Justice Marla Luckert may have won over a few fans Tuesday afternoon when she told a gathering of high school seniors, “I’m a nerd. I love to do research and write, which is one reason I love my job.”
Luckert is senior justice on the Kansas Supreme Court. She and Chief Justice Lawton Nuss were in Iola for the greater part of the day and into the evening to meet with students from seven area high schools and members of the public to discuss their roles on the High Court.
For the students, the hour-long session included a brief overview of the court system as well as a mock trial regarding an actual case that made its way to the U.S. Supreme Court. The students interacted with the justices, showing they were up to snuff in their civics lessons.
Luckert explained how the three branches of government help guard against a concentration of power in one over another. Luckert referred to James Madison, an author of the U.S. Constitution, who argued for the system saying, “If men were angels, no government would be necessary,” so pure would their every motive be. “But experience has taught mankind the necessity of auxiliary precautions.”
Luckert described the responsibilities of each branch as thus; the executive, the sword; the legislative, the purse; and the judiciary, as an arbiter of the law.
MORE AND more cases come the way of the Kansas Supreme Court, said Nuss. Last year, the justices reviewed about 900 cases of which they agreed to hear 73.
In Nuss and Luckert’s tenure, they have heard about 3,000 cases, he said. Of those only six have been appealed to the U.S. Supreme Court.
Nuss was first appointed to the high court in 2002 and became Chief Justice in 2010. Luckert was appointed in 2003.
The justices maintain Kansas has a superior system of nominating and retaining judges. Currently a commission nominates three to the court with the governor getting the final say. The nominating commission is comprised of nine members, five are attorneys and four are non-attorneys, representing the state’s four congressional districts. The governor appoints the lay members while attorneys select among their peers the other spots. The fifth attorney comes from a statewide vote of attorneys.
Fans of the process say it allows for wide representation on the panel, avoiding the influence of special interests of one region over another.
“It’s a somewhat grueling process,” Nuss said. “Attorneys are very hard on their peers. And the lay members are just as diligent.”
The justices then face retention elections every six years. Both Nuss and Luckert are on this year’s ballot, as well as justices Caleb Stegall, Carol Beier and Dan Biles.
The system is steeped in history, Luckert said, going back to Kansas City’s T.J. Pendergast who ran a “criminal empire,” from 1925 to 1939.
“If you didn’t have a pat on the back from Tom Pendergast you got nowhere,” Luckert said. “Everyone was elected, from the groundskeeper to the governor.”
Pendergast’s influence on several judicial elections convinced voters of the need to pass The Missouri Plan which implemented the merit system of appointing judges.
Kansas’s own “Triple Play” debacle in 1956 similarly convinced Kansas voters to change its constitution to the merit selection of judges.
In the “Triple Play,” outgoing Kansas Gov. Fred Hall convinced his Lt. Gov. John McCuish to appoint him to the Kansas Supreme Court. To make all the cards fall in place, sitting Chief Justice Bill Smith resigned on Dec. 31, 1956; Hall resigned as governor on Jan. 3, 1957 whereupon McCuish became governor and appointed Hall to the High Court. That was McCuish’s only official act as governor. Eleven days later, newly elected George Docking took office.
FOR ALMOST 60 years Kansas maintained the merit system for its appointment of judges to the state’s 31 District Courts, the Court of Appeals and the Kansas Supreme Court.
In 2013, however, that selection method for the 14 judges to the Court of Appeals came to a halt when state legislators, at Gov. Sam Brownback’s urging, gave the governor the sole privilege to nominate judicial candidates, upon Senate approval.
Because the Court of Appeals was not formed established until 1977 and thus was not included in the original constitution, legislators could enact the change with only a majority vote of legislators, Luckert said.
This year Gov. Brownback’s request for sole power to nominate members to the Kansas Supreme Court failed to pass in the Kansas House of Representatives. House members favored the proposed, 58-54. The vote needed a two-thirds majority, or 84 votes, to pass.
Ultra-conservatives have also tried to change how members of the court are elected and the service of their terms.
Currently, the judges need only a majority vote to be retained. Legislators asked that be changed to a two-thirds majority.
The justices also can serve until they are 75. Legislators asked that be changed to 65.
Both measures failed.
Legislators are elected by a majority vote with no age stipulation attached.
FOR ALL intents and purposes, the justices take the high road when confronted with such animosity by the executive and legislative branches.
Their guide is the state constitution, they say, which gives them an escape from politics.
Both justices have in their offices their oaths from when they took office. Luckert’s reads: “I, Marla J. Luckert, solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Kansas, and faithfully discharge the duties of Justice of the Kansas Supreme Court, so help me God.”
“Those words are the guiding force of our every day; to enforce the Constitution of the United States and Kansas,” Luckert said. “We will enforce the constitution and invalidate a law or regulation if it violates the state constitution.”
While that responsibility to the Constitution can be freeing, it also can be a burden.
“Our job is not to bend to the will of the majority,” said Nuss. “That’s what legislators and the governor do. They have their fingers to the wind to see what the people want. We’re the ones who grade the homework to see if it’s done properly.
Not all their decisions sit comfortably with them as individuals, they admitted.
“Our personal opinions don’t matter,” said Luckert. “We make some decision on our courts that we may not particularly like, but if it’s what the law demands, then that’s our responsibility.”
TO ILLUSTRATE her point Luckert showed a video clip to an evening audience at Iola High School’s lecture hall in which President Dwight Eisenhower explained his decision to send federal troops to Little Rock, Ark., the morning of Sept. 25, 1957 to escort nine African American students to school that morning.
The issue had to do with separate facilities – schools, restrooms, drinking fountains, etc. – for the races.
Though he personally thought the U.S. Supreme Court’s ruling to strike down the separate but equal provision was wrong, Eisenhower said he was bound to uphold the Court’s decision.
“Our personal opinions about the decision have no bearing on the matter of enforcement,” Eisenhower said. “The responsibility and authority of the Supreme Court to interpret the Constitution are very clear. A foundation of our American way of life is our national respect for the law.”
That very tension between the branches of government is what preserves a democracy, Nuss said.
“Otherwise you might as well have Julius Caesar or King George in power.”
SO HOW popular are the justices?
In their 56 years as a body, not a one has been denied retention.
But this year could be different because of a growing faction of ultra-conservatives who deem the justices as radicals primarily because of their votes concerning school finance.
In 2012, Kansas courts ranked fifth in the nation as perceived by U.S. businesses, according the U.S. Chamber of Commerce’s Institute for Legal Reform.
How a state’s judicial system is perceived makes a difference as to whether they might locate there to do business, the report said.
Four years later, Kansas courts have slipped to 19th place in the same survey.
Chief Justice Nuss had some inklings as to why, including:
â An inadequately funded Judicial branch is causing damage to the system including:
â Judges are leaving Kansas for better-paying positions elsewhere;
â Kansas trial judges now rank 50th in pay across the country;
â It’s been since 2008 that any state judge has received a raise, putting it in the bottom seven of states nationwide.
â A perception that Kansas leaders are not supportive of the courts and judges. News spreads quickly. So when Kansas legislators vote to cut the funding of the judicial branch or impeach justices they deem treasonous reaches the media, it’s bound to have a reaction, and almost always negative.
More and more cases come the way of the Kansas Supreme Court, said Nuss. Last year, the justices reviewed about 900 cases of which they agreed to hear 73. In their tenure, they have heard about 3,000 cases, he said. Of those only six have been appealed to the U.S. Supreme Court.
THAT JUSTICES Nuss and Luckert came to Iola was a unique opportunity, said Dan Creitz, chief judge of the 31st District Court.
But perhaps it was Bill LaPorte’s question at the evening program’s conclusion that resonated the most.
“How come I’ve never seen you before?” he asked the justices. “How can I know how to vote if you never campaign?”
Such is their inherent dilemma. Prohibited by law to actively campaign, they must rely on the help of others to toot their horns.
“I wouldn’t have it any other way,” Luckert said. “By our nature, we’re an introverted group.”
Nuss recommended the websites kscourts.org and kansasjudereview.org to better understand the issues and to see how the judges are rated.
