Topeka Kansas Supreme Court Justice Lawton Nuss says he wanted to have lunch with an old friend to try to ease tensions between the Legislature and court.
On his way out the door to meet state Sen. Pete Brungardt, Nuss says he grabbed a chart he had put together on school funding.
So began an episode that led to Thursday's unprecedented hearing where Nuss faced a disciplinary panel for discussing a pending case outside the courtroom.
It was the first time in history that a Kansas Supreme Court justice was required to explain his conduct before the Kansas Commission on Judicial Qualifications.
"I overstepped. I apologize for that," Nuss said during an hour and 45 minutes of testimony. "I also ask for the opportunity to learn from my mistakes."
Nuss' legal team downplayed the incident, asking the seven-member panel to clear the justice of any wrongdoing, or at most to issue a private warning.
Jennifer Jones, a judge from Wichita who is chairwoman of the commission, said whatever decision the panel reaches, it will be made public because of interest in the case.
She said there was no timetable on when a verdict would be delivered; typically the commission takes several months to rule.
The commission could issue a letter of reprimand, censure or recommend temporary suspension by the state Supreme Court. A justice can be removed from the court if the House impeaches and the Senate convicts with a two-thirds majority.
The dispute stems from a March 1 lunch at a Topeka restaurant between Nuss and Brungardt, R-Salina. Later, they were joined by Senate President Steve Morris, R-Hugoton.
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. It also had ordered lawmakers to increase funding.
Last month, the court approved the Legislature's new $466 million, three-year funding increase.
During the lunch meeting, Nuss asked both legislators if a newspaper account of a proposed House bill on school finance had the accurate amount of funding. He had a sheet of paper that listed the funding amount of the House bill and two education cost studies.
Nuss said he asked about it because he wanted to stay on top of developments in the case so that when the court acted on whatever the Legislature did, it could work quickly and not inconvenience the school system.
"I was really and truly trying to do my best as a justice," Nuss said.
He said he initially sought out his friend Brungardt for a talk because he was concerned about some lawmakers making disparaging comments about the court after it ruled against the state in school finance and the death penalty.
Justice Lawton Nuss
More about Justice Lawton Nuss
- Nuss gets off with warning over school finance talk
- Nuss talks turn political
- Communication between governor's office and Kansas judicial branch (.pdf)
- Code of judicial conduct (.pdf)
- Rules relating to judicial conduct(.pdf)
- Justice Nuss' response to the allegations (.pdf)
- KSGovernor.org: Sebelius responds to wide-ranging open records requests
- Justice Lawton Nuss biography, from Kansas Supreme Court web site
- KSCourts.org: Recusal Statement
- School Finance Proposed Expenditures Comparison (.pdf)
- 6News video: Nuss controversy ends with questionable punishment
- 6News video: Nuss meeting descends to bickering
- 6News video: Committee begins interviews in Nuss affair (06-08-06)
- 6News video: Committee begins investigation into Nuss affair (05-25-06)
- 6News video: Kansas lawmakers determine school finance plan (05-02-06)
- House panel votes to expand Nuss probe (06-09-06)
- Senator from Lawrence declines to testify for now (06-09-06)
- Senator denies court contact before Nuss lunch (06-08-06)
- Nuss says he regrets meeting (06-02-06)
- Supreme Court justices at a glance (08-20-04)
- More about the 'Nuss Fuss'
- More about the school finance case
Nuss also said that he emphasized to the two legislators that nothing he said at lunch should be construed as an indication of what he or any other member of the court thought about the issue of school finance.
But the commission's hearings examiner, Edward Collister, a lawyer from Lawrence, repeated the allegations against Nuss.
"The evidence is clear," Collister said. "Not only did Justice Nuss make a mistake : but it was a mistake that had some consequences."
Nuss is accused of violating the Kansas Canons of Judicial Conduct, which prohibit judges from meeting with select, interested parties in a pending case and from doing research on cases that is independent of what has been entered into the record of a lawsuit.
After word leaked about the lunch meeting, Nuss removed himself April 20 from further proceedings in the case.
Kansas Supreme Court Justice Kay McFarland called for an investigation by the commission, and House leaders formed a committee to investigate the incident.
"There is a violation and there should be a consequence," Collister said.
Both Brungardt and Morris testified after first being subpoenaed but later agreeing to speak voluntarily.
Their version of the lunch conversation agreed with what Nuss had said, which produced a major conflict with earlier comments.
After news of the lunch broke in April, Morris publicly stated that Nuss had said he was pleased to hear reports that legislative leaders were seeking a bipartisan school finance plan.
Critics have said Morris' comment helped defeat a smaller school finance proposal in the Senate that was supported only by Republicans.
But on Thursday, Morris backed off that statement.
"I can't say for sure" that Nuss had said that, Morris testified.
Nuss denied saying that he told the two senators that he or anyone else on the court favored a bipartisan plan.
Sen. Jim Barnett, R-Emporia, author of that failed school plan, said Morris had changed his story.
"In meetings with me and other colleagues in the Senate, he did state that a bipartisan plan was one of the specific requirements that was put forth," said Barnett, who now is the Republican Party candidate for governor.
Nuss' attorneys argued that the justice suffered a "brief lapse" from observing the judicial code, and that no harm was done because the conversation didn't influence Morris or Brungardt, and the House bill never was approved.
"This was a single, simple mistake with no intent to do wrong," said attorney Nick Badgerow.
The incident stoked criticism of the court as overreaching and heightened speculation of "back-door" communications between the court and state officials.
But Badgerow urged the commission to ignore the political storm, which he said was fueled by election-year rhetoric.
Nuss said he was embarrassed by the incident and regretted it. "I feel very foolish for what I did," he said.