Voice For Liberty

Tag: Kansas Supreme Court

  • Disgraceful decision will hurt Kansas

    This is a reprise of a January 10, 2005 column, which is worthwhile to read again.

    Disgraceful Decision Will Hurt Kansas
    by Karl Peterjohn, Executive Director, Kansas Taxpayers Network

    The Kansas Supreme Court’s school finance decision is deeply flawed both in substance and in procedure. This five page judicial edict (www.kscourts.org see case no. 92,032) announced January 3 is designed to pressure the legislature into voting for more spending for public schools without saying by how much. Many tax and spend advocates are now claiming the court is requiring a tax hike, but no such specific language is contained within this decision.

    This claim is supposedly based upon language contained within the Kansas Constitution and various statutes enacted in Kansas. This Constitution itself is unchanged since the 1994 Kansas Supreme Court decision that said the school finance system was constitutional. At that time, state school spending was almost $700 million a year less than it is today. This decision is inconsistent with the 1994 case and the school spending facts between 1994 and now.

    Neither this legal edict or any language within our state constitution suggests whether increased school spending of four percent or fourteen percent or forty four percent more will make anything constitutional. The only positive for Kansas taxpayers in this ruling was the court’s decision to keep this case out of judicial activist Terry Bullock’s courtroom and Bullock’s explicit billion dollar spending and tax edict.

    Plaintiff and trial attorneys for the school districts that brought this lawsuit are already claiming that a billion dollars in additional state spending is required. The leading plaintiff attorney is Alan Rupe who has been involved in all of the school finance lawsuits in Kansas going back to the 1980’s and has been repeating this claim. Ironically, the Augenblick and Myer study (A&M) that the plaintiffs rely upon in their lawsuit uses a much smaller figure. The actual A&M report, which is often discussed but seldom actually quoted says, “we are suggesting that total (public school) spending needs to increase by $229 million,” (page ES-4).

    So the court came up with a judicial edict that said state spending on public schools was inadequate without saying by how much. The court went on to say that some unspecified increase in spending might not be enough to make it constitutional either. This is a strong indication on how the rule of law in Kansas is being replaced by the rule of a new super-legislature that consists of seven black robed lawyers. It is interesting to note that 57 percent of this court/super legislature, or more than twice the statewide average of 26.8 percent of registered voters in Kansas, are registered Democrats according to a check of public records.

    The Kansas Supreme Court managed to come up with this ruling despite a lack of evidence in any of this litigation that Kansas spends less per pupil on public schools than our neighboring states. In fact, anyone who wants to check the federal government’s figures will see that Kansas spends more than our surrounding states despite having lower income than the national average. In some of these surveys Nebraska is ranked as spending as much or slightly more than Kansas but all of the other neighboring states get by with much less government school spending. A couple of days after this decision was released a national survey by Education Week confirmed that the government school system in Kansas is adequately funded. Kansas received a “B” grade on this scorecard for funding (see www.edweek.org).

    A few days earlier the latest state data came out showing that Kansas’ average spending grew 3.8 percent in 2003-04 or $341 per pupil to average of $9,235. In 2004-05 the schools have budgeted school spending to grow by 10 percent, breaking the $10,000 per pupil mark. The average per pupil (FTE) in Kansas will have $10,162 spent during 2004-05 according to this most recent Kansas public school budget data.

    However, the court’s unsigned and non-final edict lacked many of the important characteristics of judicial rulings. This edict was unsigned by anyone and news articles claim that such an edict must be unanimous to be issued this way by the court. Of course, this is not guaranteed as a final decision either. So this decision is vague concerning the state’s constitutional language and leaves important legal issues unspecified beyond a general decision that more spending is required with the court positioning itself to second guess the legislature’s after first adjournment and April 12.

    Last month the court was narrowly and bitterly divided when it overruled its own 2001 decision by a 4-to-3 margin on the constitutionality of the Kansas death penalty. At least in that decision, Kansans were able to find out where the judges actually stood and there was a signed opinion.

    In theory Kansas voters are supposed to have a say on judicial positions. However, since judicial retention elections were established in 1958 in Kansas, not a single appellate or supreme court member has ever lost their position after a retention election. These judicial appointments are almost as good as getting an explicitly lifetime federal judicial appointment. The pay and pension perks are similar and only slightly smaller too. Four of the Kansas Supreme Court judges had judicial retention votes in 2004 and will continue on the court for terms for at least six more years assuming that none resign or leave the court for other reasons.

    The basis for this government school finance decision is the court’s vague position on what this constitutional language, “The legislature shall make suitable provision for finance of the educational interests of the state,” means. It is very clear that the Kansas Constitution does not mean that the judiciary system in Kansas should try to make a mess out of Kansas schools like federal judge Clark did in the Kansas City, Missouri school system beginning in the 1980’s and that continued for years.

  • Ethics Require Two Recusals In School Finance Lawsuit

    Thank you to Karl Peterjohn for your insight into the ethical mess that is our Kansas Supreme Court.

    Ethics Require Two Recusals In School Finance Lawsuit
    By Karl Peterjohn, Executive Director Kansas Taxpayers Network

    Would you want to go to court and face a judge who used to serve as legal counsel for your courtroom opponent? That is one of the ethics challenges facing the state in trying to fight off the $1 billion school finance lawsuit in front of the Kansas Supreme Court. This court heard oral arguments again May 11 in this case. There are 15 school districts spending millions of dollars promoting this lengthy lawsuit against the state and its taxpayers.

    In addition to this ethical challenge is the fact that the governor’s chief of staff is married to another judge on the Kansas Supreme Court. Would you like to go to court after being sued and face a judge whose spouse is the chief of staff to the person who is leading the challenge against you?

    Governor Sebelius has been vocal in blasting the legislature’s very expensive increase of $140 million in state spending for public schools during this year’s legislative session. Sebelius said this massive spending hike was inadequate.

    The governor did play Hamlet by not signing or vetoing the school finance bill into law and sending it to the Kansas Supreme Court. Governor Sebelius issued a news release blasting the legislature for being excessively stingy in raising spending for public schools and joined the 15 school districts in advocating higher taxes and spending.

    The irony is the fact that the legislature’s spending increase was the largest annual increase during the Sebelius administration. Other legislators said that the $140 million increase was the largest this century. This was certainly one of the largest spending hikes since the current formula was created in 1992.

    If you were being sued, and as a taxpayer you are, would you like to face Justice Lawton Nuss, who used to represent your legal challenger, and Justice Don Allegrucci, whose wife is the governor’s chief of staff in this $1 billion case being heard in the Kansas Supreme Court? Nuss was in the law firm that represents the lead plaintiff, the Salina public school district, until he joined the court in October 2002.

    Since Justice Gernon’s April death there are now only six members of this court. Two of these judges need to recuse themselves for ethics problems unless we want Kansas legal ethics to become an oxymoron.

    School district attorney Alan Rupe has criticized these ethical issues as being “ridiculous.” He has also publicly discussed the fact that this lawsuit involves him suing his ex-wife Carol Rupe who is one of the members of the state board of education. Litigation involving ex-spouses, former law firms, and high level state colleagues is not the way to resolve important public policy issues like Kansas school finance.

    The average Kansan is not familiar with the judicial canon that says, “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment.” This second canon also says that judges shall, “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The average Kansan does know right from wrong and having judges with ties to one side of a lawsuit is an insult to fairness and will lead to a tainted decision if these judges participate. In fact, the court’s January 3, 2005 is already tainted by these two judges’ participation in that preliminary decision in the school finance lawsuit.

    The school districts are now using lawsuits to try and raise taxes instead of going through the legislature to raise taxes like everyone else. This has created the odious position that the taxpayer funded school districts are using tax funds to sue the state that is using tax funds to defend itself. The only guarantee in this case is that taxpayers will be the loser. If the judges who are not in compliance with their own judicial ethics rules continue in this case, the result will be a travesty of justice and a black eye for the entire legal profession in this state.

  • Ethics Require Recusal in School Finance Lawsuit

    We should be thankful that there are people like Karl Peterjohn to tell us of things like the conflict of interest he reports in this article. An important question we should be asking is why our newspapers and other news media in Kansas have not reported this.

    Ethics Require Recusal in School Finance Lawsuit
    By Karl Peterjohn, Executive Director of Kansas Taxpayers Network

    The Kansas Supreme Court will hear oral arguments again in the school finance lawsuit brought against the state by 15 Kansas school districts. The May 11 oral arguments will eventually be followed by a written decision by the court.

    On January 3, 2005 the court delivered an unsigned 3 1/2 page edict that created a fair amount of head scratching at the statehouse over what exactly the court meant at that time. Now that the court has shrunk with the death of one judge, Justice Gernon, the Kansas Supreme Court’s six remaining members will be deciding this case. However, there is a problem with one of the judges.

    The Kansas Supreme Court’s second canon of rules requires that its members, “shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

    This rule goes on to state, “A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.” These are important principles for the administration of justice in this state.

    These rules bring us to Justice Don Allegrucci, a long time member of the Kansas Supreme Court who needs to recuse himself from this case because of his family situation. Justice Allegrucci’s wife Joyce is Governor Sebelius’ Chief of Staff. His son, Scott, has until recently been a high level appointed official in the state Department of Commerce.

    Governor Sebelius’ position on the school finance law is clear. April 5 she said, “I believe the legislature’s school funding plan is neither responsible nor sustainable.” Governor Sebelius criticized the legislature for not increasing state public school spending by more than the $140 million approved by the 2005 legislature. Sebelius has clearly sided with the plaintiff’s position in this lawsuit. That is fine in a political, public policy debate but is problematic with her chief of staff’s husband being on the court where this case is being litigated. Judge Allegrucci needs to recuse himself from this lawsuit.

    Governor Sebelius is still hoping to get her package of proposed property, income, and sales tax hikes enacted into law so that state spending will begin growing faster. This is in addition to the rapid 7.3 percent increase in state spending that was approved by the 2005 legislature. The legislature’s budget, which largely followed the governor’s guidelines, puts this state within a few million of having the first $5 billion General Fund budget. This would be another state spending record in addition to having the first All Funds state budget that exceeds $11 billion too.

    Justice Allegrucci is no stranger to politics either. In 1978 Allegrucci was the unsuccessful Democratic candidate for the Kansas fifth district congressional seat. That is why the complaint by the Kansas Supreme Court in their January decision complaining about statehouse politics was laughable. While everyone admits to politics at the statehouse there is certainly more than a significant amount of politics, albeit conducted largely outside of public view, when it comes to the courts and judicial appointments dominated by the Kansas bar and the appointment committee dominated by members of the bar.

    The family ties that Justice Allegrucci has to the Sebelius administration indicate that he should recuse himself in the name of impartiality from the school finance litigation as called out by the court’s own canon and rules. Justice Allegrucci’s continued participation in this school finance lawsuit raises a host of troubling ethical problems about judicial impartiality with his family ties to Governor Sebelius’ administration.