Voice For Liberty

Category: Kansas state government

  • Kansas unemployment, the credit or blame

    The unemployment rate in Kansas dropped from 6.2 percent to 5.9 percent in September. Before figuring who to credit for this, we ought to take a look at the underlying trends.

    Kansas Governor Sam Brownback was quick to take credit, issuing the tweet “KS unemployment rate dropped to 5.9% in Sept. lowest rate since Dec. ’08.”

    Jason Perkey, who is Executive Director of the Kansas Democratic Party, wanted to give the credit to President Barack Obama, as can be seen in his tweet.

    Looking at the numbers behind the unemployment number, however, reveals something that I don’t think either party wants credit for: a shrinking labor force.

    Todd Davidson of Kansas Policy Institute took a close look at the numbers that go into forming the unemployment rate, and here’s what he found: “The drop did not come from higher employment. 7,819 fewer Kansans were employed in September 2012 than in September 2011. The unemployment rate is lower because over 20,000 Kansans dropped out of the labor force over the last year.” More details are at Taking a Closer Look at the September Unemployment Rate.

    Graphically, here’s what the situation looks like. The number of people in the Kansas labor force has been declining. When the number of employed takes a slight uptick, the unemployment rate can decline by a fairly large amount. But it’s not part of an encouraging trend.

  • Kansas population growth lags nation

    At the Wichita Pachyderm Club last week, Kansas Governor Sam Brownback presented a chart that showed how the ranking of Kansas among the states in population has fallen. Other states are growing faster than Kansas.

    Here are two charts showing the growth in population in Kansas compared to the United States. Both are indexed, meaning that both populations start at one, and then grow proportionally. One chart starts in 1900; the other in 1991.

    Kansas and U.S. population growth since 1900.
    Kansas and U.S. population growth since 1991.

  • Charges of slashing Kansas school spending

    Kansas Democrats are making claims on campaign mailers that don’t withstand scrutiny. An example is this: “Under the Brownback plan, funding for education has been slashed and local governments are being forced to make up the shortfall by raising property taxes on working and middle class Kansans. (The Wichita Eagle. 7/18/12)”

    Let’s look at the record of spending in Kansas schools. Here’s a chart:

    Kansas school spending per student through 2012.

    Does this look like school spending has been “slashed?”

    It’s true that a component of school spending known as “base state aid per pupil” was cut, although it’s rising now. We need to understand, also, that base state aid per pupil is just part of school spending, and most schools spend much more than that.

    Specifically, base state aid per pupil for the last school year was $3,780. But the state spent an average of $6,983 per pupil that year, which is an additional $3,203 or 84.7 percent more than base state aid. Overall spending from all sources was $12,656 per pupil. Both of the latter numbers are higher than the previous year.

    But school spending advocates — and Democratic campaign mailers and many newspaper editorial writers — focus only on base state aid. They present base state aid per pupil as the primary benchmark or indicator of school spending, despite the fact that it is only a small part of the Kansas school spending formula and disguises the overall level of spending.

    Focusing only on base state aid per pupil is wrong. Doing so allows the school spending lobby to make an argument that is superficially true, but deceptive at the same time.

    But it’s easy to understand why there’s the focus on school spending. It’s easy to persuade parents — and anyone, for that matter — that if we want the best for Kansas schoolchildren, we need to spend more.

    The school spending advocates have done a good job promoting their issue, too. On a survey, not only did Kansans underestimate school spending levels, they did so for the state portion of school funding, and again for the total of all funding sources — state, federal, and local. Kansans also thought spending had declined, when it had increased. See Kansans uninformed on school spending. Similar findings have been reported across the country.

    Spending more on schools is seen as an easy way to solve a problem. But the problems facing Kansas schools will require different approaches, and the Kansas school establishment won’t consider them. For a list of reforms that are needed, but resisted, see Kansas school reform issues.

    Base state aid compared to Kansas state spending and total spending. State and total spending has risen even though base state aid is mostly flat.

  • Kansas lawmakers, including judges, should be selected democratically

    While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

    A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. The House of Representatives has passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    One of the dividing lines between “conservative” and “moderate” Kansas Senate Republicans is their attitude towards judicial selection, as revealed in a vote taken earlier this year. Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in composition of the Kansas Senate next year, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    Just last week a federal appeals court ruled that the method Kansas uses to select justices to the Kansas Supreme Court is constitutional.

    The Court’s discussion starts on a promising note: “That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial.”

    But in the end, the Court sided with the present undemocratic Kansas system: “Kansas designed the Commission to favor lawyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the Commission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in part to their training which enables informed judgments about a candidate’s experience — his credentials, his area of expertise, his body of work — and the extent to which it strengthens or weakens his candidacy. ”

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • Renewable Portfolio Standard costly for Kansas

    A policy promoted by Kansas Governor Sam Brownback will result in higher electricity costs, fewer jobs, and less investment in Kansas.

    This is the conclusion of a new study by Kansas Policy Institute and Beacon Hill Institute. The policy is Renewable Portfolio Standard, or RPS, which mandates that a minimum amount of a state’s electricity be produced by renewable sources. In Kansas, the primary renewable source of electricity is wind.

    In a press release accompanying the report, KPI said “Renewable energy is more expensive than conventional energy, so government mandates are necessary to ensure that more renewable energy is purchased. However, the unseen consequences of well-intended efforts to increase energy independence are rarely considered. The authors estimate that by 2020, the average household’s electricity bill will increase by $660, approximately 12,000 fewer jobs will have been created, and business investment in the state will be $191 million less than without the mandate.” The press release and summary is at The Economic Impact of the Kansas Renewable Portfolio Standard, and the full report is here.

    Brownback has supported, first as U.S. Senator and now Kansas Governor, renewable portfolio standards, mandating the production of wind power. U.S. Senator Jerry Moran favors the production tax credit that makes wind feasible, but forces taxpayers to subsidize an expensive form of energy. Together they penned an op-ed that tortures logic to defend the tax credits. Each has spoken out on his own on the national stage. See Brownback on wind, again and Wind energy split in Kansas.

    Driving through western Kansas and marveling at all the wind farms might lead one to conclude that the efforts of Brownback and Moran are a success. Viewing the spinning turbines — when they are in fact spinning — is just the start of understanding the impact of wind power, mandates for its use, and taxpayer subsidy for its production. The KPI report is an important document that lets us understand more of the full effect of renewable portfolio standards.

  • National coverage of Kansas primary election

    Coverage of the August 2012 Kansas primary elections in national publications.

    Wall Street Journal: Kansas Voter Uprising: GOP incumbents who resisted reform get early retirement, Kansas’s Conservative Rebellion, Conservative Republicans Make Gains in Kansas

    National Review: Kansas’s Tea Party Triumphs

    Associated Press: Conservatives win big in Kansas Senate primaries

    National Public Radio: Conservatives Win In Kansas GOP Senate Primary

    Huffington Post: Steve Morris, Kansas Senate President, Blames Moderates’ Defeat On Conservative Attack Ads

    Slate: The Great Kansas Republican Purge of 2012, Defeated Kansas Senator: “Koch Industries is Just a Terrible, Terrible Citizen.” This article is notable for exposing the delusional thinking and reasoning of defeated Kansas Senator Tim Owens. Owens ranked at the bottom of all senators — Democrats included — in the Kansas Economic Freedom Index.

  • Kansas part of national trend in primary elections

    Analysis by Ballotpedia shows that the primary election victories by conservatives in Kansas is part of a larger national trend of incumbents losing primary election challenges. Kansas, however, is leading the trend, with the largest number of incumbents defeated among all the states.

    In Kansas, about one-third of the incumbents who faced a primary challenger lost. That’s more than three times the number that lost in 2010, although the Kansas Senate was not up for election then as it is this year.

    Ballotpedia’s article is Primary change: A rough night for incumbents, as 18 fall in Kansas legislative primaries. It holds a link to the larger study Primary Challenge: Anti-Incumbency Voting Patterns in State Legislative Elections.

  • In Kansas, rejecting left-wing Republicans

    The headline in the Kansas City Star reads “Voters reject middle ground in Kansas Senate races.” A more accurate conclusion is that voters have realized that the governance of Kansas by a coalition of Democrats and left-wing Republicans has not been in the state’s best interest. Stagnate job growth as compared to other states, increasing spending on schools with no accountability and not even an honest discussion of achievement, falling behind other states in school reform and school choice, a highly undemocratic method of selecting our state’s top judges, resistance to privatization and other measures to streamline government, business tax costs topped by only a few other states: these are some of the results of this coalition.

    But yesterday, Kansas voters said goodbye to many of the left-wing Republicans — the so-called “moderates” or “traditional Republicans” — and nominated conservatives in their place. Some nominees face Democratic challengers in November.

    The results are a surprise not only for the number of victories by conservatives, but the margin of victory. In Johnson County, incumbent Senator Tim Owens was defeated 60 to 40. Owens ranked at the bottom of all senators — Democrats included — in the Kansas Economic Freedom Index.

    In a neighboring district, incumbent Senator Mary Pilcher-Cook won her primary election by a 64 to 36 margin. Pilcher-Cook ranked at the top of the Kansas Economic Freedom index. Conservative Steve Abrams, who ranked well in the KEFI, also defeated a challenger.

    Another notable result is the defeat of Senate President Steve Morris.

    Other defeats of moderates, some being incumbents, include Jeff Melcher over Pat Colloton to replace John Vratil, Jacob LaTurner over Bob Marshall, Forrest Knox over John Grange, Jeff King over Dwayne Umbarger, Greg Smith over Joe Beveridge, Bob Reader over Roger Reitz, Tom Arpke over Pete Brungardt, Michael O’Donnell over Jean Schodorf, Mitch Holmes over Ruth Teichmann, and Dan Kerschen over Dick Kelsey. Kelsey will dispute being lumped in the moderate camp, but on economic freedom issues, he ranked just barely above neutral.

    There were some victories for the moderates. Kay Wolf won the primary to replace Terrie Huntington, which is a retention for moderates. In Topeka, moderate Vicki Schmidt retains a place in the Senate, as does Carolyn McGinn in south-central Kansas. Pat Apple defeated a challenge from Charlotte O’Hara. Apple ranks barely above neutral in the KEFI, while O’Hara, in the Kansas House, was near the top. Jeff Longbine survived a challenge from conservative James Fawcett.

    Commenting on the results, Americans for Prosperity–Kansas state director Derrick Sontag said “The primary results make one thing clear: Kansans support those who promote fiscally conservative, limited government, free market policies. Fiscal conservatives are now being elected because of the policies that have failed our state for years. This new field of candidates vying for office reflects a continued desire to put a stop to the rampant state spending and high tax burdens of the past. It is evident from the results at the ballot box that Kansans want a reasonable, responsible government and we are optimistic that our state is now starting to head down the path toward prosperity and a strong Kansas economy.”

    In local races in south-central Kansas, voters rejected the challenge by left-wing Republican Wichita City Council Member Jeff Longwell to incumbent Karl Peterjohn. Longwell had the endorsement of Wichita Mayor Carl Brewer and all Wichita City Council members except Michael O’Donnell (district 4, south and southwest Wichita). Three Sedgwick County Commission members endorsed Longwell, too. As there is no Democratic contestant, this race is over.

    In suburban Andover, voters rejected a proposed property tax increase for schools. Update: After the final canvass of votes, the tax increase passed by two votes.

  • Kelsey KPERS reporting not complete in Wichita Eagle

    An incident involving Kansas Senator Dick Kelsey and a fired state employee’s Kansas Public Employee Retirement System (KPERS) pension is of interest not only for the incident itself, but the resulting news reporting.

    The Topeka Capital-Journal article Fired JJA official’s KPERS benefits questioned contains some details that the Wichita Eagle decided not to include in its coverage contained in Fired Kansas juvenile official gets state pension.

    For example, the Capital-Journal reported: “State Sen. Dick Kelsey, a Goddard Republican and friend of Casarona, had urged Brownback to allow Casarona to be rehired by the state for one day of active service before being placed on sick leave for a period of months to allow completion of a natural 10-year cycle of service to Kansas.”

    The Wichita Eagle characterized this proposal as a request to “rehire Casarona long enough to allow him to be eligible for a pension.” I would submit that most readers would be interested in the details presented in the Capital-Journal reporting, especially a proposal to rehire someone for one day so he can earn a pension. This is the type of favoritism and cronyism that citizens hate.

    A spokesperson for Governor Brownback explained why this highly unusual request by Sen. Kelsey was wrong: “Mr. Casarona was terminated for cause. The governor’s office declined Senator Kelsey’s request because rehiring Mr. Casarona for a short period of time would merely have been a pretext for skirting state retirement law. Such action would amount to an improper use of limited state resources.”

    This explanation didn’t appear in the Eagle story.

    Both stories included the culmination of this matter and the curious twist of reasoning that was found to apply: “Casarona was retroactively deemed to have orally requested permission to buy service time one month before he was fired. That position countered [Brownback counsel Caleb] Stegall’s contention Casarona was ineligible because he had been fired before seeking the exemption.

    Retroactively deemed. I’d never heard that phrase before, but a Google search finds that this legal concept or maneuver has been used before. But retroactively deeming that someone said something opens up a giant can of worms.

    Can we also retroactively deem that someone didn’t say something? This would eliminate the need for apologies.

    Retroactively deeming that someone made an oral request is a handy way to skirt the meaning and intent of contracts and the rule of law. The individuals involved ought to be ashamed, and Senator Kelsey ought to be reminded that his loyalty should be to Kansas taxpayers, not to one specific person.