Welcome to our online chat with a KU law professor about high court recusal, investigation.

The chat took place on Thursday, April 27, at 1:30 PM and is now closed, but you can read the full transcript on this page.

Moderator: Welcome to our chat today with Mike Hoeflich, a Kansas University law professor, who is here today to chat with us about Kansas Supreme Court Justice Lawton Nuss’ decision to recuse himself from any further court deliberation on school finance.

I’m Dave Toplikar, online editor, and I’ll be moderating today’s chat.

Mike, thanks for being with us today. We have lots of questions. So let’s get started.

Moderator: Here are two questions that are fairly similar.

Rob – lawrence, ks: Doesn’t any investigation by the KS legislature pose a threat to the independence of the judicial branch? In my opinion, the judicial branch should investigate its own personnel, and not involve the legislature. In light of last year’s controversy over the school finance lawsuit, isn’t the judicial branch’s independence at risk right now?

KU law professor Mike Hoeflich answers readers' questions online.

John, Lawrence: Could the investigation by the Comm. on Judicial Qualifications be an attempt to avoid having the matter further politicized by an investigation by the Legislature?

Mike Hoeflich: I think that we ought to begin with the rules at issue. The Supreme Court has promulgated a set of ethics rules for judges. Rule 601A includes what is known as Canon 1: ” A judge shall uphold the integrity and independence of the judiciary.” This is generally held to prohibit what are known as ex parte conversations with litigants. So, the issue in Justice Nuss’ case is whether he violated Canon 1. If the rule has been violated, then the judge may be punished in some way. Generally, the investigation of such a complaint would be carried out by the Commission on Judicial Qualifications. That is precisely what is now happening.

Mike Hoeflich: The Legislature does legally have the right to initiate an investigation if impeachment proceedings are appropriate and initiated. In my own opinion, that would be a serious over-reaction to this situation, at least at this time and with what we know. Justice Nuss has recused himself, as he should, has admitted to his actions, and the Chief Justice has referred the matter to the Commission. This is precisely what the law calls for.

Lee, Lawrence: Thank you for agreeing to do this chat. Did Justice Nuss self report this conversation or did he report by recusing himself? What sort of consequence would Justice Nuss expect should he be found to have made a poor decision in speaking with the two senators that rises to what the powers deem to be substantial or inappropriate? Thank you.

Mike Hoeflich: Lee: I don’t actually know whether he self-reported separately from his recusal. I would imagine that both occurred at the same time because once he realized that he might have acted improperly he would have recused himself in the matter. These are the sorts of questions which an investigation will ask and answer.

Bill, Lawrence KS: 1) Can a Kansas Supreme Court Judge insert false testimony into a decision or declare something was testified to in case testimony when no such testimony exists in the trial record?

2) Can a Kansas Supreme Court Judge ignore the expert witness who testified in a case and insert his own expert witness, undeclared at time of trial and, in addition, not expert at all when rendering a decision at the appeal level?

Thank You.

Mike Hoeflich: Bill: I’m not an expert on appellate procedure but I think that the answer to your questions is generally “no.” Appellate judges are bound to make their decisions from the record that comes to them from a lower court. Certainly, they do not of their own accord insert evidence in the record. What a judge, even an appellate judge may do in some cases is take “judicial notice” of certain generally known facts. An appellate court can also send a matter back down to the lower court for additional evidence or require additional reports to be done, if the situation warrants it. In the school finance case I think what’s been happening is not really a question of introducing new evidence at all. Rather, the Supreme Court simply said that the current situation won’t work, come back to us and tell us what you propose to do and we’ll tell you whether that’s sufficient. In fashioning a remedy they may well want additional information. That’s a different process from deciding the substance of the case.

Bill: It looks like there are going to be two separate bodies making inquiries. Do either or both have the authority to remove Nuss from the bench? If so, does one control the other or are they independent?

Mike Hoeflich: Bill: That’s an interesting question and I don’t really think that it will come up. In theory, the Legislature could remove a justice by impeachment for the same activity that the Supreme Court may decide was not sufficient to warrant removal, but the standards are quite different. There have been numbers of instances in Kansas and elsewhere where judges have had ex parte discussions violating Canon 1. I personally doubt whether impeachment and removal would be an appropriate response.

Christine Lawrence: Do you think it is a good idea to allow judges to publicly express their thoughts or feelings on a specific issue that may come (or is already) before them for a decision? What is the reason for the rules that require judges to refrain from making public comments on matters of public interests? Don’t judges have first amendment rights? Wouldn’t people get a better chance to know how a judge thinks if the persons who are judges (or who want to be) were allowed to give “campaign speeches” like other public officials?

Mike Hoeflich: Christine: Personally, I think it’s not a good idea most of the time. I think that all of us want to believe that judges are neutral and impartial and if a judge takes a position on a pending case or even one that is likely to come up, that makes us less comfortable in accepting their impartiality. That’s why U.S. Supreme Court nominees often refuse to comment on specific issues.

John. Lawrence: I was of the impression that the St. Supreme Court was fairly unified on the matter of school finance. Did Nuss have significant disagreements with the other justices on this issue?

Mike Hoeflich: John: I doubt that we’ll ever know nor should we. Deliberations on cases before the Court are generally kept confidential. The only way we would know this is if the published opinion contains dissents or concurrences.

Marc Lawrence: I was taught that courts are not legally allowed to establish budgets for other branches of the government, but rather, their job is to apply the law, and thus determine whether the laws have been followed or what general actions are required in order for laws to be followed. Is there any other situation, in your memory, where any court picked a specific dollar amount that it said would comply with a law (that does not contain a dollar amount)? Is it common for an appeal level court to go into fact finding?

Mike Hoeflich: Marc: The Supreme Court has wide latitude in deciding appropriate remedies in cases. I think that the important thing to remember in the school finance case is that the Kansas Constitution sets a standard for appropriate support for education, but doesn’t really say what appropriate support is. In such a case the Court could have decided not to decide the issue at all because it was a “political question” and would be better left to the Legislature. But, for whatever reason, they didn’t take that route, Once they decided to hear the case and decide it, then they have to come up with a remedy, even if it means giving a number.

Moderator: I have another question for you. Do you think it’s a good idea for the Kansas Legislature to hold its own investigation?

Mike Hoeflich: Not yet and probably never. Judicial impeachment proceedings are expensive and take a great deal of time and effort. The Legislature now has a number of key issues before it to be decided in a short time span. I think that the Legislature ought to concentrate on the budget and leave the investigation to the Judicial Qualifications Commission.

Mike, Lawrence: Are you aware of other instances in Kansas history where a supreme court justice has had an ethical violation while on the bench and how it was handled?

Mike Hoeflich: Not offhand. There have been impeachment proceedings a number of times, but I just don’t know whether there’s been one involving a Supreme Court justice within the past century. It’s probably worth finding out.

Ellie, Topeka: Judges hold themselves outside the political realm. But is it reasonable to expect a supreme court justice to have the political or even common sense not to have an ex-parte luncheon on a highly charged topic during a showdown with the Legislature over school finance? Is the guy a knucklehead or what?

Mike Hoeflich: He made a mistake. I think that judges, like the rest of us, are human and make mistakes. He’s admitted his mistake and taken the proper steps to deal with it. Now it’s up to the Commission to find out how serious his mistake was and what punishment, if any, is appropriate. I’d hate to think that anyone ought to be ruined for one mistake, if it was unintentional and didn’t cause damage. I think that, to be fair, we ought to let the Commission do its job and see what they find. I don’t know of any reason to think that they won’t do a thorough and fair investigation.

Moderator: That will be our last question of the day. Mike thanks for taking the time to spend with us today and respond to our readers’ questions.

Mike Hoeflich: Been a pleasure.