Topeka — Kansas Supreme Court Justice Lawton Nuss announced Thursday he would remove himself from further proceedings in the school finance lawsuit because he discussed the pending case with two powerful lawmakers.
The development rocked the Capitol, raising the temperature of an already heated debate over school funding and the authority of the judiciary.
House Speaker Doug Mays, R-Topeka, told The Associated Press he may call for a legislative investigation into the incident and hinted at the possibility of trying to impeach Nuss.
"I'm outraged," Mays said. "This is a serious breach of the separation of powers."
Rep. Mike O'Neal, chairman of the House Judiciary Committee, said, Nuss' explanation "raises more questions than it answers."
Some lawmakers said Nuss' revelation would increase pressure to rein in the state Supreme Court, which critics have accused of going beyond its authority by ordering lawmakers to increase school funding.
Lunch with senators
According to a statement released by the Office of Judicial Administration, Nuss had lunch March 1 with Senate President Stephen Morris, R-Hugton, and Sen. Pete Brungardt, R-Salina.
More about school finance
- Webcast of live arguments before the Kansas Supreme Court (requires Windows Media Player)
- Brief of the Montoy suit (.pdf)
- Timeline of events in school finance lawsuit
- 6News video: School finance bill to face court
- Plaintiffs: School finance bill fails grade (06-13-06)
- State wants high court to dismiss school suit (06-02-06)
- Legislature approves school finance plan (05-10-06)
- Chat with Bob Corkins, Kansas Education Commissioner (02-02-06)
- House roll call on $148.4 million school finance plan (07-07-05)
- Supt. Weseman's contingency plan (07-06-05)
- More about school finance »
- Conference Committee on Senate Bill 549
- House bill info
- Senate bill info
- Kansas public schools cost study
- Kansas public schools cost study executive summary
- Public Education Finances 2004 (.pdf)
- Senate roll call on $148.4 million school finance plan
- Supreme Court's Show Cause Order (07-02-05)
- Supreme Court's Order Denying Extension (.pdf)
- Senate Concurrent Resolution No. 1603 (.pdf)
- Supplemental Note on Resolution No. 1603 (.pdf)
During the lunch at Carlos O'Kelly's Mexican Cafe in Topeka, Nuss shared with the senators a three-column tabulation showing figures from two school funding cost studies, and a House proposal.
Nuss said he wanted to determine if his figures were accurate, according to the statement.
When inquiries were made Thursday about the lunch, Supreme Court spokesman Ron Keefover notified Chief Justice Kay McFarland. All justices were summoned to a meeting where Nuss disclosed what happened, Keefover said.
Nuss then said he would recuse himself in the school finance case "to avoid any appearance of impropriety," a statement from Keefover said.
The statement further said that there had been no discussion between Nuss and the senators "of what amount of funding might eventually be acceptable to him or to the court as a whole."
Brungardt backed up Nuss' version of events, saying it was a short discussion and that he didn't think much of it at the time.
"I'm surprised that he recused himself," said Brungardt, who said he and Nuss have been friends for 25 years.
Brungardt said that as he was leaving the Capitol to have lunch with Nuss that day he asked Morris to go with him.
The three men talked briefly about the funding levels of the cost studies and the House plan, Brungardt said.
"We didn't discuss what would be favorable or not favorable to the court," he said.
The court has unanimously declared the school finance system unconstitutional because it shortchanges all students, especially poor ones. The court ordered increases last year, which resulted in a special session and a $290 million, or 10 percent, increase to schools.
The court also has ordered lawmakers to further increase funding in line with a cost study. The Legislature will return Wednesday for its wrap-up session to work on that.
Judges are not supposed to have discussions with those involved in litigation outside of court proceedings.
Washburn University School of Law professor Bill Rich said Nuss made a mistake.
"It seems, from what I've heard, to have been an error of judgment, and my guess is Justice Nuss would be the first to say that," Rich said.
But it sounded as if Nuss wasn't trying to influence the case, Rich said.
Keefover said it was not uncommon for lawmakers and justices to meet over issues, such as appropriations by the Legislature for the courts.
The statement stunned Karl Peterjohn, executive director of the Kansas Taxpayers Network, which has been critical of court-ordered increases in funding to public schools.
"Is this the tip of the iceberg, or truly an isolated case?" Peterjohn asked.
He said if justices want to discuss their budgets with lawmakers it should be done in open committee hearings.
"This revelation ought to be a cautionary signal to the legislators who are happy with the status quo," he said.
Alan Rupe, an attorney representing the plaintiff school districts that won the school finance lawsuit, said Nuss' recusal would have no effect on the case.
"The court decision has already occurred," he said, noting that it was unanimous.
Brungardt said the development would serve as a distraction and more fodder for those who don't want to do anything on schools.
"The people who don't want to vote for anything will make a big deal of this," he said.
Keefover said any potential disciplinary action against Nuss would have to be handled by the Kansas Commission on Judicial Qualifications. He declined to say whether Nuss violated ethics restrictions.
Nuss joined the court in 2002. Before that he had been a private lawyer whose clients included the Salina school district, one of the main plaintiffs in the school funding lawsuit.
The Kansas Taxpayers Network last year filed a complaint against Nuss to disqualify him from the school finance case because of his former connection with the school district.
But the Judicial Qualifications Commission ruled there was no ethics violation.