Flanked by Justice Eric S. Rosen, left, and Chief Justice Lawton R. Nuss, right, Justice Marla J. Luckert questions an attorney for Reginald Carr as during a hearing before the Kansas Supreme Court Tuesday, Dec. 17, 2013 in Topeka, Kan. The hearing was the first of two held on separate appeals by Carr and his brother Jonathan Carr, who were sentenced to death for the shooting deaths of four people on Dec. 15, 2000, as the victims knelt on a field in Wichita, Kan. (AP Photo/Charlie Riedel)

Topeka ? This year’s Supreme Court retention races in Kansas are drawing a large amount of campaign spending, according to a new report, but a loophole in the state’s disclosure laws prevents anyone from knowing the true total or where the money is coming from.

“Not only do you not get any information about where the money is coming from, even the groups are not required to disclose their spending,” said Alicia Bannon, an attorney at the Brennan Center for Justice, which tracks campaign spending in judicial races.

Bannon said the only publicly available data on campaign spending in Kansas judicial races comes from contracts to purchase air time on radio and TV that are reported to the Federal Communications Commission.

According to a report the Brennan Center released last week, the increased spending in Kansas is part of a national trend. In 10 states that are holding high court elections this fall, including Kansas, special interest groups have already lined up to buy $3.5 million worth of radio and TV advertising time.

In Kansas, where retention elections have gone largely unnoticed until recent years, as of Thursday, Oct. 20, outside groups had contracted to buy $202,290 worth of radio and TV ad time to campaign for or against retaining the five Supreme Court justices on the ballot.

Of that, 58 percent, or $118,084, is being spent by Kansans for Justice, a group campaigning to oust four of the five justices on the ballot. The remaining 42 percent, or a little more than $84,206, is being spent by Kansans for Fair Courts, a group campaigning to retain all five justices on the ballot.

And while that may not sound like much, Bannon said, it typically doesn’t take very much spending to influence a judicial race, especially in a small, inexpensive media market like Kansas.

“State Supreme Court races tend to be pretty low-information races,” she said. “Most people don’t know a lot about their state Supreme Court. They don’t know a lot about the justices that are standing for election. And for that reason, oftentimes it doesn’t necessarily take a lot of money to have a big impact in these races because the few attack ads that are being broadcast might be the only piece of information that people have about some of these candidates.”

The Carr brothers

The central issue for the group campaigning to oust four of the five justices on the ballot is the Kansas Supreme Court’s 2014 decision vacating the death sentence of two men convicted in a notorious murder case, brothers Jonathan and Reginald Carr.

They were convicted and sentenced to death for torturing, raping and killing four people and attempting to kill a fifth person in an execution-style slaying in December 2000 that was part of a days-long crime spree.

The court ruled 6-1 in that case that the death sentences were improper because the trial court had denied a request to hold separate sentencing hearings for the two brothers. A sister of the defendants had wanted to testify in defense of one of the brothers but couldn’t do so in a joint hearing without damaging the case of the other brother.

The court remanded the case back for new sentencing, but the U.S. Supreme Court later overturned that decision.

That case was an issue in the 2014 elections when the campaign of Gov. Sam Brownback, who was running for re-election, ran TV ads urging voters to vote against retaining two of the justices who had voted with the majority: Eric Rosen and Lee Johnson. Both narrowly won retention that year.

The other four justices who voted to vacate the death sentence are up for retention this year: Chief Justice Lawton Nuss and Associate Justices Carol Beier, Dan Biles and Marla Luckert.

The only justice who voted to uphold the death sentences, former Justice Nancy Moritz, has since been appointed to the federal bench at the 10th U.S. Circuit Court of Appeals.

Kansans for Justice began running TV ads earlier this week, calling the Supreme Court “out of control,” and criticizing the justices for a string of death penalty cases that were also later reversed by the U.S. Supreme Court.

The ad features former Sedgwick County Undersheriff Danny Bardezbain saying, “The Kansas Supreme Court has done enough to these victims’ families. These guys had a fair trial and deserve the sentence they received.”

Other issues

But Kansans for Fair Courts, the group campaigning to retain the justices, says it doesn’t believe that the death penalty is the real issue, although it does not question the sincerity of the Carr brothers’ victims.

Kansans for Fair Courts spokeswoman Joyce Morrison said that behind the scenes, this year’s retention battle is really an extension of the long-running animosity that Gov. Sam Brownback and many Republicans in the Legislature have felt toward the court over issues such as school funding and abortion.

“We believe this is an effort for the governor to take control of the judiciary, the governor and his allies, and they have been very clear in the last few years that they are unhappy with the court,” Morrison said. “They want to see justices on the court who would be more in their line with their way of thinking, and would rule in ways they would be supportive of.”

Under the Kansas Constitution, governors appoint Supreme Court justices from a list of nominees selected by a nonpartisan Supreme Court Nominating Commission. Justices then must stand for retention in the first general election after their appointment, and then every six years thereafter.

In addition to the four justices involved in the Carr brothers decision, the other justice up for retention this year is Caleb Stegall, whom Brownback appointed to the court in 2014, a year after the Carr brothers decision.

People campaigning to reject the other four justices have used slogans on bumper stickers and other material saying “Reject all but Stegall.”

Bannon said that in other states where high court justices stand for election or retention, it is common for groups that have other interests in the court to campaign on high-profile emotional issues involving criminal justice.

“We look at elections around the country,” she said, “and it’s quite common when you look at advertisements that focus on criminal justice issues, that when you look at the money behind those advertisements, that it’s actually coming from business interests or plaintiffs lawyers or other groups that don’t have any real connection to criminal justice issues.”

In Kansas, however, that’s virtually impossible to know because the state’s campaign finance laws do not apply to judicial retention elections. Judges themselves are not allowed to raise money, spend money or actively campaign. But independent groups can do so, and they are not required to disclose how much they spend or who contributes to the campaigns.

Kansas Court of Appeals

In addition to the campaign involving the four Supreme Court justices, six of the 14 judges on the Kansas Court of Appeals are on the ballot for retention this year, and they have also drawn interest from outside groups including Kansans for Life, the state’s largest anti-abortion lobby group.

In January, all 14 judges heard the appeal of a Shawnee County District Court ruling that blocked enforcement of a new law banning the use of a commonly used abortion procedure known as dilation and evacuation, or “D and E,” a procedure that abortion opponents have dubbed “dismemberment abortion.”

The court split evenly, 7-7, on that case, meaning the lower court’s ruling was allowed to stand, pending a further appeal to the Supreme Court, which has not yet heard arguments.

Of the six Court of Appeals judges on the ballot in November, four voted to continue blocking enforcement of the new law: Steve Leben; Joseph Pierron Jr.; Karen Arnold-Burger; and G. Gordon Atcheson.

Two judges up for retention voted to reverse the lower court and allow the new ban to take effect: David Bruns and Kathryn Gardner.

Former Kansas Gov. John Carlin spoke about the Court of Appeals during remarks last week to the Kansas Association of School Boards.

“So there’s really a total of 11 that will be voted on in terms of retention,” Carlin said, referring to both the Supreme Court and Court of Appeals retentions. “And if those who want to defeat these judges are to be successful, and these 11 would not be retained, the current governor would have 11 appointments.”

Carlin noted that Kansas lawmakers in 2013 changed the method of appointing Court of Appeals judges, doing away with the nonpartisan nominating committee for that court and empowering the governor to make appointments directly, subject to Senate confirmation. They stand for retention on four-year cycles.

Lawmakers were able to change the Court of Appeals nominating process because that court was created by statute. And while Brownback and some GOP lawmakers have called for changing the selection process of Supreme Court justices, that would take a constitutional amendment that must be approved by two-thirds majorities in both chambers and a majority of voters in a statewide general election.