Chief Justice Lawton Nuss recuses self from Kansas judicial power case

Chief Justice Lawton Nuss will recuse himself from a case involving the power and budget of the court, while the other Kansas Supreme Court justices will be on the bench when the case is heard Thursday.

The case will determine whether the Kansas Legislature overstepped its constitutional power when it passed a law in 2014 changing the way district court chief judges are chosen. Under the new law chief judges are elected by their peers, whereas they had previously been appointed by the state Supreme Court. Nuss and other members of the court had spoken out strongly against the legislation before its passage and the day Gov. Sam Brownback signed it into law.

The suit, brought by Judge Larry Solomon, seeks to overturn the law and restore the old system.

Attorney General Derek Schmidt had called for the justices to recuse themselves, arguing the case presented a conflict of interest because it involves the justices’ own powers and the justices’ previous public comments called into question their ability to hear it objectively. In a 35-page order released late Monday the court found that Kansas law does not requires the justices to step aside from hearing the case.

Nuss still chose to recuse himself, but the court noted that he was under no requirement to do so. The only justice who was not on the court when it publicly criticized the legislation is Justice Caleb Stegall, who was appointed to the court by Brownback in late 2014.

Stegall wrote in an addendum to the order that there “is a vast difference between the very real public interest in constitutional governance which is at stake in all constitutional controversies and is shared equally by all citizens – including judges – and the kind of wholly private or personal interest in the outcome of a case (for example, direct financial interests, an intimate relationship with a party, etc.) which can require recusal.”

The case could have major ramifications beyond how District Court chief judges are selected. Lawmakers passed another bill in 2015 that would nullify the entire judicial budget if the policy at the center of the Solomon case is struck down, a move that many political observers saw as an attempt to bully the courts into ruling in the Legislature’s favor.

That law is being challenged in a separate lawsuit and has been stayed from going into effect until after lawmakers return to Topeka next month.

This story was originally published December 7, 2015 at 5:24 PM with the headline "Chief Justice Lawton Nuss recuses self from Kansas judicial power case."