Have Kansas Supreme Court Justices become "activists"?

     Judicial elections are difficult enough for voters to make an informed decision, but this year’s retention election for the Kansas Supreme Court Justices have been complicated with misrepresentations.

     The most egregious false statement is that Governor Sam Brownback will make a “power grab” and be free “to stack the court” with his political cronies if the current justices are not retained. The pro-retention forces are trying to use Governor Brownback as the boogeyman.

     In filling a vacancy on the Kansas Supreme Court, the Supreme Court Nominating Commission actually has more power under the Kansas Constitution than the governor. The Commission, comprising of 5 lawyers and 4 lay members select three candidates to nominate for the vacant position. They can select anyone from several thousand eligible attorneys in the state. The governor must then select only one of those three that is nominated. For example, if the Commission nominates three liberal Democrats, Governor Brownback must appoint one of them to fill the position.

     There are legitimate issues that both sides have raised that should be evaluated by the voters. The pro-retention forces have pointed out the importance of judicial independence. A court should not be afraid to make a politically unpopular decision if it is the correct ruling of the law. To enjoy the protection of judicial independence, judges must exercise judicial restraint. The role of a judge, especially appellate judges, give them the opportunity to shape social or political policies to reflect their own views, but should refrain from doing so. If they choose not to resist the temptation, they risk losing the presumption of judicial independence granted to them by the citizens.

     The anti-retention supporters maintain that some of the Kansas Supreme Court Justices fail to exercise judicial restraint or in other words have become “activist judges”. Two of the areas of concern is the perception that they are blocking imposition of the death penalty and overstepping their boundaries and invading the legislative function by annually reviewing the amount of educational appropriations.

     The anti-retention forces point out that the Kansas Supreme Court has overturned the first seven death penalty sentences. The first time that they upheld a death sentence was after two of the members of the court almost lost their retention elections in 2014.

     In five of the cases where the Kansas Supreme Court overturned the death penalty on constitutional grounds, the United States Supreme Court agreed to review the decisions. In each one of those cases, the U.S. Supreme Court found that they were incorrectly decided and reversed the Kansas Supreme Court.

     The pro-retention forces have said that those reversals are but a small percentage overall of the many cases decided by the Kansas court. In fact, most cases decided by the Kansas Supreme Court are not reviewable by the U.S. Supreme Court. In the last 10 years the United States Supreme Court has agreed to review only 6 cases decided by the Kansas court. Five of those were the death penalty cases and there was an additional case involving a murder conviction. All six were overturned in finding that the Kansas Supreme Court misinterpreted the United States Constitution.

     The pro-retention forces say that it would be unprecedented to remove the justices in a retention election. In Kansas that is true, but in 1986 the State of California experienced the removal of Chief Justice Rose Bird and two of her fellow justices in their retention election over their perceived blocking of the imposition of the state’s death penalty law.

     To be fair to Justice Stegall, he has come onto the court after all of those decisions were rendered. The voters will have to decide whether they believe that the other four justices have become “activist judges” and not entitled to the citizen-granted presumption of judicial independence. As a final matter, the voters will also have to decide if going 0-6 with their reviews by the high court shows a lack of competency in deciding constitutional questions. In the sports world when a football team goes 0-6, they usually are looking for a new coach.