October 25, 2014

State Supreme Court selection process works

Lawton R. Nuss
Guest Columnist
Last year several legislators crafted a proposal for changing the constitutional process chosen by the people of Kansas for selecting Supreme Court justices.  These legislators sought endorsements by the Kansas Bar Association and the Kansas District Judges Association (KDJA).
According to several sources, the endorsements would induce the Legislature to give judicial branch employees their first pay raise in more than 4 years.  I told our 1500 employees that while the justices supported the pay raises, we opposed the trade.  Later one of the crafting legislators publicly denied any linkage between the overdue pay raises and selection of justices and demanded my apology.
Recently one of these legislators advanced a new proposal.  Linking money to other court issues can no longer be denied.  Rather, it is glaring.
Instead of pay raises, this time legislative money is being offered to keep all Kansas courts open after July 1 – in direct exchange for some important restructuring of the judicial branch.  More specifically, the money would be given if the KDJA now endorsed the “package deal.”  The package includes changing the statewide unified court system in two fundamental ways.
First, it allows the chief judge in each of Kansas’ 31 judicial districts to submit and control his or her own budget.  Second, it allows the judges in each judicial district to choose their own chief judge.  The Supreme Court has exclusively exercised the authority for both actions since at least the late 1970’s after a constitutional amendment.
All 31 chief judges – the ones most directly affected by the decentralizing budget provision – oppose it.  Additionally, many prefer the Supreme Court’s traditional chief judge selection process, where for almost 40 years the Court has sought input from all judges and employees working closely with them before making the appointment.  Chief judges and justices alike ask, “What needs fixing?”
One packaging legislator informed the KDJA that without a positive statement about the entire package, it would fail.  The money for keeping the courts open would then be lost.  And no other legislative revenue proposal for keeping courts open was planned.  In other words, no endorsement means closed courts.  So while disagreeing with a significant part of the package, the executive committee concluded, “The KDJA can accept [it], because the courts of Kansas will be allowed to remain open for business.”  The Kansas Senate approved it a few hours later.
The Supreme Court strongly opposes the package – for reasons that should be clear.  Most objectionable is the diffusion of the unified court system’s centralized authority in exchange for money to keep Kansas courts open.
Some argue this legislative action violates the people’s constitution.  The 1968 Legislature’s “Citizens’ Committee” recommended all the various courts be unified, modernized and administered by one central authority.  This recommendation was followed by a 1972 statewide election in which Kansans voted to add this language to their constitution:  “The supreme court shall have general administrative authority over all courts in this state.”  Acknowledging this mandate for unification and modernization, a later committee chaired by Edward Arn – former Attorney General, Supreme Court justice, and two-term Republican Governor – specifically recommended one budget for the entire judicial branch.
I express no opinion on the constitutionality of the package.  Because if it is challenged in a lawsuit, the Supreme Court may need to answer that question.
But as the package moves through the House of Representatives, all Kansans should ask themselves at least two questions:
First, is this package true to the will of the people when they voted to change their constitution and place all administrative authority under the Supreme Court and to eventually unify all Kansas courts??
Second, if Kansans start down the road where judges feel compelled to help bargain away the Court’s authority, where does that road end?  Will otherwise fair and impartial judges be asked to decide court cases the way some legislators want them to be decided – in exchange for money to keep the courts open for the people of Kansas they all are supposed to be serving?
Lawton R. Nuss is a Salina native and a fourth-generation Kansan.  He has served on the Kansas Supreme Court since 2002 and as chief justice since 2010.

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