The Kansas Constitution requires merit-based appointment to the Kansas Supreme Court, but the Governor and some members of the Kansas Legislature favor a change to the Constitution to allow governor-based selection for the Supreme Court, too.
For more on the issue, including myth-busting facts about merit and judicial selection systems, visit the website Kansans for Fair Courts.
[Resolution adopted at the 2013 Annual Convention.]
All of you know Thurgood Marshall was the first African-American justice on the U. S. Supreme Court. It would be easy to say he brought a black person's perspective with him. But he brought more than that. One of the things he also brought was the perspective of poor people -- of all colors. According to his biographers:
"In one of his most memorable dissents, [United States v. Kras (1973)], he responded to the majority's holding that a fifty-dollar filing fee for filing a bankruptcy petition was not an unconstitutional denial of access to the courts for a person who could not pay the fee. The majority noted that the fee could be paid in installments over six months, with the possibility of a three-month extension, lowering the weekly amount to $1.28, 'a sum less . . . than the price of a movie and little more than the cost of a pack or two of cigarettes.'"
"It may be easy for some people to think that weekly savings of less than two dollars are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have -- like attempting to provide some comforts for a gravely ill child, as [Mr.] Kras must do.
"It is perfectly proper for judges to disagree about what the constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live." [from Thurgood Marshall: Justice For All, by Roger Goldman with David Gallen, 1992, pp. 214-215.]
Hugo Black was a former member of the Ku Klux Klan who also served as a justice on the U. S. Supreme Court. It would be easy to say he brought that unfortunate perspective with him. I am not aware of evidence that he did. Indeed, Thurgood Marshall asked Black to swear him in. Black, however, did bring a knowledge of the realities of criminal law.
In Betts v. Brady (1942), the Supreme Court held that an indigent criminal defendant was not entitled under the U. S. Constitution to a court-appointed attorney in a state court. Justice Black, a former defense lawyer, vigorously dissented. During case conference he asked his fellow Justices: "How many times in your practice do you think that any person could plan their defense, summon witnesses and otherwise conduct a trial in the face of organized opposition?" According to Black's biographer, "This was a loaded question, since few justices had actual experience in the practice of criminal law." [from Hugo Black, by Roger Newman, 1997, p. 294.]
Twenty-one years later, in the landmark decision Gideon v. Wainwright (1963), Justice Black wrote the opinion for the now unanimous court to overrule Betts. The opinion provided, "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." This was now "an obvious truth" and having counsel appointed was now a "fundamental right."
These passages I read about Justice Black are from my application to the Kansas Supreme Court Nominating Commission -- when I applied in 2002 to become a justice. I went on to say: "Perhaps had more trial lawyers been on the Court with Black in 1942, then 21 years worth of indigent defendants would not have been forced to represent themselves in state criminal courtrooms through the country. And perhaps some innocent defendants would have been acquitted instead of imprisoned."
More recently, and closer to home, let me talk about an experience during the past year on our court. My colleague, Justice Rosen, is Jewish. During a conference, he mentioned his elementary school experience in Kansas in which the teacher led the students daily in reciting the Lord's Prayer and led the students in December in singing Christmas carols. As a schoolboy, Justice Rosen was conflicted because his religious teachings did not elevate Jesus to the status of worship. As a result, he would quietly replace "Jesus" with "Mickey Mantle" or "Roberto Clemente" in the recitations. His sharing these experiences with his colleagues made us all aware of a different perspective.
I provide these examples because I believe in diversity on the bench -- but not exclusively gender, race, ethnicity, or age. For example:
My colleague, Justice Lee Johnson: Born and raised in a small town of 1,200 on the Oklahoma border, and practiced law there in a 1-man law firm.
Justice Carol Beier: Raised a Roman Catholic in the urban environment of Kansas City, Kansas. She practiced law in one of the state's largest firms.
Justice Dan Biles: A former reporter. He was raised in El Dorado and presently lives in Johnson County, providing the suburban perspective.
Justice Marla Luckert: Raised in Goodland, a town of 4,500 near the Colorado border. She was a long-time trial judge in Topeka.
Justice Nancy Moritz: Received a parochial school education in central Kansas. She worked in Kansas City and Topeka.
Me? I bring "the cowboy" perspective. Although I am from Salina, my mother's family farmed and ranched near Dodge City. I am a trial lawyer who came straight from there to the Supreme Court. I am one of two military veterans on the court, and the only one who served overseas and the only Marine. I am perhaps the only justice today who lived for several years where whites were the minority.
I am reminded of a conversation I had in the U.S. Marine Corps in 1975. A fellow lieutenant was a Harvard graduate. I was impressed, but he said, "Don't be." He explained that at the freshman class assembly on his first day at Harvard, the president of Harvard said, "Don't get big-headed about how smart you are simply because you are at Harvard. We could have filled the entire freshman class with kids having perfect ACT and SAT scores -- from New York City alone! We chose instead to have some diversity to enrich everyone. "
The same holds true for our court: We have a good mix of backgrounds. But even having the desired diversity on the Kansas bench is of no help if those courts are closed. Last spring, I signed the order closing all Kansas state courts and sent employees home without pay for four days for lack of funds. It was the first time in 149 years of Kansas history.
To avoid a repeat of court closures in the fiscal year beginning July 1, 2010, we agreed to maintain 75-80 job vacancies -- 5 percent of our authorized workforce. We've been shorthanded ever since, although we have kept our courts open. But things are not looking good for fiscal year 2012 which begins July 1 of this year. Almost two weeks ago, the House Appropriations Committee voted to cut our annual budget $6.5 million. Because the counties provide us our office space, equipment and supplies, about 97 percent of our judicial branch budget is devoted to paying personnel. Therefore, much of our significant cost-cutting unfortunately comes at the expense of our personnel, and as result, at the expense of our ability to serve Kansas residents and to keep their confidence.
As one national news service said so well last month: "The emaciation of the court system undermines not only access to justice, but also the public's belief in the justice system." As I told both the House and Senate last month in my State of the Judiciary speech:
The fundamental rights of Kansans are jeopardized when courts close. When courts are closed, justice is delayed until they open again. When courts close, Kansans' belief in our justice system is undermined.
Those jeopardized fundamental rights include the right to a speedy public criminal trial by an impartial jury, as guaranteed by Section 10 of the Kansas Bill of Rights since 1861. A criminal defendant whose right to a speedy trial has been violated is not simply a matter of academic interest to law school professors -- to which we can say "so what?" Under our system of laws, that defendant will have the criminal charges dismissed and will be free to go. Kansas Statute 22-3402 provides that "such person shall be entitled to be discharged from further liability to be tried for the crime charged."
Kansans also have the right to have civil justice administered without delay. Section 18 of the Kansas Bill of Rights, also in effect since 1861, states: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." The same general message from the people is found in various Kansas civil law statutes passed by the Legislature. For example, Kansas Statute 60-102 charges Kansas courts "to secure the just, speedy and inexpensive determination of every action or proceeding."
If we don't maintain this funding, courts not only will close, but court employees will also be sent home without pay. Again. And some of our well-trained and experienced but worn out employees will quit because some form of hiring freeze for the last two years has left them shorthanded. Then, because we must maintain 80 vacancies, we may be unable to replace them. It is a tough cycle: even more employees then quit because they become more worn out and shorthanded.
To speak plainly, the loss of $6.5 million means 31 days -- six weeks -- of court closures. Several legislative solutions have been proposed:
(1) Increase the filing fees for lawsuits. It presently costs $173.50 to file a standard civil suit. Remember Thurgood Marshall's complaint about a $50 filing fee?
(2) Cut the pay of state employees making over $40,000 and cut the pay of all judges by 7.5 percent. Our Kansas trial judges already rank 42nd in the country in salaries.
What messages are being sent? The message in court closures is that we absolutely deny access to justice to everyone, whether you are a billionaire or a homeless person sleeping under a railroad bridge. Isn't it ironic that one of the complaints listed in the Declaration of Independence by our founders in 1776 was King George's obstruction of the administration of justice? The message in increasing filing fees is that we deny access to justice to many more Kansans than before. The message in cutting judges' pay is that the judges' public service is underappreciated. How many here would like to handle child custody disputes in divorce cases and decide which children will live with which parent? Or to handle Child in Need of Care cases involving termination of parental rights because of abuse or neglect of children? Or to preside over trials concerning sex crimes against children?
Now that I have depressed you, let me leave you with some good news: our 250 judges and 1600 nonjudge employees are dedicated. And we will do the best we can for as long as we can with what we have.