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Back in November, I wrote about efforts to reform Kansas’s judicial-selection system. Kansas follows the Missouri Plan, which forces Governor Brownback to appoint judges from a slate handpicked by a bar-dominated nominating commission. These judges must later stand for retention elections. After the conservative takeover of the Kansas senate in August, efforts to repeal the Missouri Plan for appellate judges have picked up speed. State representative Lance Kinzer is pushing for the federal model of judicial selection, which would free Governor Brownback to appoint judges subject only to senate confirmation and later retention elections, while others would like to see appellate judicial elections.
Retiring Kansas Court of Appeals judge Christel Marquardt wants things to stay the same. As the Topeka Capital-Journal reports, she thinks that the Missouri plan “‘is by far’ the fairest way,” of selecting appellate judges, while the proposed reforms would overly politicize the judiciary and inflate money’s corrupting role in judicial selection. No system of judicial selection is perfect, but Judge Marquardt’s concerns about both politicization and money’s corrupting influence are misguided, dangerously masking how harmful the Missouri Plan can be.As my JCN colleague Carrie Severino has previously written, the Missouri Plan is the leading source of a politicized judiciary, ceding judicial selection to an unaccountable, lawyer-dominated nominating commission. Professor Brian Fitzpatrick has persuasivelydocumented that instead of removing politics from the judiciary, it masks it under the guise of merit selection, tilting judicial nominees overwhelmingly to the left. Carrieexplains that Professor Fitzpatrick found that under the Missouri Plan,“[f]or the nominees for whom campaign-donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.” This leftward tilt of the judiciary has been evident in Kansas, where the nominating commission passed over two prominent conservative candidates for the Court of Appeals, snubbing Governor Brownback in the process. Governor Brownback is not the only governor that has been burned by the Missouri Plan. As the Wall Street Journalreported at the time, Missouri’s nominating commission repeatedly jammed former Republican governor Matt Blunt, rigging their judicial recommendations in favor of trial lawyers. It got so bad that Governor Blunt even considered rejecting their recommendations altogether in favor of letting the commission decide. Judge Marquardt’s concern about money’s influence upon elections is also erroneous — even ignoring the fact that Kansas already provides for judicial elections for retention. Kansas recusal laws are an antidote to concerns about influence peddling, making it nearly impossible for moneyed interests to buy votes. Professor Chris Bonneau has also argued that there is no scholarly proof that judicial elections put justice up for sale, or otherwise influence judicial legitimacy, quality, or independence. Both judicial elections and the federal model of judicial selection would represent a significant improvement for Kansas, although I would personally prefer the federal model. As Carrie argued back in April: That structure [the federal model] has worked well at the federal level for more than 200 years, producing judges of the highest quality while forcing senate and presidential candidates to answer public questions about their judicial philosophy. In contrast, the current method of selection, the Missouri Plan, empowers an unaccountable commission of lawyers, diffusing decision-rights so that no one is truly responsible for the important act of choosing a judge.I wish Governor Brownback, Representative Kinzer, and other allies fighting for sensible judicial selection reform the best of luck. |
The Supreme Court is the highest court in Kansas. It consists of seven justices, each of whom is selected by the Governor. The Governor appoints from a list of three qualified individuals submitted by the Supreme Court Nominating Commission. After the first year in office, a justice is subject to a retention vote in the next general election. If a majority of electors vote to retain the justice, he or she remains in office for a term of six years. Justices are subject to a similar retention vote at the conclusion of each term. Kansas is the only state in U.S. that selects its state judges in this manner.
The justice who is senior in terms of continuous service is designated by the Constitution as the chief justice, unless he or she declines or resigns the position. The chief justice exercises the administrative authority of the court.
Justices of the Supreme Court ordinarily do not conduct trials. They decide an appealed case by reading the record of the trial and written briefs filed by the parties, and hearing oral arguments of lawyers. They research and review the law involved in the case and then write an opinion which is usually published in bound volumes.
Kansas has a judicial selection system that is unbalanced and provides a greater amount of control than is reasonable to the Bar. Confidence in our judicial system demands an open, transparent system where citizens who are politically accountable are responsible for the appointment process.
Dissatisfaction with the close interplay between political parties and judicial selections led to a series of reform efforts to transform judicial selection into a nonpartisan process. These efforts succeeded in 1958, when Kansas voters approved a constitutional amendment authorizing merit selection of Supreme Court justices. The amendment's success can be attributed to the intensive lobbying efforts of the Kansas Bar Association and the political scandal aptly titled the "triple play of 1956," in which the Governor and chief justice resigned their positions with the understanding that the Lieutenant Governor--who would become the Governor--would appoint the former governor as chief justice.
About half the states, including Kansas, use some variation of the so-called Missouri Plan, a process that originated in the 1940s, which gives broad control to licensed attorneys. Kansas voters should be pissed with the Missouri Plan because lawyers have successfully been placing liberal judges on the bench. Kansas gives its licensed lawyers an unusually powerful role in the selection of state Supreme Court justices.
This plan is supposed to result in the "nonpartisan" and "merit" selection of judges, but scholars who have studied the process have concluded that the commission selects judges based on the socio-economic interests of the attorneys and their clients. Attorneys are a special-interest group just like any other group that aggressively lobbies for the interests of its members. In Kansas, the commission has had no shame about selecting judges who make political contributions to Democratic candidates.
The merit plan for Supreme Court justices was later extended to the Court of Appeals and the District court, with individual districts having the option to move to merit selection or maintain partisan elections. The majority of judicial districts in Kansas have chosen merit selection. All of this because we couldn't just fix the loop hole one man decided to exploit?
Ask yourself, "Why should the lawyers have such extraordinary control over the selection of judges who will then rule on cases brought by the lawyers who gave them their jobs?" Nine other states allow their licensed attorneys to select some of the nominating commission members, but 41 states either give the lawyers no power in the initial selection of state Supreme Court justices or balance the lawyers' role with commissioners chosen by democratically elected public officials. We hear a lot of talk today about the need for an "independent" judiciary. We do need a state judiciary that is independent of the attorneys and their special interests, especially trial lawyers.
Number of Kansas Bar members by Congressional District
1st 1,041 Tim Huelskamp, 1st congressional district
2nd 2,207 Lynn Jenkins, 2nd congressional district
3rd 4,238 Kevin Yoder, 3rd congressional district
4th 1,791 Mike Pompeo, 4th congressional district
Total 9,277
To put this in perspective - 16 of the 20 judges come from Topeka, Kansas City and Olathe.
There is not 1 attorney in District #1 on the bench which means "The Big First," the district that encompasses 69 counties in western and central Kansas (more than half of the state), making it the 11th largest congressional district in the nation doesn't have a single representational member.
In district #4 which encompasses 11 counties including the largest city - Wichita, and Sedgwick is the 2nd largest county in the State has 1 (Tom Malone).
So the question then becomes how are the voters to be aware of the Judges in Topeka, when they have no one there? There are plenty of cases coming from the rest of the state to be heard before the court and Districting the Judgeships would only balance the talent pool throughout the state.
The People have no redress NOW!
Rules Adopted by the Supreme Court
Rules Relating to Judicial Conduct
Rule 608
Rules Relating to Judicial Conduct
Immunity
Complaints, reports, or testimony in the course of proceedings under these rules shall be deemed to be made in the course of judicial proceedings. Commission counsel and members of the commission, commission staff, either panel and panel staff shall be absolutely immune from suit for all conduct in the course of their official duties. All other participants shall be entitled to all rights, privileges, and immunities afforded to participants in actions filed in the courts of this state.
[History: Am. effective January 8, 1979; Am. effective May 1, 1999.]
Effective Date: 1/8/1979
Article 32. COMMISSION ON JUDICIAL PERFORMANCE
20-3204. Same; surveys; performance standards; plans and procedures; public recommendations; adoption of rules; immunity; indemnification. (a) The commission shall, with the aid of professionals where appropriate:
(1) Conduct surveys of such persons as the commission determines to be appropriate who have had sufficient experience with a judge or justice to form an opinion about the performance of the judge or justice, such as attorneys, litigants, jurors, witnesses, court staff and others. The surveys shall be dispersed, collected and tabulated by an independent organization or in any other manner that insures confidentiality. The surveys shall ask those surveyed to evaluate the judges and justices on such judge's or justice's ability, integrity, impartiality, communication skills, professionalism, temperament and administrative capacity suitable to the jurisdiction and level of court;
(2) develop clear, measurable performance standards upon which the survey questions are based;
(3) develop dissemination plans that:
(A) Protect confidentiality when the judicial performance evaluation is used only for self-improvement;
(B) make the judicial performance evaluation results widely available when they are to be used to assist voters in evaluating the performance of judges and justices subject to retention elections; and
(C) make public recommendations regarding whether or not to retain judges and justices subject to retention elections;
(4) develop a procedure for judges and justices to receive and respond to survey results before such results are made public;
(5) establish a mechanism to incorporate evaluation results in designing judicial education programs; and
(6) adopt rules for implementation of the judicial performance evaluation process, subject to approval by the Kansas supreme court.
(b) The supreme court, the Kansas judicial council, the commission on judicial performance, and the staff or any committee of the commission shall be immune from suit and liability in any civil action for any act, error or omission occurring within the scope of their official duties pursuant to article 32 of chapter 20 of the Kansas Statutes Annotated, and amendments thereto.
(c) Any agent under contract with the commission on judicial performance shall be indemnified and held harmless by the state in any cause of action arising out of such agent's use of information provided by the state within the scope of their contractual duties. Any such agent shall not be indemnified or held harmless by the state in any cause of action arising out of such agent's intentional or negligent acts.
History: L. 2006, ch. 195, § 4; L. 2008, ch. 145, § 3; May 22.
Article 53. - MISCELLANEOUS PROVISIONS
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72-53,104. Drug abuse, referral of pupils for assistance; immunity from civil liability. No school district, educational cooperative, interlocal educational agency or state accredited nonpublic school, no governing authority thereof, no member of any such governing authority, and no officer or employee of any school district, educational cooperative, interlocal educational agency or accredited nonpublic school shall be subject to any civil liability for any statement, report or action taken in assisting, or referring for assistance to any medical, treatment or social service agency or facility, any pupil reasonably believed to be abusing or incapacitated by the use of alcohol or other drugs unless such assistance or referral was made in bad faith or with malicious purpose. The same immunity from liability shall attach with respect to participation in any administrative or judicial proceeding resulting from any such assistance or referral.
History: L. 1984, ch. 304, § 1; July 1.
Article 23. - REVISED KANSAS JUVENILE JUSTICE CODE
38-2307. Court-appointed special advocate; immunity from liability; supreme court rules. (a) In addition to the attorney appointed pursuant to K.S.A. 2011 Supp. 38-2306, and amendments thereto, the court at any stage of a proceeding pursuant to this code may appoint a volunteer court-appointed special advocate for a juvenile who shall serve until discharged by the court and whose primary duties shall be to advocate the best interests of the juvenile and assist the juvenile in obtaining a permanent, safe and appropriate placement. The court-appointed special advocate shall have such qualifications and perform such specific duties and responsibilities as prescribed by rule of the supreme court.
(b) Any person participating in a judicial proceeding as a court-appointed special advocate shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any civil liability that otherwise might be incurred or imposed.
(c) The supreme court shall promulgate rules governing court-appointed special advocate programs related to proceedings in the district courts pursuant to this code.
Kansas Bill of Rights
2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.Article Two: Legislative
1: Legislative power. The legislative power of this state shall be vested in a house of representatives and senate.
20: Enacting clause of bills; laws enacted only by bill. The enacting clause of all bills shall be "Be it enacted by the Legislature of the State of Kansas:". No law shall be enacted except by bill.
You are either going to be guilty of something or you are going to be doing something illegal or corrupt when needing immunity. This is not in the Constitution for the Judiciary, nor is it something we need in a civil society!
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