This is a really strange election year. We all know what’s happening nationally — it’s Trump v Clinton and the Senate’s up for grabs. But it’s an even weirder election year for judges in Kansas.
It’s a retention election, which means it’s not two candidates squaring off against each other, instead it’s voters deciding whether they want to keep a justice on their state Supreme Court. Yes or no, up or down.
A bunch of states use retention elections and for decades they’ve been uneventful, low key affairs. No big money, no negative ads. And every time Kansans have had they the choice, they’ve voted to keep all of their judges on the court. Apparently they like them. And that means up until 2016 no Kansas Supreme Court justice has ever been kicked off the bench.
But this election year the script’s been thrown out. And it’s totally possible that the Kansas Supreme Court could completely change.
In this, the fourth part in our series on a Fair Fight for a Fair Court, we’re going to Kansas, where voters in the state will decide whether or not to keep five of the seven justices on their state Supreme Court.
Reporter Ashley Cleek has our story.
It’s a rainy Tuesday night in the small town of Hutchinson. A few hundred people pack into the auditorium at Hutchinson Community College to see the Kansas Supreme Court…hold court
The honorable Justices of the Supreme Court, hear ye hear ye, hear ye….
The audience quietly stands as the justices slowly walk out in their robes and sit on a raised platform, draped in black. It looks a little goofy, like a community theatre production of a trial. But this court isn’t staged — these are real oral arguments before Kansas’ highest court.
The docket for Tuesday October 4th 2016 consists of two cases, appeal number number 111282 the State of Kansas versus Gerald Cleverly.
Megan Storie sits in the second row of the auditorium. She says she’s wanted to be a lawyer since she was little, specifically a criminal prosecutor.
STORIE: This is something I’m really passionate about. I love law and anything to do with it.
Storie’s a criminal justice major. She’s got long, curly brown hair and a big smile. She’s involved in so many things on campus that she color codes her day planner. So when her professor announced that the Kansas Supreme Court was coming to Hutchinson, she planned her schedule around it
During the oral arguments, Storie takes pages and pages of notes.
STORIE: Yeah, I am like writing it all down, cause I’m like, I know this stuff from class.
The hearing lasts around two hours. It’s dark as Storie walks back to her dorm room. She says the court session wasn’t nearly as intense as she thought would be.
STORIE: I thought it would be a little more like a few good men with Tom Cruise…. Where he’s like, ‘You can’t handle the truth…’
Instead, she says, the hearing was respectful — the justices cracked some dad jokes — but mostly it was technical and academic.
But even after she’s seen the justices and heard the court deliberate, Storie’s says she’s still not sure how she’ll vote in the upcoming election …. whether she’ll vote to keep all five judges on the ballot or kick them off the bench. She’s not totally sure how she should even evaluate the justices.
STORIE: I would say I would research their values, but when it comes to the law, they need to set aside their values. So, that’s kind of a difficult question — what to research.
There is very little information about the Supreme Court justices in Kansas — or across the country for that matter. And even someone who loves the law as much as Storie isn’t going to read a bunch of decisions in order to get a snapshot of the thousands of cases the justices have ruled on.
The Kansas Supreme Court’s been doing these public appearances for a few years now — to show the people of Kansas what they do, how they work.
But this year the stakes are much higher.
This is the first election where there’s been a real campaign to oust four of the justices on the Kansas Supreme Court — including Chief Justice Lawton Nuss. Ethically, the justices can’t campaign, so these public appearances are their only chance to show the people who they are. I talked to Nuss at a local Holiday Inn on his way to the oral arguments.
NUSS: We cannot just sit back, otherwise there will be no contest for this. What we do will not be known to the general public and people will go into the voting booth knowing only what our opposition has said about us. And if they want to make the proper vote they need to be informed as to what is going on. Then if they vote to get rid of Lawton Nuss then that’s democracy at work.
So what is their opposition saying about them? We’ll find out after the break…
Kansas chooses its Supreme Court by a system known as merit selection.
The way it works is: whenever a spot opens up, lawyers all over the state apply to be a Supreme Court justice. Then a nominating commission sifts through all the applications and chooses three candidates, and from those three — the governor picks a new justice for the Kansas Supreme Court. Then, every six years, Kansans vote — yes or no — keep the judge on the bench or kick him off.
So far, no Supreme Court justice has ever been voted off.
This year, five judges are up for a vote. And this year is different. This year there are groups actively campaigning against four of the justices on the ballot. They say they want to keep one of the judges — the newest one — who was recently appointed by Governor Sam Brownback — and oust the other four.
GUTHRIE: I have to apologize for the way the place looks.
One of the groups is Kansans for Life, a pro-life group in Wichita.
The backroom of their small office smells like cardboard. There are boxes everywhere — stacks of mailers, door-hangers, postcards, signs.
Susan Guthrie, the office admin, holds up a glossy yard sign with a big yellow gavel on it. It says…
GUTHRIE: Vote No on Activist Judges…
In the coming weeks, Kansans for Life plan to make thousands of calls and distribute around 200,000 door-hangers urging people to vote no on four of the five justices.
David Gittrich is one of the leaders of Kansans for Life. He’s been campaigning to end abortion for more than 35 years and he thinks the current justices on the Kansas Supreme Court are too liberal.
GITTRICH: Well, every law that we pass in Kansas, which has been significant, ends up in courts. They all go to court. And so if all of our bills are going to end up in court, then we at least should make sure that we have a fair hearing in court.
Last year, Kansas was the first state to pass a law that criminalizes a common second trimester abortion procedure. And just like that Gittrich said, it was quickly challenged in court.
The Kansas Supreme Court has yet to hear the case, but Gittrich believes a majority of the current justices will likely vote against it.
In addition to their vote-no campaign, Kansans for Life would also like to see Kansas change the way it selects judges. Gittrich prefers elections.
GITTRICH: If we had open elections, I am pretty sure every member of the courts would be conservative and think pro-life was a good thing, because the people of Kansas think pro-life is a good thing.
Bills that would change the way the Supreme Court is selected in Kansas have been floated by the Legislature. None have passed.
Governor Brownback says he isn’t taking a position on the upcoming retention election, but in the past he’s supported changing the way justices are appointed and attacked the court for some of their decisions.
Two years ago, when Brownback was running for re-election, his campaign sponsored an ad highlighting a horrible murder case that happened in Wichita.
BROWNBACK AD: Remember the Carr brothers? Five savage murders. Caught. Prosecuted. Death Row. Then Liberal Judges in Topeka changed that….
Nearly everyone in Kansas knows about the Carr brothers case. The two brothers who committed the brutal murders were found guilty and sentenced to death in 2002. Then, in 2014, the Kansas Supreme Court reversed the brothers’ death sentences citing problems in the trial court’s procedure. The case was appealed to the U.S. Supreme Court, and that court upheld the brothers’ death sentences and came down strongly against the Kansas Supreme Court.
And for one group in Kansas, the Carr decision by the Kansas Supreme Court is the clearest reason to vote four of the justices out.
JAMES: To have the Kansas Supreme Court overturn it 6 to 1 really, pretty much I would say brought the families to their knees.
That’s Amy James — James was the girlfriend of one of the men killed by the Carr brothers. She’s sat through years of trials and appeals. James has bright blue eyes that flood red when she talks about the case.
In 2016, the U.S. Supreme Court, heard the case and that court upheld the brothers’ death sentences and came down strongly against the Kansas Supreme Court.
Now, James is the spokesperson of Kansans for Justice, a group of family members and friends of the Carr brothers’ victims that is pushing for Kansans to vote no on retention.
JAMES: If you have a justice that is not doing their job. How do you remove them? This is the only way.
James says the Carr brothers case is proof that some of the justices on the Kansas Supreme Court are against the death penalty and are trying to get rid of it by reversing cases on technicalities. This retention vote, James says, is the only way to for Kansans to show the justices they disagree.
JAMES: I think our goal is to send a message to the Kansas Supreme Court to say, ‘You have to make the right decisions.’
BANNON: I think this dynamic of targeting judges for decisions they’ve made on the bench and calling for them to be held quote-unquote accountable can be really dangerous in terms of what it means for how judges are going to be actually approaching cases and public confidence that our court system is functioning fairly.
Alicia Bannon is the senior counsel for the Democracy Program at the Brennan Center She’s been watching judicial elections across the country for years, and she’s seen them become more combative and expensive.
Bannon points to increased spending — much of it dark, untraceable money — that’s flowing into judicial elections. In Kansas, because of a loophole in financial disclosure laws none of the groups campaigning for or against the justices have to report how much money they’re spending or who’s funding their campaigns. Kansans say this is the first year they’ve seen yard signs — urging neighbors to vote yes or no. There are mailers and TV ads for and against the court. And Bannon says voters should be concerned.
BANNON: It’s essentially created an arms races, where you have a lot of money going in and interest groups basically trying to shape who’s sitting on the courts and the decision that the courts are making. It doesn’t take all that much money to make a big difference in these elections. I think a lot of groups have viewed it as a way to have a significant policy impact in a state.
While feelings about abortion or the death penalty are at the center of the campaigns to remove the justices, some people in Kansas say this election is actually about something else entirely.
SECRETARY: Her secretary’s office is the one-two-fifth door on the right.
Shelly Kiblinger is the superintendent of Hutchinson Public Schools. Kiblinger thinks the issues being discussed in the run up to this retention election — abortion and the death penalty — are red herrings.
KIBLINGER: You know in some cases maybe people want to make the justices the scapegoat for some reason this year for things they are unhappy with.
Kiblinger’s been in an education a long time, and she knows the issues facing her district and the state.
Kiblinger thinks the real motivation to remove four of the justices is an ongoing battle between the legislature, the governor and the courts over education funding.
For years, the Kansas Supreme Court has ordered the legislature to spend more money on public schools. Kiblinger believes the governor and some legislators want to unseat the four justices up for retention in hopes that new justices — ultimately selected by the governor — would side with them on school funding.
Kiblinger’s school district is one of the plaintiffs in the funding case and she feels the state supreme court is the last barrier protecting schools like hers from going under.
KIBLINGER: I think if we were to see a substantial shift in the makeup of the court, that it would be highly likely that school funding litigation would really take a turn. I think the face of public education in the state of Kansas would never be the same again.
In this cacophony of voices and campaigns, the justices remain silent. Because of the canons of judicial ethics, the justices can’t campaign. They can’t say ‘vote for me’ or publicly take positions on issues.
They can give speeches at Rotary clubs and talk to people after public hearings, like those oral arguments at the Hutchinson Community College. Chief Justice Lawton Nuss, who’s facing his own retention election this year, says it’s a good thing judges can’t campaign.
NUSS: The United States Supreme Court said, judges need to be indifferent to popularity. They are not politicians, they don’t do what the people want, cause what the people want can change from week to week, month to month, year to year. The way I look at it is, the people have told me what they want in their constitution.
Nuss is a measured man. He has a bushy salt and pepper mustache that he refers to as a ‘cowboy’ moustache. His voice is calm, his answers short.
He says he’s watched as courts across the country have faced tough political campaigns. He believes these attempts to unseat judges on state supreme courts are an effort to influence the courts nationwide, to sway the courts in one direction. And so he’s speaking out, as much as he can, in the run up to this election.
Nuss couldn’t talk about school funding or the Carr Brothers decision. But he said, in his time on the bench, he has made thousands of decisions, and he understands that many people across the state are angry over one decision or another
NUSS: We make decisions that we don’t like to make — and there may be one case out there that nobody else in Kansas was concerned about — except for the person who lost or that person’s friends or a company that did not like a decision — and they may go into the voting booth and say Lawton Nuss wrote that decision for the court. He just is wrong and I am going to vote him out because of that, well that’s democracy in Kansas.
For Life of the Law, I’m Ashley Cleek
Courting Voters was reported by Ashley Cleek and edited by myself with sound design and production by Shani Aviram. Special Thanks to Hutchinson Community College and Lisa Taylor at the Kansas Supreme Court, and to Professor James Gibson of the American University for his scholarly advice. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain. Howard Gelman was our engineer.
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Next on Life of the Law… PART 5 and the final episode in our Fair Fight for a Fair Court series.
I’m Nancy Mullane. Thanks for listening.