Gov. Sam Brownback could appoint a majority on the Kansas Supreme Court if efforts to oust four of seven justices succeed in November.
Four of Brownback’s gubernatorial predecessors have joined a campaign to ensure that doesn’t happen.
The judicial retention races – the only statewide races aside from the presidential and Senate races – promise to feature fiery rhetoric on a range of issues, including abortion and school funding, and ample spending on campaign ads.
However, Kansans likely will never know who spends money on either side because the retention races for the Kansas Supreme Court and the Kansas Court of Appeals fall outside the state’s campaign finance act. Neither side has to disclose its donors.
Brownback, who would get to appoint a replacement for any justice not retained, vocally backed efforts to oust justices in 2014 but has been relatively quiet on the subject this year. He would not answer a question about it at a news conference on Wednesday, joking that he could not hear it.
His spokeswoman said in an e-mail on Friday that he does not plan to take a position on the retention voting.
If there is a vacancy on the court, the governor would pick from nominees approved by a nine-member commission.
Here’s a look at key organizations involved in the races.
Kansas Republican Party
The state Republican Party opposes the retention of four justices on the ballot this year: Chief Justice Lawton Nuss, Carol Beier, Dan Biles and Marla Luckert. It supports retaining Justice Caleb Stegall, who was appointed by Brownback in 2014.
The party will not spend resources on the campaign, said Clay Barker, executive director of the Kansas Republican Party. But if registered Republicans ask for guidance on the retention races, state and county party officials will provide it.
“In the past, we used to always say we didn’t have a position, and people would get irate,” he said.
In the past, we used to always say we didn’t have a position, and people would get irate.
Clay Barker, executive director of the Kansas Republican Party
The state House Republican caucus is taking a more active role, devoting two e-mail newsletters in the past two weeks to anti-retention efforts.
“The record of the four justices speaks for itself clearly. … They have been scolded on numerous occasions by the U.S. Supreme Court for not following the constitution and using reasoned judgment,” an August e-mail from the House GOP caucus said. “They routinely confound judicial observers by using their own erratic and illogical method of interpretation.”
Those e-mails were written by the staff of House Speaker Ray Merrick, R-Stilwell, who will retire from the Legislature at the end of the year. They reach a wide audience of Republican supporters.
Kansans for Fair Courts
The main group promoting retention of all five justices is Kansans for Fair Courts. It is affiliated with the Kansas Values Institute, which backed Democrat Paul Davis in the 2014 race for governor.
Four former governors have joined the campaign. Republicans Bill Graves and Mike Hayden will appear with Democrats John Carlin and Kathleen Sebelius at closed-door events in Wichita and other cities this week to promote retention.
Nuss and Luckert were appointed by Graves; Beier and Biles were appointed by Sebelius.
“The governors agree that the retention of the justices is the most important state issue on the voters’ ballots in November,” said Joyce Morrison, spokeswoman for the organization.
She called the campaign against the justices unprecedented and said that if Brownback is able to appoint a majority on the court, that would threaten its impartiality.
Obviously that impacts the court probably for another 30 years, so there is a lot at stake.
Joyce Morrison, spokeswoman for Kansans for Fair Courts
“Obviously that impacts the court probably for another 30 years, so there is a lot at stake,” Morrison said.
Kansans for Justice
This group, formed by friends and family of the victims of the Carr brothers, is dedicated to ousting the justices who overturned death sentences for Jonathan and Reginald Carr in 2014. That ruling has since been reversed by the U.S. Supreme Court.
Kansans for Justice mounted an unsuccessful campaign against two justices in 2014. It is now campaigning against the other four justices who were part of the Carr decision. Stegall joined the court after that decision and is not a target of the group.
We have justices who are not following their oaths … and it’s time for somebody to stand up and say something.
Amy Scott James, whose boyfriend Brad Heyka was one of four people killed by the Carr brothers in 2000
“We have justices who are not following their oaths … and it’s time for somebody to stand up and say something,” said Amy Scott James, whose boyfriend Brad Heyka was one of four people killed by the Carrs in east Wichita during a December 2000 home invasion that also involved rape and robbery.
James said the decision to mount a campaign against the justices was difficult.
“We knew that every time we talked about it, it’s put in the paper and the Carr brothers’ pictures will be there. And then it gets shared on social media. And every single time that happens, it pulls on people and hurts people … and so we had to weigh is it worth it?” she said. “And so we reached a point where when they overturned it in 2014, it was worth it.”
James, a Democrat, said the group is nonpartisan.
Some prominent Republicans are supporting the effort. Toni Porter, a former aide to U.S. Rep. Mike Pompeo, has been doing work for the group. James said Mark Dugan, Brownback’s former campaign manager, has also advised the group on some matters. She said Dugan has a personal connection to the case because his eighth-grade teacher was the mother of Heather Muller, one of the victims.
Four of the five justices have formed corporations to raise money to support their retention, which is allowed under Kansas law.
The exception is Biles, who said in an e-mail that he has “not formed a committee, nor am I accepting money from others to support my retention.”
Unlike legislative campaigns, the justices will not have to report who contributes to their organizations. Their corporations do have to register with the secretary of state’s office.
Stegall said in an e-mail that he believes the campaign activities of his group, the Committee to Retain Justice Stegall Inc., will be minimal. “I have been shielded from the details in order to protect my judicial role,” he added.
The state’s judicial code of conduct notes that justices must “avoid impropriety and the appearance of impropriety.”
The organizations formed to support the other justices are the Friends of Chief Justice Lawton Nuss Inc.; Kansans for Justice Luckert Inc.; and Justice Carol A. Beier 2016 Inc.
Kansans for Life
The anti-abortion group, which helped boost Brownback in 2014, has set up an organization called Better Judges for Kansas that encourages voters to “Reject all but Stegall.”
The organization also seeks to oust four Kansas Court of Appeals judges. It cites a split decision upholding a lower court’s ruling that blocked restrictions on a type of abortion based on a finding that the Kansas Constitution guarantees a right to an abortion.
That matter is pending before the state Supreme Court.
These four are people who have voted against us in the court cases that go back a ways.
Mary Kay Culp, executive director of Kansans for Life
“I think we pretty much know where they’ll come down,” said Mary Kay Culp, Kansans for Life’s executive director. “These four (justices) are people who have voted against us in the court cases that go back a ways.”
Culp referred to Beier as a “third-wave feminist” and said “they (feminists) almost look at abortion as a sacrament of sorts. They’re just 100 percent for abortion anytime, anywhere, any place.”
The group’s website also features a link to an article about how a 2014 court decision could lead to the early release of more than 200 convicts. Culp said it should not have been posted “because it’s not our issue” and that it would be taken down. The link still was displayed on the homepage on Friday.
Planned Parenthood Great Plains Votes said it planned to focus on legislative elections. But its president and CEO, Laura McQuade, said in a statement: “We believe, as all Kansans do, that fair and impartial courts are crucial, and we’re disappointed to see extreme political interest groups politicizing our judicial system.”
Kansas National Education Association
The state’s largest teachers union is also likely to play a role in the retention races.
Mark Desetti, legislative director of the KNEA, said the anti-retention campaign is connected to the ongoing legal dispute over school funding.
What they care about is a Supreme Court that continues to hold the Legislature accountable for their constitutional obligations under school finance.
Mark Desetti, legislative director of the KNEA
“I don’t think the issue has anything to do with the death penalty or abortion,” Desetti said. “What they care about is a Supreme Court that continues to hold the Legislature accountable for their constitutional obligations under school finance. That’s what this is all about.”
The court will hold oral arguments on Sept. 21 on whether school funding is adequate and probably will rule before a new justice could be seated. But additional court actions on school finance could come after that.
The KNEA backed Davis in 2014. Desetti called the retention races “more fundamental.”
“The gubernatorial race was about the general direction of the state,” Desetti said. “This race is about whether our state remains a democracy in the American sense of the separation of powers … and the ability of the court to step back and rule on the constitution, not the political whim of the day.”