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Wednesday, July 30, 2014

Justices on ballot draw little noise this year

BY FRED MANN
The Wichita Eagle

An important issue for voters on Election Day is whether to retain four of the seven Kansas Supreme Court justices.

Not that you'd know it. There hasn't been any fireworks over it, especially compared to races for the governor's mansion, U.S. Senate and 4th Congressional District.

Even the race for Kansas secretary of state has generated more heat.

The anti-abortion group Kansans for Life, which opposes retaining any of the justices, is mum about its plans to campaign against them, even though it announced a "Fire Beier" campaign in February aimed at ousting Justice Carol Beier.

"Keep 'em guessing," Mary Kay Culp, the organization's executive director, said in refusing to discuss the group's plan.

And an opposing group is waiting to see whether it will have to launch its own campaign to counter any late campaign by Kansans for Life.

"We really want to be more of an education arm than have to combat some last-minute pieces," said Jane Deterding, treasurer for Justice for Kansas Inc.,

which supports the judges. "But we're certainly in gear to do that, if necessary."

The four judges up for retention —Beier, Chief Justice Lawton Nuss, and Justices Dan Biles and Marla Luckert — are keeping quiet, too.

They are allowed to campaign for their jobs if there's a move to oust them, but none of the four are doing so, said Ron Keefover, court spokesman.

The justices weren't available for comment.

Political pros are curious about the lack of noise on the issue.

"It really has been very, very quiet," said Burdett Loomis, political science professor at the University of Kansas. "It's somewhat surprising."

While the Republican party may have been expected to sound off against the justices, they haven't, Loomis said, perhaps in part because social issues haven't emerged as major themes in any of this year's campaigns.

"It's a Republican year," Loomis said, "but that's not enough to throw out a Supreme Court justice. It would be a third-party effort.

"I really don't think the parties, by and large, want to get much involved."

Retention votes

Kansas Supreme Court justices are subject to a retention vote after their first year in office. If a majority of electors vote to retain them, they remain in office for a six-year term, and are subject to a retention vote at the end of each term.

No justice in Kansas has lost a retention vote.

The Kansas Commission on Judicial Performance has recommended all four justices on the Nov. 2 ballot be retained, based on surveys of attorneys and other judges who have had dealings with the high court.

Culp, of Kansans for Life, feels her organization has to compete against those evaluations. But she declined to say how her group will proceed between now and Election Day, and how much it will spend.

She said the group will follow its usual practice of mailing postcards to voters with a sample ballot on the back indicating Kansans for Life's endorsements, and include the judges on the ballot.

Culp wouldn't disclose how much the organization has raised for the effort. In Kansas, campaign finance laws don't apply to judicial retention votes, so there are no disclosure requirements.

The two sides

The Kansans for Life campaign started last winter as an effort to dump only Beier, who wrote opinions in 2006 and 2008 strongly criticizing former attorney general Phill Kline's conduct in investigating abortion clinics.

It evolved into an effort to oust the other justices, and ultimately to change the system by which they are selected. Kansas is one of 13 states where governors appoint justices to the high court from a list of finalists submitted by a nominating commission, independent of state legislators.

Culp said the campaign was born from her disgust from the how the Supreme Court handled Kline's case against former Wichita abortion provider George Tiller when Kline was attorney general and Johnson County district attorney.

She was further angered when Beier strongly criticized Kline in a 2008 ruling, writing that Kline "exhibits little, if any, respect" for the court or the rule of law.

Dissenting justices said they were troubled by the comments. Then-Chief Justice Kay McFarland wrote that the comments were designed to threaten and "heap scorn" upon Kline and were inappropriate.

The complaint against Biles, the newest member of the court, is that he is law partner of Larry Gates, head of the Democratic Party, "which cashed Tiller's checks for years," Culp said.

Culp said Nuss "is part of decisions we disagreed with," and also had an ethical problem for discussing an active school-finance case over a lunch with state senators.

Culp said Luckert was part of the majority in abortion decisions, and she "had a problem" over an opinion Luckert wrote in a 2005 case in which the court unanimously decided the law shouldn't punish illegal underage gay sex more harshly than illegal underage straight sex.

Deterding said Justice for Kansas formed in late summer to defend the justices and the state's system of selecting them.

"We're just trying to get the message out there that there is an independent body that reviews the justices," said Deterding, who is executive vice president and general counsel for Citizens Bank of Kansas.

Deterding said Justice for Kansas has 170 donors and has raised about $50,000. Its membership includes Republicans and Democrats, she said.

"We don't see this as a Democratic issue or a Republican issue. It's just what makes sense," Deterding said.

She called Kansans for Life effort to oust the justices "universally unfair."

"Just because someone is pro life or not is not a good reason to vote a judge out," Deterding said.

"To keep the judicial system independent in Kansas, you can't have justices that are fearful of being booted out because they write an opinion that is contrary to what a large group might be for or against," she said.

Performance surveys

The four justices scored well in surveys by the commission on judicial performance, which was formed by the Legislature in 2006 to provide feedback for the judges and give the public an idea about how well they perform their duties on the bench.

The commission includes six lawyers, six non-lawyers and a chairman who is an attorney. It evaluates trial judges as well as appellate judges based on surveys.

It contracts with Talmey-Drake Research and Strategy, of Colorado, to perform the surveys. The firm sends questionnaires to those affected by the courts, including defense attorneys, litigants, jurors, witnesses, victims, law enforcement officers, prosecutors, probation officers, court employees, judges and others.

Questions concern a judge's overall legal ability, impartiality, temperament and communication skills, among other categories.

For Supreme Court justices, questionnaires are sent to attorneys who appeared before them and district court and appellate judges whose cases were reviewed by them, said Randy Hearrell, the commission's executive director.

The scores were released in late August. Beier received an overall average score of 3.55 on a scale of 4.0 from attorneys, and a 3.58 from judges.

The commission requires at least a 2.0 average in each category to recommend retention, although the commission will consider raising that average at a meeting in November, Hearrell said.

Luckert received a 3.56 from attorneys and a 3.68 from judges. Biles got a 3.46 from attorneys and a 3.61 from judges.

Nuss was given a 3.34 overall average by attorneys and a 3.52 by judges.

Questionnaires regarding the four justices were sent to 401 attorneys, and 117, or 29.2 percent, responded. They were sent to 184 judges, with 128 responding.

Survey results for all judges up for retention in Kansas are available on the commission's web site, kansasjudicialperformance.org.

Culp said her organization can't compete with the performance commission, which operates on a $700,000 budget and conducts a widespread campaign to publicize its evaluations.

The campaign includes radio spots, "post-it" notes on the front of the state's 20 largest newspapers; advertisements in 128 smaller newspapers; ads on newspaper and television websites; more than 20,000 brochures distributed to courthouses, libraries and lawyers; advertisements in magazines and newsletters of state and local bar associations; links on websites of organizations such as the League of Women Voters; news releases; and interviews of commission members it arranges for journalists.

"Can we fight that battle evenly?" Culp said. "No. So what's going to happen? I don't know. I don't even want to say.

"Call us cynical but this seems more like propaganda than our own Beier campaign, and with our own tax dollars," she said.

Hearrell said the commission's funds come from court docket fees, not tax dollars. Most of the $700,000 budget — about $400,000 — goes to the survey effort. That includes its contract with Talmey-Drake and computer software, he said.

The goal of the campaign, he said, is to educate the public about the evaluations and the commission.

"None of the advertising has any recommendation specific to any judges," Hearrell said.

Reach Fred Mann at 316-268-6310 or fmann@wichitaeagle.com.

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