Topeka — Advocates for increased public school funding say they are worried that an effort by Gov. Sam Brownback and Republican legislative leaders to change the way Kansas Supreme Court justices are selected could have an effect on a lawsuit before that court that asks the state to increase funding to schools.
"It's very concerning to us," said Kathy Cook, executive director of Kansas Families for Education.
Brownback and conservative Republicans in the state Legislature have taken steps in recent months to give the governor more control over how judges are selected.
In the last legislative session, Brownback was given the ability to select judges for the Kansas Court of Appeals with Senate confirmation, rather than working through a nominating commission. Republican leaders have indicated they would like to bring a similar system to the selection of the Supreme Court. Conservatives say the nominating commission favors more liberal candidates for judgeships.
The prospect of changes in the judge-selection process come against a backdrop of controversy over whether Kansas schools are being given enough state funding. A three-judge panel ruled earlier this year that the Legislature has failed to live up to its constitutional duty to adequately fund public schools, and ordered an increase of approximately $500 million.
The case has been appealed by the state to the Kansas Supreme Court, which will hear oral arguments Oct. 8 and is expected to rule by the end of the year.
While changes in the ways judges are selected may not directly affect the current education-funding case, Bill Rich, a constitutional-law professor at Washburn University, says it's no surprise that the perception among some observers may be that conservatives are trying to put the court on notice.
But he added, "I don't think people on the court are likely to be intimidated."
Brownback's office issued a statement defending his record on school funding and the recent change in selecting judges to the Kansas Court of Appeals. "The changed judicial selection process has allowed two branches of Government to be highly involved in vetting the judicial candidates, which was not the case before. The new selection process also gives members of the public a voice in the process, which they did not have before," his office said.
Conservatives angered by court
Both school funding and the make-up of the judiciary will be among the main issues when the Legislature meets in January.
The current school finance case echoes similar cases in 2005 and 2006, when the state Supreme Court, citing the state constitution, said the Legislature had failed to adequately fund schools and ordered legislators to increase funding. That infuriated conservative Republicans and ratcheted up their criticism of the justices.
Now the conservative Republicans are in charge and they want to alter the makeup of the court, or the way the court does business.
While the selection process for the Court of Appeals already has been changed, the nominating-commission system remains in place for filling vacancies on the Kansas Supreme Court. Any change in the selection process for the Supreme Court would require a constitutional amendment.
Brownback and his allies would like to pass that constitutional amendment, and while it has been approved in the Senate by the required two-thirds majority to place the measure on the ballot, it hasn't in the House.
Short of a constitutional amendment, legislation has been filed in the House to alter the make-up of the appellate courts by reducing the retirement age from 75 to 65, and changing the authority of the Supreme Court.
Politics and the judiciary
Cook and other advocates worry that changes in how judges are selected could make courts less impartial, leading to decisions that change the ways schools are funded.
"Most of the time, when we have had an increase in school funding, it has come at the direction of the court," Cook said. "We don't seem to have a Legislature that funds schools at an adequate level. We need that system to be untouched by politics."
Rich, the Washburn University law professor, said voters may not support changing the selection process if it is perceived to be fueled by the school finance lawsuit.
"The public might not go along with trying to change the court just in response to such a thing as providing an increase in funding in education," he said.
But Senate Vice President Jeff King, R-Independence, who has been a leading advocate for changing the judicial selection system, said any characterization of judicial selection reform being linked to school finance "is just false."
And John Robb, an attorney representing the school districts suing the state, said he doesn't believe the politics of the Statehouse will affect the outcome of the case.
"The school finance system is again unconstitutional and must be fixed," Robb said. "I am confident that, in the end, the court will do its job and that the Legislature and the governor will respect the court's decision and do their jobs also. That is our constitutional form of government."
Mark Desetti, a lobbyist with the Kansas National Education Association, said he believes the justices on the court will rule on the facts of the case and the Kansas Constitution and not be swayed by the politics in the Statehouse.
He said regardless of how the court rules, conservatives are going to fight to change the selection process.
"This is about abortion politics, this is gun politics," he said. "This is about control of all three branches of government."
The issues of school funding and judicial selection are bound to be hot topics during next year's gubernatorial race.
House Minority Leader Paul Davis, D-Lawrence, who is running for governor, said, "Gov. Brownback has aggressively worked to centralize power within his office and weaken our time honored tradition of checks and balances. He has also been adamantly opposed to restoring funding to Kansas public schools. It certainly appears that his plan to politicize the judicial branch is connected to his desire to sidestep the court's order to properly fund public education."