As many have surely seen in countless articles, advertisements, and mailings, the citizens of the state of Kansas are voting during the primaries on August 4 regarding a proposed Constitutional Amendment that would reject our current Supreme Court Nominating Commission in favor of judicial elections. We at Colantuono Guinn Keppler endorse voting no on this proposed amendment. The Kansas Rules of Professional Conduct, which guide attorneys in acting ethically and making ethical choices, has a preamble that reads as follows: “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Thus, we at Colantuono Guinn Keppler believe we have an ethical obligation to speak on this proposed amendment and describe why our firm endorses voting no. We generally avoid political stances and proudly represent clients regardless of ideologies or any differences our clients may have with our personal political positions. However, we firmly do not believe that this should be a partisan issue or a controversial position.

Presidents, governors, Senators, house reps, county commissioners, school boards: they represent the people, they should be (and are) elected and re-elected. It so happens that a lot of money goes into these campaigns for one reason or another, but that has been generally approved by our country’s campaign finance laws. Meanwhile, judges do not represent the people. They represent the law. They should not be elected/re-elected, and they should not be influenced by politics. There should not be outside money pumped into judicial selection. Once money and campaigning are involved in judicial selection, judges have interests that they must serve beyond the law. We want judges to think about nothing more than how to properly apply the law to the facts before them; we do not want them to think about how a given ruling affects their chances for re-election, or how that ruling might affect their highest donors.

You are going to hear a lot from the Vote Yes crowd of “elections are good,” “the more elections the better,” and “elections are pro-democracy.” These are nice soundbites, but they are only surface level. Elections are unquestionably great and a key part of this democracy that just celebrated its 250^th birthday. In fact, Kansas Supreme Court judges are subject to elections in the form of retention elections after one year on the bench. If you believe that a new judge is doing a poor job, you can vote to non-retain them, at which point if the majority of voters agree with you, their spot on the bench will re-open. The public can scrutinize a judge based on his or her performance almost immediately. Then every six years, they come back on the ballot for retention, and you can vote accordingly at that time. The voters already do have a say in the makeup of our court as it stands right now.

We’ll go into a little bit more detail about how the selection process currently works. Essentially, the proposed amendment is seeking to change how Kansas Supreme Court justices are selected. Right now, judges are selected in a nonpartisan, merit-based fashion. They have been since 1958, when Kansas voters overwhelmingly voted to amend the Kansas Constitution to implement a merit-based system. The merit-based system involves a 9-person Supreme Court Nominating Commission, which includes 5 lawyers (1 lawyer per 4 congressional districts who are voted on by lawyers in their district, and 1 lawyer chairperson who is voted on by lawyers statewide) and 4 non-lawyers (1 non-lawyer per 4 congressional districts who are appointed by the governor). The Supreme Court Nominating Commission interviews all candidates, in a public setting, and then submits a list of three candidates to the governor, who then chooses from the three names. The Nominating Commission focuses on legal experience, education, temperament, and impartiality, among other things. We have a pretty robust and ideologically diverse Kansas Supreme Court, although the true ideologies of these justices can only be guessed, thanks in part to the fact that they do not have to run for election and align with an ideology in order to get elected.

Judges should not have to campaign. Their focus should be on their work, not spending a year campaigning. In fact, if they do have to campaign, your tax dollars will be paying these judges to take time away from the bench and from jurisprudence as they seek re-election. They should not have to fundraise. They should not have to make campaign promises. Politicians have to do that; judges are not politicians. Brown v. Board of Education was unpopular when it came out, but it was the legally correct decision. If judges felt pressure to sway to popularity and public opinion, it would compromise their ability to apply the law as they are uniquely qualified to do. We don’t want a judge to forgo authoring the next Brown v. Board opinion because of any outside noise.

We want to give two examples about why money should not be used to influence judicial selection in Kansas. First example: State Farm was sued in the state of Illinois and got hit with a $1.05 billion verdict in a consumer protection case. State Farm appealed. Behind the scenes, State Farm paid millions of dollars to get Lloyd Karmeier elected to the Illinois Supreme Court. He got elected and seated while the appeal was pending. Justice Karmeier refused to recuse himself and cast the deciding vote that overturned the verdict. Second example: in Wisconsin last year, more than $100 million was spent on the election to fill a seat on the Wisconsin Supreme Court. If judges are elected in Kansas, that type of money will be pumped in, both by people who have been dissatisfied with some of the Kansas Supreme Court’s rulings, and by those who support those rulings who are attempting to counter the money pumping in by the perceived opposition. Most of that money will be pumped in from people who live outside of Kansas. These money dumps and improper influence can be easily avoided by simply voting no.

Kansas has a good system. Is it perfect? Probably not. But it delicately balances the need for merit-based selection and the recognition that voters still should have some kind of say on the make-up of the court in the form of retention voting. Polls of Kansas voters would tend to agree with this: only 21% of Kansans are dissatisfied with the Kansas Supreme Court, which is a stunningly low disapproval rating in this day and age (the United States Supreme Court, for example, has a 52% disapproval rating). The Kansas Supreme Court is not a problem that needed fixing. And the Vote Yes crowd has not actually provided an alternative. The specifics of how judicial elections would be implemented has been tabled until after the vote.

We here at Colantuono Guinn Keppler encourage you to Vote No on the proposed amendment to the Kansas Constitution. If you have any questions about this post, feel free to e-mail Ben Ashworth at [email protected] and he will attempt to answer your questions as best as possible. Also feel free to reach out about any employment, business, or civil rights needs you may have at 913-345-2555.