Archive for Monday, September 26, 2005

Conservative plans could rein in court

Legislators may try to teach justices lesson following education friction

September 26, 2005


— Legislators were handed the hot end of the branding iron this summer when the Kansas Supreme Court told them to spend more money on education. Come January, lawmakers are going to remember who blistered their fingers.

Many legislators, especially conservative Republicans, were furious when justices ordered them to find an extra $143 million for schools, forcing a special session. While efforts to rein in the court failed then because House Republicans didn't have the votes, the issue remains alive in the minds of many.

Three proposed constitutional amendments are floating, one to require Senate confirmation of Supreme Court nominees and two others to keep judicial hands off school funding.

Senate Majority Leader Derek Schmidt, R-Independence, said judicial confirmation awaits action in his chamber when the lawmakers return Jan. 9. Like any proposed constitutional change, it needs a two-thirds legislative vote and then ratification by voters in a statewide election.

"It's taking a step to ensure that the public continues to sees the court as a legitimate institution. It goes to the question that is raised in coffee shops: 'Who are these seven people and why do they get to decide?'" Schmidt said.

Democratic Gov. Kathleen Sebelius appointed two justices and could appoint more if she wins a second term. Republicans aren't excited by the possibility, and Senate confirmation gives them the final word.

"For a Republican state, Republicans sort of expect to appoint the Supreme Court justices, and they aren't guaranteed that. This could be an attempt to solve that problem," said Bob Beatty, Washburn University political science professor.

In January, ruling in a lawsuit against the state, the court said the Legislature failed its constitutional mandate to make "suitable provision" for funding education. After the session ended, the court ruled legislators still had failed, prompting the 12-day special session where lawmakers spent much of their time trying to strike back at the court.

"The court determined the Legislature failed to carry out its constitutional mandate and based that on the evidence presented," said Bill Rich, Washburn University law professor. "The court did define `suitable' in this case because that is their responsibility, to determine what the words of a constitution mean."

Legislators argue it's not about whether they came up short in the responsibility department but a case of the justices crossing the separation of powers line.

"The underlying problem is still there, and from our perspective, it is a judicial intrusion into the power of the purse," Schmidt said.

What legislators are proposing doesn't surprise Allan Cigler, University of Kansas political science professor.

"When you don't like the decision, you change the court," he said.

One proposal would declare that the judicial branch has no authority to tell legislators how to spend money. Supporters say it would restore the balance of power, but others disagree.

"The amendment is a sneaky end run around the issue without expressly dealing with it," said Jeffrey Jackson, Washburn University law professor. "That is an attempt to address the school finance decision without really appearing to."

Another proposal would strike the phrase "suitable provision" from the constitution and make clear only the Legislature can determine education spending. Removing that phrase removes the Legislature's constitutional imperative.

"If the Legislature has control, they can go back to the funding levels they deem adequate as opposed to what the court deems is appropriate," said Joe Aistrup, head of the Kansas State University Political Science Department.

Lawmakers await a legislative audit spelling out what "suitable provision" translates to in dollars.

"If the numbers from that study are high, there will be enormous pressure to change the constitution so the courts won't be able to rule on an education finance bill," Aistrup said.

One reason conservative Republicans are livid is they built their political fortunes on cutting taxes.

"They are seeing their work of 12 years being turned back by the court rather than the voters," Aistrup said. "They have worked long and hard to cut taxes and they see the court as undoing all they have tried to do."

Whether voters ever will have a say depends on House Democrats, who managed to block efforts in their chamber after the Senate signed off on constitutional changes during the special session.

Meanwhile, the Supreme Court isn't exactly defenseless. For instance, it could declare education a fundamental constitutional right, making it an even harder battle for the Legislature to win.

The possibility isn't that remote. Earlier this month, three justices said they consider education just that. It would only take one more justice to make it a reality.


Richard Heckler 12 years, 8 months ago

Here's the deal. More funding will likely require a tax increase. Kansas Republican neocons have made committments to D.C. based organizations not to raise taxes for any reason. These organizations also bring outside campaign funds into Kansas politics. Kansas Club for Growth is one such group which has it's origins in Washinton D.C. and was initiated by a former chief of staff to Brownback. 2006 elections will come alive soon.

The Koch people have another one or two floating around as well. The Koch people IMO are Bush family neocons like Newt Gingrich. Kanas legislature is taking directions from D.C.

Johnson County is voting for another school funding tax increase Tuesday which likely will pass with republicans and democrats coming together. Johnson County is no liberal bastion. The writing is on the wall and they are afraid the moderate republicans have no backbone.

b_asinbeer 12 years, 8 months ago

"Many legislators, especially conservative Republicans, were furious when justices ordered them to find an extra $143 million for schools, forcing a special session."

WHAT THE.....! This is our future we are talking about! I don't care whether you are a republican or a democrat, money should never be an issue when it comes to the education of our children. Are those conservative Republicans out of their minds? First they try to underfund our schools, now they're mad because they had to spend the money on the future of this state? I don't get it....I just don't get it.

I mean, if the money was underfunded for another project, I may understand their anger. But, never ever deny the privilige of a quality education to a young human being.

Uhh....stuff like this makes me want to leave Kansas for good.

concerned_citizen 12 years, 8 months ago

Assuming, of course, that school boards can be relied upon to use the money FOR education and not salary increased for administrators. "OUR FUTURE" depends on a lot more than supreme court mandated spending increases. It would b nice if school boards were more accountable to the communities they served so that parents (and taxpayers in general) could have more democratic input into whether or not kids get computers or the football team gets new cleats.

John1945 12 years, 8 months ago

You're absolutely right. This is our future, and the issue is democracy over tyranny. The issue, whether you're Democrat or Republican, is whether or not your elected representatives make policy, or a few unelected and unrepresentative tyrants.

In Kansas almost 2/3s of the population are Republican, or Republican leaning yet 5 of the 7 justices are Democrats who do not represent the values of the people of Kansas.

In addition, the committee that recommends these tyrants in Kansas is loaded with unelected and unrepresentative liberals and needs to be eliminated.

The liberal agenda has never been embraced through democratic means, only through the corrupt and tyrannical imposition of liberal judges.

The legal system is this country's number 1 problem and needs drastic and radical reform starting with getting lawyers out of all decision making over who becomes a judge, and the disciplinary process for crooked lawyers. Oops, I'm sorry, that's a redundancy, isn't it.

daddax98 12 years, 8 months ago

John you continue to amaze me. Do you actually put any thought into your comments before you post them? "The legal system is this country's number 1 problem" really? Given the state of the economy, the fact that so many young people are dying in a "war" started to protect our oil interests, oil and gas prices, social security, huge personal debts, the loss of civil liberties due to the so called patriot act, big business corruption heck if we just had the money stolen in the westar scandal we could fund our schools properly. Give me a break from your conservative rhetoric

bearded_gnome 12 years, 8 months ago

John, it appears from the writings of the first two/three here that these people are happy to give up the power of appropriation (money) to unelected judges. We do not want judges in charge of budgets, that is quite unamerican undemocratic and very dangerous.
you are not alone John!

Dani Davey 12 years, 8 months ago

The problem I take with John's argument and the arguments of all those who cry "judicial tyranny!" is that it doesn't matter if any of the justices on the KS Supreme Court, the Federal Bench or the US Supreme Court are democrat or republican. It doesn't matter if they represent the sentiment of the people. That's not their job. The judiciary was purposefully removed from the political machine so they could focus their attention on interpreting the Constitution and the law fairly. Sure their decisions don't always make everyone happy but I'm much happier knowing that their decisions are based in a thoughtful and educated interpretation of a law rather than based on a sizable contribution by one of the parties to a reelection fund.

kidfresh 12 years, 8 months ago

If the legislature doesn't want the Kansas supreme court to decide what a "suitable provision" for education is, then they should just change that particular line. What shocks me is that continually the legislature makes rules, and then when the court interprets them (as is their duty) in a way that some rep's don't like, they bitch at the court for overstepping their bounds. Don't write vague laws and amendments that are open to interpretation then. It's as easy as that. The legislature brought this upon themselves through their own laws. If we don't want to assure our youth of a "suitable provision" for education, then we shouldn't put it into our constitution. Vague language begs for interpretation, and the supreme court is set up to settle just such disputes. The problem is with the legislature being ignorant of their own power.

hawkrew 12 years, 8 months ago

This is absurd. Education is one of the most important aspects of our culture and all the Kansas legislature wants to do is take money away from it. The No Child Left Behind act already is pulling money away from schools that need it the most. I have an idea, let's punish schools that can't keep their students standerdized tests scores up because they don't have the necessary resources to teach their kids in the first place. Taking funds away from that school will force the teachers to teach harder from the out of date text books and poor learning enviroments. This is the result of the brainless legislature own actions, approving funds of only a quarter of what their own research study suggested. Teachers already have one of the toughest jobs possible and to seriously undercut their ability of having up to date tools is incredibly stupid.

wbob 12 years, 8 months ago

Has anyone read the research about class size and student achievement? Particularly that of Caroline Hoxby, Harvard economist? This is important, because one of the most expensive things to provide is small class size.

John1945 12 years, 8 months ago

The Kansas Supreme Court is a greater threat to our democracy than Osama yo mama and his tiny pack of bozos.

We at least recognize the threat Osama poses and are doing everything we can to destroy that threat. We now need to focus on the real threat to our freedoms and declare a war on it.

We need tort reform. We need laws that provide a means of getting a biased judge off a case even before he/she/it rules on a case. We need real disciplinary boards with criminal sanctions and jail time for lawyers who encourage fraudulent lawsuits. We need jail time for activist judges of any stripe who invent "rights" out of whole cloth and legislate from the bench. We need to change the whole judicial process to where judges aren't just ambulance chasers who can't earn a living and ideologues ofany ilk. We need a meaningful process of getting tyrants like Terry Bullock and judicial scum like Allegrucci, Nuss and Rosen off the bench and retiring judges who fall asleep during oral arguments.

We need to recognize that the practice of law is an intrinsically dishonorable field of endeavor and that it needs to be highly regulated. I repeat, highly regulated- from outside the profession, not by other pettifogging shysters.

Frivolous lawsuits are a threat to our economy. Who do you think ultimately pays for those $3,000,000.00 cups of coffee, or pays the $27,000,000.00 to Carla Stovall's cronies for doing little or nothing? How many small businesses have gone under from the costs of anticipating lawsuits? How many have been shut down from fraudulent lawsuits? How many doctors are refusing to practice certain kinds of medicine because of soaring insurance costs?

We have given a pack of sleazy ambluance chasers absolute power over our lives, our economy and our freedoms and they are a threat to them all.

We need a high profile war on lawyers.

Dani Davey 12 years, 8 months ago

John, your last post has me a bit concerned because it seems to indicate that you aren't seeing the difference between lawyers and judges. Judges can't be ambulance chasers. It is legally impossible because judges can't initiate suits, they can't even request them. All a judge gets is what someone else brings to them.

Is there corruption in the American legal system? Sure, I can admit that and I'm looking forward to joining it. But are all lawyers scumbags that look to exploit people and create some sinful counterculture? No way. I don't know if you've had a bad experience with a lawyer before or what, John, but the fact is that most lawyers are only as brash as their clients. Maybe our backlogged court system says more about trigger happy clients wanting to sue people than about their counsel.

I think the ABA does a pretty good job regulating. Tort reform is only going to take away opportunities from people who really do need them. I heard somewhere that 90% of medical malpractice suits are caused by 10% of doctors. Tort reform isn't going to solve that as well as some stricter regulations by the AMA.

John - you say we need a high profile war on lawyers, but I guarantee you'd change your tune real fast if a family member was in trouble, if you were terminally ill and needed a good will or if you were the victim of a negligent action.

Densmore 12 years, 8 months ago

Setting the issue of education aside for a moment, and not wishing to wage war on attorneys, I must agree in principle with much of what John has said about our legal system and a need for reform. I try not to let unpleasant personal experiences control my thinking, but on two separate occasions, while providing testimony before the Kansas Board of Tax Appeals, one of the members of the tribunal fell asleep. Testimony in tax litigation is often boring and soporific, and I know that I am not the most exciting speaker, but seriously, these experiences were just too much. (The Board of Tax Appeals is essentially the state's tax court. Decisions may be appealed to the Kansas Court of Appeals and then on to the Kansas Supreme Court. The five tribunal members are appointed by the Governor. Both sides of the aisle have placed some real losers in these positions. I have seen many instances where only a couple of the members showed up for a hearing. Freaking ridiculous. )

I don't know which is the lesser of the two evils: Elect judges and have them corrupted by the political process, or have politically corrupted elected officials appoint judges. I think that this issue needs some serious study. But will it happen? Not so long as legislative bodies are controlled by attorneys.

Lou Mulligan 12 years, 8 months ago

This constitutional fight certainly has strong arguments on both sides. Unfortunately, much said here is either (1) bombastic or (2) uninformed.

For starters, the KS legislature is not controlled by lawyers. It has very few lawyer members (as do most state legislatures nowadays). Further, if you track testimony in front of legislative panels or contributions, you will find that a small amount of both comes from lawyers.

It is easy to condemn others as acting in bad faith when you disagree with them, but this is not constructive. Generally speaking, people are not acting in bad faith and simply have a different perspective (thus, address the poor ideas --- don't attack the person). Indeed, a liberal could just as easily point out "activist" conservative judicial actions --- for example, Bush v. Gore or all of Eleventh Amendment jurisprudence --- and call conservative judges tyrannts.

Clearly, John and Densmore raise a serious and important point: How much control should the undemocratically controlled court system have as compared to the legislature? One's view on this issue should be determined independently from the appropriate funding for schools. I, for one, would vote for more school funding but don't think it a good division of labor for the courts to make this decision.

That said, the Kansas constitution's text ("suitable funding") requires the court to get involved. The Court has a duty to interpret the constitution, it can't just say this is touchy we don't want to decide. This is just a bad amendment, assuming you think that fundraising matters should be reserved for the legislature. Similarly, many other conservative backed amendments (in Kansas and around the country) are poor policy choices from this perspective. TABOR and amendments requiring balanced budgets compel the state court systems to get involved in the budgeting process (Nevada has an interesting history on this score). If people, as I do, would prefer that the courts not mandate budgetary items, then they ought not approve constitutional amendments that place these issues squarely before the courts.

If there is fault to be placed here, it is with us, the electorate, for the supreme court's actions. We should not approve amendments which foist these budgetary matters into the constitution (and thereby in front of the courts).

John1945 12 years, 8 months ago

I must confess that I derive some of my perception of the relationship between lawyer and judge to "The Whorehouse Theory of Law" first published in Law Against The People: Essays to Demystify Law, Order and The Courts written by Florynce R. Kennedy.

In essence, the judiciary is seen as pimp for a profession of whores. Given that both "professions" will assume any position for a fee, I don't think it's an unfair analogy. Given that this article comes from an author on the left it also stresses the truly populist nature of a war on the ambulance chasing industry.

And, implementing your agenda through the judiciary allows your supporters to take a hike when it comes to going to the polls. Democrat or Republican, we need a war on lawyers and activist judges of any stripe.

If we cannot go to the bench and find an impartial arbiter for our disagreements we have the basic recipe for chaos. And, if we can not receive retribution for our grievances the state has failed in its commitment to the social contract.

John1945 12 years, 8 months ago

Wendt, my friend, there is no greater testimony to the failings of the legal system than the trail of tears you've taken over the past few years.

Legitimate grievances, corporate irresponsibility resulting in what would certainly be termed negligent homicide and yet there has been no redress of these legitimate grievances. In the meantime, scoundrels and fraud abound unfettered by any rational implementation of the law. Sadly, I see a pattern in the way the law is administered.

MyName 12 years, 8 months ago

First, the supreme court justices in this state are elected. If you don't like them, vote against retaining them in the next election. If you can get a majority of the voting public to agree with you, then we get a new justice. Personally, I like this system better than the federal system. Much more democratic.

It's in the freaking state constitution, by the way? Have you read it? John &co.?? There's a whole article in it devoted to Education just like for all of the branches of government. It's Article 6 and it's listed just after Article 5: Suffrage. The people who wrote our constitution thought that having an education is almost as important as the right to vote. I swear the Tax Cuts At Any Cost Caucus will be going after that one next.

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