The politics of courts: Two cases will put judges in the crosshairs

? Two high-profile cases will go before Kansas appellate courts next week that will put the judges and justices deciding those cases in the crosshairs of electoral politics.

On Wednesday, all 14 judges of the Kansas Court of Appeals will sit together to hear the state’s appeal of a lower court decision striking down a new law banning a certain type of abortion procedure.

And on Thursday, the Kansas Supreme Court will review another lower court ruling involving the court’s own power to supervise lower courts. In that case, a lower court struck down a new law stripping the Supreme Court of its authority to appoint chief judges of the district courts.

Both cases have already attracted national media attention, for different reasons. The abortion case is believed to represent the first time that a Kansas court has ever said that the Kansas Constitution guarantees a right to an abortion. And the judicial selection case is seen by some as a direct threat to the independence of the Kansas judiciary because lawmakers have also passed a bill saying if the new selection law is overturned, all funding for the court system will also become null and void.

But they are also being watched closely, both inside and outside of Kansas, for another reason. A majority of the jurists hearing those appeals — six of the 14 Court of Appeals judges, and five of the seven Supreme Court justices — will be up for retention in the 2016 elections. And some experts are already predicting those elections will draw a flood of money from outside interest groups seeking to change the makeup of those courts.

Politicizing courts nationwide

“I think Kansas has been swept up in a national trend,” said Scott Greytak, senior policy counsel for Justice at Stake, a Washington-based group that advocates for judicial independence in state courts.

“Kansas has been a recent iteration of this (national) trend of making retention elections more politicized, and putting justices in a very difficult position, instead of evaluating them based on their work, based on their competence, evaluating them based on public opinion,” he said.

In a recent report, “Bankrolling the Bench,” researchers at Justice at Stake noted that money has been flowing into election and retention races for state Supreme Court justices at an alarming rate in recent years, with a growing amount coming from independent political groups that are not required to disclose their sources of funding or how they spend their money.

During the 2013 and 2014 elections nationwide, the group said, spending by outside political groups in state judicial races reached a record $10.1 million, or 29 percent of all the total amount spent on those races.

The group noted that the amount has risen sharply since the U.S. Supreme Court’s Citizens United v. FEC decision, which opened the door to unlimited spending on independent political campaigns by corporations and labor unions.

The 2014 campaign

Kansans got their first taste of high-power electioneering in a judicial race last year when Gov. Sam Brownback, with help from other outside groups, openly campaigned against the retention of two Supreme Court justices.

Justices Eric Rosen and Lee Johnson joined in a majority opinion that vacated the death sentences of Jonathan and Reginald Carr, who’d been convicted of a gruesome quadruple homicide in Wichita that occurred in December 2000. Although the court upheld their convictions, it found errors in how the penalty phase of the trial was carried out, and it remanded the case back to the trial court for new sentencing.

Despite that, the Brownback campaign ran television ads criticizing the “liberal judges who let the Carr brothers off the hook.”

In addition, relatives of some of the victims in that massacre formed a group, Kansans for Justice, which launched a website that solicited donations and urged viewers to get involved in defeating Rosen and Johnson for retention.

Both justices survived their retention races, but by a much closer margin than usual, 53-47 percent. That contrasts with the 2010 elections in which four justices were up for retention, and each won with an average 63 percent of the vote.

The 2016 races

One group has already announced that it will be watching the Court of Appeals case, with plans for campaigning against judges that it deems to have voted the wrong way.

Kansans for Life, the state’s largest anti-abortion group, pushed hard for the new law banning a procedure commonly used in second trimester abortions.

In July, a Shawnee County judge issued an injunction blocking the state from enforcing that law, saying it placed too much of a burden on women seeking an abortion.

KFL’s executive director Mary Kay Culp called the case a “high priority” and said the group’s political action committee will be actively involved in opposing the retention of any judge who votes to overturn the law.

Meanwhile, the Supreme Court will hear an appeal of another decision by the same Shawnee County judge, Larry Hendricks, involving a law that strips the Supreme Court of its power to appoint chief judges in the district courts.

On its surface, the case might appear mundane, but it has gained national attention because lawmakers have also passed a budget proviso that says if the law is overturned, all funding for the judicial branch becomes null and void.

Many see that law, and the case challenging it, as part of a long-running battle between the legislative and judicial branches that dates back to the Supreme Court’s 2005 decision ordering the Legislature to approve more funding for public schools, an issue that is also at the center of another case pending before the Supreme Court this year.

Mike O’Neal, a former Speaker of the House who is now president of the Kansas Chamber, insists that his organization will not be involved in any independent campaigns for or against the retention of judges based on that issue.

But, as was the case in 2014, it is highly possible that candidates running for the Legislature or other public offices may use those decisions as part of their own campaign platform.