Bullying in the Heartland—Political Assaults on the Kansas Supreme Court

In Kansas, politics and the judicial branch collided during the state’s 2014 retention elections—one of many recent politically-motivated assaults on the Kansas judiciary.

“Carr Brothers” sponsored by Brownback for Governor
Brownback leaked campaign memo

A controversial death penalty ruling became an issue in the 2014 retention election for two Kansas Supreme Court justices, Eric Rosen and Lee Johnson. Both had participated in a decision earlier that year that vacated the death sentences of two convicted murderers, Jonathan and Reginald Carr, and sent their cases back to the lower court for further hearings and a new sentencing. The justices concluded that the district court judge who presided over the brothers’ trial had erred by refusing to hold separate sentencing proceedings as required by the Eighth Amendment. 1

A group calling itself “Kansans for Justice” launched a website opposing the justices’ retention, and members of the organization gave interviews criticizing the court’s decision. Then, Governor Sam Brownback, locked in a surprisingly close reelection campaign with his opponent—Kansas House of Representatives minority leader Paul Davis—raised the decision as an issue in his own reelection campaign. In October 2014, Brownback ran television ads criticizing both the court and Davis, stating that Davis had stood with “liberal judges who let the Carr brothers off the hook.” 2 The allegation drew harsh criticism from defenders of the justices, and former Sedgwick County District Attorney Nola Foulston, who had prosecuted the case against the Carr brothers, called Brownback’s ad “reprehensible.” 3 A leaked campaign memo later revealed that Brownback’s campaign had concluded that turning the Carr brothers decision into a campaign issue “creat[ed] an opportunity for moving a significant number of voters” in the gubernatorial race.

Brownback’s assaults on the courts did not begin or end with his most recent campaign for reelection. With his encouragement, state legislators have introduced multiple bills to weaken the independence of the judiciary over the past two years, including measures to move from a judicial merit selection system, where nominees are vetted by a nominating commission, to either judicial elections or a gubernatorial appointment process without a nominating commission. In 2014, legislators also passed—and Brownback signed—a law stripping the high court of budgetary and administrative powers over lower courts. Following a lawsuit challenging the constitutionality of this measure (which was still pending at the time of publication), 4 in June 2015, Brownback signed a new budget for the judiciary that includes a controversial “nonseverability” provision, which would defund Kansas’ entire judicial system if the 2014 law is struck down.

Notes:

  1. State v. Carr, 329 P.3d 1195 (Kan. 2014) (vacating death sentence of Jonathan Carr); State v. Carr, 331 P.3d 544 (Kan. 2014) (vacating death sentence of Reginald Carr); see also Fiona Ortiz & Leslie Adler, Kansas Top Court Overturns Death Sentences in ‘Wichita Massacre,’ Reuters (July 25, 2014, 1:23 PM), http://www.reuters.com/article/2014/07/25/us-usa-kansas-deathsentences-idUSKBN0FU1WJ20140725.
  2. Yael Abouhalkah, Sam Brownback’s New Race-Baiting TV Ad Insults Kansans, The Kansas City Star (Oct. 22, 2014), http://www.kansascity.com/opinion/opn-columns-blogs/yael-t-abouhalkah/article3221841.html.
  3. Dion Lefler, Former DA Foulston: Brownback’s Carr Brothers Ad ‘Beyond Disgraceful’,’The Wichita Eagle (Oct. 22, 2014), http://www.kansas.com/news/politics-government/election/article3251657.html.
  4. At the time of publication, the Brennan Center for Justice was serving as co-counsel in this lawsuit.