LJWorld.com

Topeka — Attorneys for Kansas Supreme Court Justice Lawton Nuss said Wednesday he shouldn't be sanctioned for his out-of-court conversation with two legislators about the pending school finance case.

Nuss faces a disciplinary hearing today - the first time in Kansas history where a Supreme Court justice has been charged with ethics violations.

"This event should not significantly taint Justice Nuss' past record of exceptional integrity as a Marine, a lawyer, and a member of the judiciary," Nuss' attorney, Nick Badgerow, argued in a legal brief in the case that is being considered by the Kansas Commission on Judicial Qualifications.

Badgerow argued that Nuss shouldn't be sanctioned, or, at worst, should be assessed only a private caution.

But the commission's hearings examiner, Edward Collister, a lawyer from Lawrence, repeated allegations that Nuss violated judicial rules.

Lunch conversation

The case has rocked state government, combining the politically charged subjects of school finance and judicial ethics.

But Collister said that "regardless of all the distractions," the central question is, "Did or did not (Nuss) commit ethical violations of the Kansas Canons of Judicial Conduct?"

During lunch on March 1 at a Topeka restaurant, Nuss spoke with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina, about a proposed school finance bill before the Legislature.

At the time, the school finance lawsuit was the most high-profile case before the Kansas Supreme Court. The court had declared the school funding system unconstitutional because it shortchanged all students, especially low-income districts. Last month, it approved the Legislature's new $466 million, three-year funding increase.

When word leaked out about the lunch meeting, Nuss removed himself on April 20 from further proceedings in the case.

Judges are prohibited from discussing pending litigation with interested parties outside the court. Kansas Supreme Court Justice Kay McFarland requested an investigation by the Commission on Judicial Qualifications, and House Speaker Doug Mays, R-Topeka, launched a separate inquiry.

Nuss downplays talk

But Nuss' attorneys argued in a legal brief filed Wednesday that the justice's conversation was not improper.

Badgerow described the meeting as "a very brief conversation, in a casual, public lunch with a longtime friend, concerning the accuracy of financial figures in a newspaper article about a pending bill - which the bill was ultimately not passed or adopted."

Although the legislation in question wasn't approved, many critics of the court claim it was Nuss' comments to Morris that helped shape the final bill.

Under the complaint from Collister, Nuss allegedly violated rules that judges uphold the integrity and independence of the judiciary, avoid the appearance of impropriety and not conduct independent investigations of facts.

Senators to testify

Both Morris and Brungardt are scheduled to testify today. They had been subpoenaed by Collister, but then agreed to testify voluntarily.

The commission will recommend to the state Supreme Court what disciplinary action, if any, should be taken. The Supreme Court could censure Nuss or suspend him. Under the Kansas Constitution, a justice can be removed only if the House impeaches him and two-thirds of the Senate votes to convict.

Morris has stated that the entire discussion with Nuss about the school finance bill took about five minutes. Morris said Nuss had some questions about the exact funding amount of the bill and said reports that leaders sought a bipartisan plan "sounded good."

But Nuss has said he said nothing at the meeting about a bipartisan plan, and that he sought only to determine whether a newspaper account of the proposed legislation was accurate.