Democratic lawmakers and education advocates say Gov. Sam Brownback’s push to change the way the state’s Supreme Court justices are selected is actually a veiled attack on public education.
Brownback rolled out two ambitious goals in his State of the State address earlier this month – change the state’s school finance formula and change the way justices are selected.
Republican leaders contend that the current formula is broken and that the court’s current selection process, which relies on a nominating commission to provide nominees to the governor, is undemocratic and leaves the court unaccountable to the people.
Brownback floated two options he said would be more democratic: move to the federal system in which the executive branch makes appointments that go before the Senate for confirmation or move to direct elections of Supreme Court justices. These changes would require a constitutional amendment.
The current system relies on a nine-member commission to choose nominees, with four of those members appointed by the governor and the other five selected by a vote of the state’s practice attorneys, from a pool of applicants.
Senate Vice President Jeff King, R-Independence, chairman of the Senate Judiciary Committee, called the current system the least democratic or accountable in the country.
“We are the only state where the process is controlled by the attorneys in the state. It’s basically attorneys choosing which attorneys decided cases tried by attorneys. … That is a non-democratic process. It’s not accountable to the broader electorate,” said King, who opposes the current system despite being an attorney himself.
But some lawmakers say that the goal is actually to make a more conservative court, one that would be less likely to rule against the state in school finance cases.
“Is there anybody who doesn’t think it’s connected?” said Rep. Jim Ward, D-Wichita, an attorney and member of the House Judiciary Committee. “It’s absolutely connected. They cannot win the school finance lawsuit on its merits … so you’ve got to fix the game.”
Mark Desetti, legislative director for the KNEA, the state’s largest teachers union, said either the two policy goals are linked or it’s “an amazing coincidence.”
“One is being done because of the other,” Desetti said.
The governor’s office issued a statement that did not respond to Ward and Desetti’s claims, but made a general pronouncement that “with the Court involving itself in so many public policy issues, it is time the selection process be more democratic.”
King disputed that the policy goals were intertwined, arguing that the debate over judicial selection predates the current school finance case of Gannon v. Kansas.
Still, many conservative lawmakers do point to school finance when discussing their dissatisfaction with the court, pointing to the Montoy case, the precursor to the current litigation.
In the 2005 decision in the Montoy case, the court usurped the Legislature’s authority to appropriate funds, “and that is totally unconstitutional,” said Rep. John Rubin, R-Shawnee.
Rubin, a former federal judge, said his first choice would be for the state to adopt the federal model, which he says has served the country well since its founding.
“And when we have a court comprised of members, a majority of whom could render a decision like they did in Montoy, it’s time to revisit how we select our Supreme Court justices,” Rubin said.
Rep. Mark Kahrs, R-Wichita, agreed the issues were related, saying many lawmakers believed the court had overstepped its bounds in previous school finance cases.
Brownback’s sole appointee to the court, Justice Caleb Stegall, wrote a paper blasting the Montoy decision for the Kansas Policy Institute, similarly arguing that the court had usurped the Legislature’s power.
A three judge panel ruled in December that the state was unconstitutionally underfunding schools. Complying with the panel’s ruling could cost the state more than $500 million a year on top of current funding levels.
Attorney General Derek Schmidt briefed members of the House Appropriations Committee on the case Friday, saying he planned to appeal and that the case would go before the Kansas Supreme Court in the near future. He said he hoped a final ruling would come down by 2016.
Brownback called to repeal the school finance formula and shift to block grants for the next two years as the Legislature works toward crafting a new formula.
John Robb, the Newton attorney who represents the school districts challenging the funding levels, assured that repealing the formula would not nullify the litigation.
“The court didn’t find that there was anything wrong with the formula. The court found that the amount of resources appropriated to the schools was insufficient,” Robb said. “And that amount is going to be insufficient whether it’s under the current formula, whether it’s under a block grant or they come up with a brand new formula if they don’t increase the resources.”
This is precisely why some lawmakers say Brownback wants to remake the courts.
Brownback’s proposed budget for next year cuts more than $100 million from classroom aid. And even when spending increases in other areas of the budget are factored in the cut stands at $22 million.
Rep. John Carmichael, D-Wichita, ranking Democrat on the Judiciary Committee, said there’s “been an attempt to blackmail our courts by essentially saying if you issue rulings that members of the Legislature don’t like…we’re going to come after you and essentially oust you from office.”
Carmichael argued that moving to direct elections would allow dark money groups to overwhelm the selection process.
In addition to Brownback’s push to change the selection process, several other Republican lawmakers have pushed policies that could change the makeup of the court.
Sen. Dennis Pyle, R-Hiawatha, has introduced a bill that would require judges to get two-thirds support in retention races to keep their spots on the bench.
If that policy had been in place this past fall, Justices Eric Rosen and Lee Johnson both would have been ousted from office.
The five other justices on the Supreme Court stand for retention in 2016.
Rep. Charles Macheers, R-Shawnee, has introduced legislation, which would lower the retirement age for justices to 65.
Chief Justice Lawton Nuss is 63. Johnson is 67 and would already be past that retirement age.
Contributing: Brad Cooper of the Kansas City Star