, not politics. To which we must note that this year the Kansas Supreme Court was reversed by the United States Supreme Court. It wasn’t even close, with justices voting eight to zero that the Kansas court was wrong in its application of the law. (The other Supreme Court justice said “I do not believe these cases should ever have been reviewed by the Supreme Court.)

  1. Ware, Stephen J., Selection to the Kansas Supreme Court. Fed-soc.org. Available at: http://www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.
  2. Ware, Stephen J., The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court (September 25, 2009). Kansas Journal of Law & Pubic Policy, Vol. 18, No. 3, p. 392, 2009. Available at SSRN: http://ssrn.com/abstract=1478660.
  3. Ware, Stephen J., Originalism, Balanced Legal Realism and Judicial Selection: A Case Study (August 3, 2012). Available at SSRN: http://ssrn.com/abstract=2129265.

Kansas Attorney General Derek Schmidt

Kansas Attorney General Derek Schmidt
Kansas Attorney General Derek Schmidt
Kansas Attorney General Derek Schmidt spoke to members and guests of the Wichita Pachyderm Club on January 22, 2106. He addressed cases before the Kansas and United States Supreme Courts, including the Wichita marijuana case and the Carr Brothers appeal. This is an audio presentation.

Ranzau petition to Kansas Supreme Court

A filing by a group seeking to recall a county commissioner declares “facts” that can’t possibly be known at this time.

Those hoping to recall Sedgwick County Commissioner Richard Ranzau have filed a petition with the Kansas Supreme Court seeking to overturn the finding of the Sedgwick County District Attorney. That finding was the petition did not meet the grounds and conditions proscribed in Kansas law.

(Many news headlines and reporting use phrases like “District Attorney blocks petition.” That’s not accurate. The DA simply ruled that the petition did not meet the legal requirements.)

In the filing, under a section title “Statement of Facts,” paragraph 2 starts with “It is the will of the electors of Sedgwick County’s District 4 to seek the removal of Richard Ranzau from office …”

I’d like to know how the petitioner knows the will of the electors (voters) of district 4, specifically that they want to remove Ranzau from office. Since August 2008, Ranzau has prevailed in all four elections regarding his current office. In each election the revealed preference — or “will” — of the voters is that they preferred Ranzau to the alternatives, both other Republicans in two primary elections, and Democrats in two general elections. Each election was contested by experienced politicians who had held offices including that of Sedgwick County Commissioner, Wichita City Council Member, Kansas State Representative, and Kansas State Senator.

The only fact we know so far is that there are 100 citizens of Sedgwick County (not just district 4 residents) who have signed up to become recall petition circulators. Should the recall petition be approved, these circulators would have to gather a large number of valid signatures in a short period of time. If that petitioning effort is successful, there will be an election. It is at that time — and only that time — that the electors (voters) of district 4 express their will regarding the recall of Richard Ranzau.

Kansas school fund balances

There is an update with data for a new year; click here.

Kansas school fund balances rose slightly this year, both in absolute dollars and dollars per pupil.

As Kansans debate school funding, as the Kansas Supreme Court considers ordering more school spending, and as school spending boosters insisting that school spending has been slashed, a fact remains constant: Kansas schools don’t spend all the money they’ve been given. Fund balances have been growing almost every year, including this year.

Fund balances are necessary for cash flow management. The issue is what levels of balances are necessary. Based on recent data from the Kansas State Department of Education, fund balances rose rapidly after 2008, and have remained largely level since 2011.

I’ve gathered data about unspent Kansas school funds and presented it as an interactive visualization. You may explore the data yourself by using the visualization. Click here to open the visualization in a new window. Data is from Kansas State Department of Education. Visualization created using Tableau Public.

Example from Kansas school fund balances visualization.
Example from Kansas school fund balances visualization.

Kansas Center for Economic Growth and the truth

Why can’t Kansas public school spending advocates — especially a former Kansas state budget director — tell the truth about schools and spending, wonders Dave Trabert of Kansas Policy Institute.

Kansas Center for Economic Growth abuses the truth on school funding … again

Dave Trabert, Kansas Policy Institute

Duane Goossen, former Kansas state budget director
Duane Goossen, former Kansas state budget director
The Kansas Center for Economic Growth and Duane Goossen steadfastly refuse to publicly debate school finance and state budget issues with us, as their work is so easily shown to be false, misleading and otherwise distorted (see here, here, here, and here for examples). Mr. Goossen’s most recent piece is another fine example of how they abuse the truth.

He has a table called State Aid and Enrollment that is sourced to page 60 of Kansas July Comparison Report, but much of the information in his table does not appear on page 60. The total amount of $4.059 billion is there and two of the smaller items but not the rest. A few items — KPERS payments, Local Option Budget Aid and Capital Outlay Aid — are close to what we found in other documents but not the $2.639 billion he calls General Classroom Aid. And you can’t find that anywhere because there is no such thing as “General Classroom Aid.

KCEG and other “just spend more” proponents often make reference to “classroom aid” in ways to make it appear that the Legislature is not providing enough “classroom aid” but here’s the dirty little secret you (and especially teachers) aren’t supposed to know: only local school boards and superintendents decide how much money is spent on instruction. The Kansas State Department of Education has an official definition of “Instruction” spending which is often used interchangeably with “classroom” but there is no official aid classification for “classroom.” Mr. Goossen and friends are just making it up for political purposes.

Under both the old school formula and the temporary block grant system, districts get several different types of aid but they alone decide how much of the multiple discretionary amounts received are used for Instruction, Administration, Student Support, Maintenance and other cost centers. Even Capital Outlay Aid (contrary to Goossen’s implication) can used for Instruction purposes (and is) as set forth in the KSDE Accounting Manual.

Here are a few more examples of the truth being tortured by Mr. Goossen:

  • “The Kansas Supreme Court ordered lawmakers to increase [equalization] aid …” Not true. The Supreme Court said the legislature could increase equalization funding or they could write a new equalization formula and not spend more money. Legislators chose to spend $109 million more. Even the District Court, which didn’t get much right about Gannon, acknowledged this point.
  • State Special Education Aid is shown as a decline of $6 million but it is really an increase of $46 million.  The original posting of the July Comparison Report didn’t include $52 million in Federal ARRA pass through but a former state budget director should know that the total was more than the amount listed for state aid. He also understated the increase in state aid by another $53 million for Federal ARRA money included in General State Aid.
  • KPERS is included in the amounts listed under block grants and while it has gone up, he says “… school districts must still pay the bill.”  That’s true, but some of that money goes for KPERS benefits of current employees, and local school boards chose to increase employment more than 8% over the last ten years while enrollment grew by just 4%. That forces money to be diverted from regular aid to pay the higher KPERS cost, which also happens when school boards choose to have district employees perform functions that could be done in the private sector.
  • Capital Improvement Aid helps some districts “… with bond payments for buildings but [does] nothing to cover enrollment increases.” That’s true, but again, Goossen fails to mention that district choices to construct new buildings … sometimes larger or sooner than needed … diverts money that could otherwise be used for general aid.
  • “State aid for classrooms has actually gone down…” That is a false statement because there is no such thing as “state aid for classrooms” but actual Instruction spending increased by $214 million or 7.3% between 2011 and 2014 even without counting a dollar of KPERS. Of course, Instruction spending could have gone up even more if districts had chosen to direct some of the increased spending on other operating areas to Instruction, chosen to operate other areas more efficiently and spent the savings on Instruction or used some of their unused aid from prior years instead of holding it in cash reserves.

Goossen says the block grant system is “not a recipe for creating world-class schools” as though that is some sort of revelation. The block grant system is only a temporary funding mechanism put in place to allow time to build a new student-focused funding system, replacing a dysfunctional, institution-focused system that most certainly was not a recipe for creating world-class schools.

Here’s what the old system produced after the injection of nearly $2 billion over the last ten years:

  • Only 32% of the 2015 graduating class who took the ACT test are considered college-ready in English, Reading, Math and Science. ACT test scores have barely changed.
  • Only 38% of 4th grade students are Proficient in Reading on the National Assessment of Educational Progress (NAEP), a test that the Kansas Department of Education declared to be valid and reliable in a November 1, 2011 press release.
  • Low Income 4th graders are almost 2 years’ worth of learning behind others in Math (NAEP).
  • Only 24% of Low Income 8th graders are Proficient in Math (NAEP) and at the current pace, it will take 240 years for them to catch up to other students, only 54% of whom were Proficient on the last exam.
  • 27% of students who graduated from Kansas high schools in 2013 and attended university in Kansas signed up for remedial training (Kansas Board of Regents); no data is available on students who went out of state or attended a private college.

It will always cost a lot of money to fund public education but it’s how the money is spent that makes a difference — not how much. For example, Instruction spending accounts for just 55% of total education spending; $2 billion and ten years ago it was 54%. Here’s another discouraging fact: enrollment increased by 4% over the last ten years, while classroom teacher employment increased by 5% and non-teacher employment increased by 10%.

Outcomes apparently don’t really matter to KCEG and others (including many school districts and their taxpayer-paid lawyers) who continue to say there was nothing wrong with the old system … it just needed more money! Just look at what happened when more money was poured into the system.

Scores barely changed while per-pupil spending jumped from $6,985 per pupil to an estimated $13,343 last year, which is $3,223 more per-pupil than if funding had been increased for inflation since 1998. Reading proficiency remains below 40% and Math Proficiency is still less than 50%.

This is not an indictment of the many good people working hard in schools but an indictment of the old funding system. It is no one’s fault that achievement is unacceptable but it is everyone’s responsibility to acknowledge that fact and work toward a funding mechanism that puts students and outcomes first and uses efficiency savings to drive more resources to instruction and increase pay for effective teachers.

Kansas school funding growing faster than inflation

Kansas school funding has been growing much faster inflation and enrollment, but for some, it will never be enough, and they will continue to use taxpayer money to press their monetary demands, writes Dave Trabert of Kansas Policy Institute.

Even by KASB standards, school operating spending is $3.9 billion ahead of inflation

By Dave Trabert

A recent blog post by the Kansas Association of School Boards (KASB) Associate Executive Director Mark Tallman says “Total school district funding is, in fact, at an all-time high, expected to top $6.1 billion this year” but “… the part of school funding available for day-to-day operating costs is not keeping up with inflation and enrollment.” There are several misleading aspects to his statement and the data does not support the intended message, but let’s first give credit for the courage to contradict education officials who say funding has been cut. Bravo!

KASB’s definition of operating costs does not comport with the official definition used by the Kansas Department of Education or the U.S. Department of Education1, but for the sake of argument, let’s say that it’s correct. Let’s also assume that their definition of current operating funding represents the amount needed to efficiently operate schools and achieve the required outcomes, even though the facts refute any such claim.

By increasing the KASB-defined operating spending for inflation (the calculation for 2006 is $6,928 times (191.41 ÷ 185.14) = $7,162), we find that schools received a lot more money each year than if KASB’s 2005 amount had been increased each year for inflation. The margin of difference is getting closer over the next two years (if one doesn’t count all of the funding), but funding will have exceeded inflation by almost $3.9 billion since 2005.

KASB uses a different methodology in their inflation analysis. They show prior years’ spending in 2014 inflation-adjusted (constant) dollars; i.e., $X spending in 2014 has the same buying power as $Y in prior years. That methodology is common for restating buying power but it is irrelevant to the question of whether schools are or have been adequately funded.

The Kansas Constitution says the legislature must make suitable provision for the finance of public education; it does not say that schools must be given whatever they want to spend or that efficient use of taxpayer money cannot be taken into account. The honest truth is that no one knows what schools need to achieve the necessary outcomes while making efficient use of taxpayer money, because no such analysis has ever been undertaken in Kansas. We do know, however, that every Legislative Post Audit has found schools to be operating inefficiently and school superintendents openly acknowledge that they choose to spend more than is necessary in many circumstances. We also know that school districts haven’t even spent all of the money they’ve received over the last ten years, as about $400 million has been used to increase operating cash reserves.

There may be ways to demonstrate that today’s funding has less buying power than a particular point in time but that doesn’t mean that each year’s funding didn’t keep up with inflation and enrollment — as shown above, per-pupil funding as defined by KASB was $3.9 billion more than an inflationary increase.

The gap is even greater for total funding, which would have been $6 billion less over the last ten years if per-pupil funding for the 2005 school year had been increased each year for inflation. School districts received large funding increases beginning in 2006 from a Supreme Court Montoy ruling based on a cost study that has since been abandoned by the Supreme Court in Gannon.

The Shawnee County District Court may believe that schools are not adequately funded, but they ignored the Kansas Supreme Court in arriving at what amounts to little more than a political perspective. School funding has been growing much faster inflation and enrollment, but for some, it will never be enough … and they will continue to use taxpayer money to fund KASB justifications (and attorneys) for their monetary demands.

 

1KSDE and the U.S. Department of Education say operating expenditures “…do not include equipment (700 object codes), Capital Outlay or Bond & Interest. [700 object codes include expenditures for acquiring fixed assets, including land or existing buildings; improvements of grounds; initial equipment; additional equipment; and replacement of equipment.]”  The KASB definition also excludes Food Service and employee retirement costs but they don’t disclose that their definition is not the official definition and it also does not comport with the Kansas Supreme Court, which says all funding sources, including retirement costs, should be considered as part of adequate funding.

As lawmakers, Kansas judges should be selected democratically

Kansas Judicial Center in snowWhile 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.

Prospects for Kansas

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.

Judicial panel used cherry-picked data in Gannon decision

From Kansas Policy Institute.

Judicial panel used cherry-picked data in Gannon decision

By David Dorsey

(w)e conclude that the Kansas K-12 school finance formula still stands as constitutionally inadequate by its failure to assure and implement adequate funding to meet and sustain a constitutionally adequate education as a matter of sound expert opinion from those with relevant and reliable expertise and experience with the Kansas K-12 school system.(emphasis added)

Thus is the opinion, filed December 30, 2014, from the Shawnee County District Court three-judge panel as tasked by the Kansas Supreme Court pursuant to their decision in Gannon v. Kansas in March of 2014.

We reported in a previous KPI blog that the unspecified underfunding of K-12 public education in Kansas identified in this decision is at least $548 million. The judges based their opinion on several categories of adequacy they deemed relevant to the case. One such category in the decision is entitled Adequacy As A Matter Of Student Performance (pp. 20-48). The judges included as its linchpin evidence an interview with Kansas City, Kansas USD 500 superintendent Dr. Cynthia Lane. Dr. Lane provided testimony regarding how a federal grant enabled Emerson Elementary, a USD 500 school, to significantly increase student performance.

In short, Emerson Elementary is a small K-5 school. Several years ago, it gained notoriety for being declared the lowest performing elementary school in Kansas. As such, it was awarded a School Improvement Grant (SIG) from KSDE, authorized by the No Child Left Behind law. The school was given nearly $3 million over a three-year period (2010-11 to 2012-13 school years) to improve state assessment test scores. Dr. Lane testified that “fewer than 30 percent” of the students met state standards in math and reading prior to receiving the grant. According to demographic data published by KSDE, Emerson has about 95% economically disadvantaged students. While Dr. Lane testified that Emerson is ethnically “about 50 percent African American and about 48 percent Hispanic,” KSDE reported that the ethnic breakdown is about two-thirds Hispanic, one-quarter African American and less than 10% white. She told the court that over the life of the grant Emerson’s students performed “on both the reading and math state assessment to have more than 85 percent … meeting or exceeding expectations just in the last three years. It’s a remarkable story.”

Apparently the court agreed, afforded to say:

Given the continuing grade advancement and migration upwards of K-12 schoolers during their school careers, it seems but obvious that for educational advancement, much less the maintenance of results accomplished prior with the earlier funding initiatives implemented, but now abandoned, that the revenue streams which supported those results in that period of favorable funding needed to be continued to be provided in order to properly educate the continuing stream of new faces going forward, either initially entering the school system or advancing in grade. No evidence or proffer of evidence supports otherwise. (pp. 39-40, emphasis not added)

Translated: More money = greater student achievement, and there is no evidence to the contrary.

I will now proffer contrary evidence, a much less remarkable story that should have been proffered in the original court case: Northwest Middle School.

The same year Emerson Elementary was awarded its SIG, another USD 500 school, Northwest Middle School, was awarded a similar grant with a higher amount of $4.77 million. Northwest has similar minority and economically disadvantaged populations to Emerson Elementary (just over half African American and just over one-third Hispanic and 98% low income). But the outcomes pursuant to the SIG were very much dissimilar, indeed.

The following table and the accompanying graph show how Northwest Middle School scored on the state reading and math assessments for the three years prior to receiving the SIG and during the three-year implementation of the grant.

Northwest Middle school from KPI 2015-01

As the graphics show, achievement at Northwest had an uptick in both math and reading the first year of the grant, but then fell off dramatically the following two years. To put their performance in perspective the following graphs compare Northwest to Rosedale Middle School (the USD 500 school most comparable to Northwest according to KSDE) and the USD 500 district as a whole.

Northwest and Rosedale from KPI 2015-01

In reading, Northwest underperformed both Rosedale (which did not get a SIG) and the district as a whole both prior to and after receiving the grant. The trend and gap between Northwest and Rosedale remained amazingly consistent throughout this period. The picture in math is a little different. Northwest students maintained a slight advantage over Rosedale throughout the grant period and nearly eliminated the gap with the district as a whole. However, the overall trend is downward, with just over 40% of the Northwest middle schoolers proficient in math as of the last recorded state assessments.

It is safe to say that in terms of achievement, that $4.77 million granted to Northwest Middle School in Kansas City, Kansas didn’t buy much. This is evidence that, once again, more money does not inherently make a difference in student outcomes. This nationwide study conducted by the Heritage Foundation supports that contention. Even Kansas’s own Legislative Post Audit says in this report (p. 107) that a correlation between increased funding and increased outcomes is inconclusive.

As a 20-year teaching veteran, I know it’s not the money that makes a difference in student achievement. It’s commitment by students, parents, teachers, principals and administrators to make it happen. Trying to quantify that in dollar terms is a fool’s errand. If the increase in education funding prescribed in the most recent Gannon decision were to become a reality, it would mean a nice raise for teachers and likely more administrators, but student outcomes would remain flat and achievement gaps would continue. Think of it as Montoy redux.

Clearly, the judges got it wrong. Let’s hope their decision gets overturned on appeal and an end is put to this seemingly endless carousel of education funding lawsuits. The citizens of Kansas deserve better.