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Sunday, April 23, 2006

Courts - "A Kansas Supreme Court justice has removed himself from future discussions of the school funding case"

"A Kansas Supreme Court justice has removed himself from future discussions of the school funding case" was the headline to this story Friday in the Wichita Kansas Eagle. Some quotes:

TOPEKA - Kansas Supreme Court justice Lawton Nuss will no longer take part in deliberations over school funding, the court said Thursday.

His removal, at his request, resulted from a lunch meeting with two senators on March 1 that included a discussion of school finance, court spokesman Ron Keefover said.

Sometime after the meeting, Keefover said, "He decided he should recuse himself, and the court agreed."

The Legislature remains under a court order to increase school funding, with emphasis on students at risk of failing. The issue has dominated legislative deliberations since the court ruled in January 2005 that the school finance law violates the Kansas Constitution.

Lawyers on both sides of the case said Nuss' removal likely will have little impact on the case. The court's decision was unanimous, and four votes are needed to prevail whether six or seven justices are deciding a case.

"I doubt this changes the dynamics but if it does, we'll probably never know it," said Alan Rupe of Wichita, lead lawyer for the plaintiff school districts that sued the state in 1999.

The story built on Saturday:
TOPEKA - An investigator from Attorney General Phill Kline's office has interviewed state senators about potential ethics violations by Supreme Court Justice Lawton Nuss, four senators said Friday.

Nuss removed himself Thursday from the ongoing litigation over school finance after informing other justices that he spoke briefly about the case with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina, on March 1.

Late Friday, Kline declined to comment on Nuss' recusal, but added, "I would certainly say investigation is not a word that would apply."

The senators said they gave sworn depositions.

House Speaker Doug Mays, R-Topeka, said he intends to assign a special committee with subpoena powers to probe the issue when lawmakers return Wednesday for the Legislature's wrap-up session. * * *

The seven-year-old lawsuit over school funding has dominated the Legislature's attention since the Supreme Court ruled the state's school funding law unconstitutional in January 2005, upholding a trial court decision.

The court retained jurisdiction in the case after ruling that additional funding lawmakers approved during a special session last summer was insufficient.

Sen. Jim Barnett, R-Emporia, said he requested the investigation in a letter to Kline late last month. He said comments Morris made to other senators led him to believe that "back-door communications" were taking place between the court and some lawmakers. * * *

Sen. Pat Apple, R-Louisburg, also was interviewed. He said his understanding from Morris -- based on a conversation with "someone at court" -- was that the justices would look favorably at a funding plan that provides in excess of $400 million in new money and has bipartisan legislative support. A multi-year approach likely would win court approval, he was told.

Apple said the investigator never mentioned Nuss. He assumed the inquiry was about a court employee.

The Lawrence Kansas Journal-World reported Saturday:
Topeka — A two-pronged inquiry appeared in progress Friday into what was said between Kansas Supreme Court Justice Lawton Nuss and two influential lawmakers about the pending school funding lawsuit.

House Speaker Doug Mays said he would likely convene a special legislative investigation, in which powerful lawmakers and justices could be called to testify under oath.

“Public confidence in the judiciary is at stake,” said Mays, R-Topeka.

And several senators confirmed that they have been questioned in the Nuss matter by investigators for Atty. Gen. Phill Kline’s office.

On Thursday, Nuss announced he would remove himself from future proceedings in the school finance lawsuit after it was disclosed that he spoke about the pending case while having lunch on March 1 with Senate President Stephen Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina. * * *

It is a basic tenet of ethics that judges are not supposed to have communications with interested parties in cases outside the courtroom. Legal scholars and many legislators, both attorneys and non-attorneys, have expressed shock that Nuss would discuss with two legislators the most high-profile case before the court.

The Kansas Supreme Court has declared the school funding system unconstitutional because it shortchanges all students, especially poor ones. After a special session last summer, the Legislature added $290 million to the $3 billion system.

The court has said more funding is needed in line with a cost-study analysis. Lawmakers return Wednesday for a wrap-up session to debate school finance and other issues.

News of the Nuss-Morris-Brungardt lunch added to the suspicions of many lawmakers who have complained about alleged “back-channel” discussion between the court and legislators sympathetic to the lawsuit. * * *

The incident has thrown light upon the fact that it is not uncommon for key lawmakers to meet with justices, but it is usually over budgetary issues, officials said.

Mays said he has had lunch at least twice with Chief Justice McFarland, whom he said tells funny stories and then lobbies for funding for the court system.

“Never in my wildest dreams did I ever think a justice and legislator would meet and talk about a pending case,” he said.

These reports are somewhat reminiscent of the reports from Pennsylvania in February, complied in this ILB entry headed "Astonishing stories of collusion between Pennsylvania's legislature and its Supreme Court."

Background. This August 10th, 2005 ILB entry quotes from a Kansas City InfoZine story (still available here) that begins: "In the wake of last year's costliest and possibly nastiest elections ever for state Supreme Court justices, a few states are drawing up changes to curb threats to the impartiality and fairness of their legal systems."

See also this Dec. 6, 2005 ILB entry headed "Voters, activists put heat on judges: Interest groups, playing to voter resentment, mount TV attack ads; more on Pennsylvania judges."

Posted by Marcia Oddi on April 23, 2006 11:10 AM
Posted to Courts in general