Justice faces ethics probe
Meeting with senators could result in court disciplining judge
Topeka ? The state’s judicial disciplinary board on Friday opened a formal proceeding against Kansas Supreme Court Justice Lawton Nuss, who is accused of violating judicial rules when he discussed the pending school finance case with two lawmakers.
The announcement marked the first time a complaint to the Commission on Judicial Qualifications had resulted in a formal proceeding against a Kansas Supreme Court justice, court spokesman Ron Keefover said.
Judges are prohibited from talking privately with interested parties during a case.
At a lunch meeting March 1, Nuss discussed with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina, aspects of school finance, the most high-profile case before the court.
Judicial Qualifications hearing examiner Edward Collister Jr., a Lawrence attorney, alleged Nuss violated several canons of judicial conduct, including those that require a judge to:
¢ uphold the integrity and independence of the judiciary,
¢ avoid impropriety and the appearance of impropriety in all of the judge’s activities, and
¢ perform the duties of judicial offices impartially and diligently.
Nuss has until June 1 to respond. He and other Supreme Court justices declined a request for interviews.
The commission would recommend to the 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.
Political shockwaves
Disclosure of Nuss’ lunch discussion sent shockwaves throughout Kansas politics.
The attorney general’s office has questioned senators, the House has formed an investigative committee and Republicans on a Senate committee are seeking records from Gov. Kathleen Sebelius’ office to determine if there were any communications there with justices.
“I’m pleased that they’re moving forward expeditiously,” said House Speaker Doug Mays, R-Topeka. “We’ll look forward to the public proceedings.”
Sebelius, a Democrat, has said she was “incredibly unhappy” that a justice had talked to legislators about school finance, and that she had no contact with the court. She later acknowledged Morris had made an “offhand” comment to her in March about having talked to someone associated with the court.
As for the complaint with the commission, Matt All, her chief counsel, said: “This is the function of that body to uphold the canons of ethics and we are sure they are going to do just that.”
Calls to resign
On April 20, Nuss removed himself from the school finance case after a reporter asked the court if any conversation between any legislator or court member took place. Four days later, Chief Justice Kay McFarland asked the commission to look into the matter.
Andrew Kaufman, a Harvard Law School professor who teaches legal ethics, said judges learn shortly after getting on the bench about prohibitions on discussing cases with outsiders.
“Any judge ought to know,” he said. “They’re not supposed to speak to members of their own family.”
He said a key issue is keeping a trial fair and making sure that if a judge or justice receives information, all parties know about it.
The judicial complaint against Nuss came a day after a Republican senator who has been critical of both Nuss and the court’s decisions on school finance called for him to resign.
Sen. Tim Huelskamp, R-Fowler, called Nuss’ conversation “a very flagrant violation” of the judiciary’s code of conduct, which does not allow judges to discuss cases without all parties represented.
“I think to clear the air, I think he should resign,” Huelskamp said during a news conference Thursday. “What kind of communications did occur? I think, potentially, there are other justices who may or may not be involved. We’re just trying to get to the bottom of this.”
Morris said he anticipates being called to testify during the commission’s investigation and didn’t want to comment further.
Court spokesman Keefover has said Nuss’ conversation with the senators was the only contact between the court and legislators on school finance issues. He declined Thursday to respond to Huelskamp’s comments.
Morris and Brungardt have said Nuss brought a spreadsheet to lunch and sought to clarify numbers about various school finance proposals. Morris has said Nuss suggested a bipartisan plan would be helpful.
Legislators approved a plan to increase funding for public schools by $466.2 million over three years before adjourning their wrap-up session Wednesday night. The plan is designed to answer the court’s mandate for more funding.
Nationally, there have been several justices on state supreme courts whose behavior has caused problems. In 2003, a judicial court in Alabama removed Supreme Court Chief Justice Roy Moore after Moore defied a federal judge’s order to remove a monument displaying the Ten Commandments in that state’s judicial building.
And justices in Illinois, New Hampshire, Mississippi and Ohio have faced complaints about their activities during the last decade.