Kansas faces an unprecedented threat to the independence and fairness of our court system. Powerful special interests, financed largely through secret contributions, are seeking the removal, in one fell swoop, of a majority of the justices of the Kansas Supreme Court and a number of Court of Appeals judges.
Every voting Kansas member of the American College of Trial Lawyers believes this would be a tragic mistake.
Members of the ACTL are elected by peers based upon at least 15 years of significant litigation experience. We are a diverse group of Kansas lawyers, with members who live and practice law in every part of this state and who have differing political, religious and ideological viewpoints. Yet, despite these differences, we agree as a group that Kansans must resist this political effort to undermine the Kansas judiciary.
There is no mystery about the goals of those financing this attack: They want to remove the judges up for retention so Gov. Sam Brownback can appoint replacements more to their liking. They also want to send a message to every other judge in this state: They better start deciding cases the “right way” or expect to be attacked.
This type of intimidation, if successful, will destroy the independence of our courts. And without that independence, no one appearing in court can be confident his or her case will be decided based upon the rule of law, as opposed to outside pressure. Loss of independence also destroys the judiciary’s ability to carry out its most sacred obligation to defend the Constitution.
Yes, some Kansas court decisions have been the subject of honest disagreements. Deciding controversial, even gut-wrenching, issues is part of the job description of every judge. The correct answer is often uncertain, and rarely will everyone be happy with the outcome.
This points to the absurdity of the argument being made that the Kansas justices do not deserve to be retained because the U.S. Supreme Court disagreed with them in one highly publicized case. Nonsense. Judges often disagree. The greatest judges in history have had decisions overturned. This is part of the process – and one of its most important protections.
What is critical is not that the decisions of judges always be “right,” as viewed from each individual’s perspective – which, of course, is impossible. Rather, it’s that judges reach these judgments based upon their good-faith understanding of the law, and not in response to political pressure.
Kansans should reject this misguided effort to remove the membership of the state’s two highest courts in mass – not for the sake of the individual judges themselves but for the guarantee that every Kansan will continue to have access to independent courts fairly applying the rule of law.
Steven C. Day is a Wichita attorney and chairman of the Kansas State Committee of the American College of Trial Lawyers.