Topeka It's possible that an indication of whether legislators and justices have been communicating on the pending school finance lawsuit could be found in their telephone records and appointment calendars.
But those records are off limits under the Kansas Open Records Act.
The Lawrence Journal-World requested those records after Justice Lawton Nuss on April 20 disclosed - when it became apparent it would be reported - that he had discussed on March 1 the school finance case over lunch with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina. Judges are prohibited from privately discussing pending cases with interested parties.
The newspaper sought on April 25 copies of or access to telephone records of justices on the Kansas Supreme Court and Morris, dating back to Jan. 1, 2006.
Ron Keefover, a spokesman for the court, denied the request, citing a part of the Open Records law that states the judiciary is exempt. Patti Van Slyke, communications director for Morris, cited another part of the law that exempted records maintained or kept by members of the Legislature.
Essentially, the Kansas Open Records law states that it is the policy of the state to make government records open to the public. But then it lists dozens of exemptions that includes the Legislature, which created the law, and the Kansas Supreme Court, which interprets it.
More about open records law
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
Douglas Anstaett, executive director of the Kansas Press Assn., said, "That is why friends of open government come to the Capitol every year trying to get exemptions removed.
"We've always contended there are too many exemptions."
Republican legislators wanting more information about communications with the court have now focused on Gov. Kathleen Sebelius' office, and made at least eight requests for records.
Sen. Tim Huelskamp, R-Fowler, said the requests were fair because Morris said that before Nuss disclosed the discussion, Morris had mentioned to Sebelius at a meeting that Morris had communicated with the court.
Sebelius said she didn't take Morris' comment seriously when he said it because it was an off-hand remark, and legislators often have said they believe they know what the court wants in the long-running legal battle. The Kansas Supreme Court has ordered lawmakers to increase school funding to make up for inadequate funding of low-income school districts.
But Huelskamp said he was suspicious because Sebelius initially expressed outrage over Nuss meeting with Morris.
And Huelskamp and some other Republicans have long complained that Justice Donald Allegrucci should have removed himself from the school case because he is married to Joyce Allegrucci, who is Sebelius' former chief of staff.
In addition to Huelskamp, a number of Republican legislators have filed anonymous open records requests for Sebelius' records through the Legislative Research Department.
Several Democrats have said Republicans are trying to divert attention from the debate over how much to fund schools, and the fact that the controversial discussion occurred between GOP senators and a Republican-appointed justice.
Sebelius' office said that the requests for open records are so broad they will take a long time to complete.
Anstaett, with the newspaper group, said the current controversy shows that exemptions carved out of the Open Records law for the Legislature and judicial branch are problematic.
"All of a sudden," he said, "everyone else is seeing the light."