Kansas has the appearance, without the reality, of judicial accountability


Friday’s Wichita Eagle contained an op-ed by a University of Kansas law professor that discussed the method of selecting supreme court justices in Kansas. (Stephen J. Ware: Open up Process of Picking Judges, January 23, 2009)

A Kansas blogger (The Kansas Jackass) noticed this piece and attempted to take Prof. Ware to task. But it seems like the Jackass is unable to grasp the meaning of one of Prof. Ware’s central points: that in a judicial retention election, there is no opposition candidate. Equating judicial retention elections with contested races for, say, a seat in the legislature ignores political reality.

That’s one of the things that makes the Jackass argument seem reasonable. There are, in fact, retention elections — the Jackass is correct on this. But political reality is different, and Prof. Ware provides plenty of evidence of this. It’s summarized in his assessment that the current system gives the “appearance, without the reality, of judicial accountability to the citizenry.”

The Jackass also presses her case by alleging a subtext in Prof. Ware’s article that doesn’t exist.

I don’t know why the Jackass is so adamant in her support of a system that is at the extreme end of the spectrum of 50 states in giving a voice to the people. Except: the Jackass is an anonymous blogger. Perhaps she has a personal connection to one of the Kansas Supreme Court Justices, or maybe to the current system that selects these justices. There’s no other reasonable explanation as to why someone would be so enamored with this system. Except for being, well, you know the name of her blog.

To learn more about the selection of justices in Kansas and why we need to change our method of selection, see Kansas Must Change Its Judicial Selection Method.

Here’s Prof. Ware’s expansion of his op-ed:

I thank the Jackass for calling attention to my op-ed in the Wichita Eagle. Of course, a short op-ed cannot go into as much depth as a longer article or blog so I appreciate this chance to correct some misunderstandings.

First, scholars routinely distinguish between judicial selection (how a judge initially gets on the court) and judicial retention (how the judge stays on the court) because selection and retention raise very different issues. My op-ed’s statement about selection is absolutely correct: “All the power in selecting the justices of the [Kansas] Supreme Court belongs to the governor and the bar (the state’s lawyers). So if the governor and bar want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.”

When it comes to retention, reasonable people can disagree about how hard it should be to remove a judge. What reasonable people cannot dispute, however, is that a system of retention elections make it extremely hard to remove a judge. As my op-ed said “these ‘elections’ lack rival candidates and thus rarely include any public debate over the direction of the courts. In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. With these judges so entrenched once they are on the court, the process for initially selecting them is all the more decisive.”

Retention elections are nearly always rubber stamps, not just in Kansas, but in the other states that use them as well. Professor Brian Fitzpatrick points out that, nationwide, sitting judges win retention over 98% of the time. This rubber-stamp aspect is intentional. As Professor Charles Geyh puts it, “Retention elections are designed to minimize the risk of non-retention, by stripping elections of features that might inspire voters to become interested enough to oust incumbents.”

Professor Michael Dimino explains: “retention elections protect incumbency in multiple, related ways: They minimize the incentives for opposing forces to wage antiretention campaigns by preventing any individual from opposing the incumbent directly; they eliminate indications of partisanship that allow voters to translate their policy preferences cost-effectively into votes; and they increase voter fears of uncertainty by forcing a choice of retaining or rejecting the incumbent before the voter knows the names of potential replacements.” Prof. Dimino concludes that “retention elections seek to have the benefit of appearing to involve the public, but in actuality function as a way of blessing the appointed judge with a false aura of electoral legitimacy.”

In other words, the lawyer groups who designed and pushed for retention elections did so to create the appearance, without the reality, of judicial accountability to the citizenry. Very sneaky of them because it fools some people into being distracted by rarely-meaningful retention elections, rather than focusing on the real action: initial selection of judges.


9 responses to “Kansas has the appearance, without the reality, of judicial accountability”

  1. James

    The Jackass is just that. They have an interest in the current system, there’s just no other explanation for their blind support of the current system.

  2. Gregory H. Bontrager

    If you should find yourself before a Reno county court, fasten you seat belt, you may be in for a bumpy ride. You may find the Judge handling your case is not the impartial arbiter we have been led to believe they should be.

    You may find that some of Reno counties finest use the bench to dispense justice according to personal prejudice, rather then the intent of the law. The sad fact is some judges of the 27th district have held office so long they have acquired a sense of infallibility, power corrupts, and in my opinion, with the Reno county courts this is true.

    In my view, the 27th Judicial district has an odd assortment of eccentric, retaliatory individuals who use there power as an extension of there personal beliefs and opinions and will retaliate against those who may defy there wisdom.

    To some extent, these individuals have spent little time earning a living other then at tax payer expense, and may be incapable of doing otherwise. They have become creatures of a privileged bureaucracy.

    If you find yourself before a Reno county court, retain an attorney from another area whose livelihood does not depend on going before these judges. This simple expensive act may turn a loss into a victory.

    Always order a copy of the court transcript, you may be surprised by the inaccuracies, if not outright lies you discover. Never go to court or into the Judges chambers without independent witnesses present.

    If you arrive at court and see the opposing attorney coming out of the judges chamber, be afraid, be very afraid. This means the opposing advocate has had first contact with our “impartial jurist”. Is this ethical? Never let ethics stand in the way of our local judiciary.

    With the Kansas Commission on Judicial Qualification acting as goalkeeper for the 27th Judicial district. Reno county Judges stand safe from all but the most egregious ethical violations.

  3. […] The problem is one of perception. The judicial retention elections appear to give citizens a voice. The state holds elections, after all. But as Professor Ware explains, the choice is illusory. More about this and Ware is in my post Kansas has the appearance, without the reality, of judicial accountability. […]

  4. […] You can read the entire paper at The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court. Previous coverage of this issue is at Kansas must change its judicial selection method and Kansas has the appearance, without the reality, of judicial accountability. […]

  5. Protection from Abuse Orders (PFA) were put in place to address a serious problem; unfortunately, they have become a tool used by dishonest attorneys or vengeful spouses to extort money or revenge out of hapless spouses.

    By the thousands, Kansans are labeled “abusers” by those who have a vested interest in misrepresenting the truth. Unscrupulous attorneys shamelessly manipulate PFA rules for financial gain while masquerading under the color of law.

    Even more disturbing is that our Judiciary will stand idly by, as false claims of abuse are taken at face value. With a wink and a nod the reputations of fellow Kansans are being destroyed in a quasi-legal process with standards akin to the Salem Witch-Hunts.

    Why is this disgrace allowed to continue? Because most legislators are attorneys guaranteeing themselves continued profits at the expense of honest folks in what has become a corrupt money making scam called “divorce.”



  6. There really aren’t very many lawyers in the Kansas House. Someone could do the analysis just by looking at the Legislature’s website, which lists the occupation of each member. That would take a bit of time. I’d be surprised if more than ten percent are lawyers.

    This doesn’t mean that your other allegations are not true, but you’ll have trouble gaining credibility when facts that can easily be checked — like the number of attorneys in the legislature — can be disproved.

  7. You may or may not have a valid point about the percentage of attorneys in the legislature. I would be surprised if your guess of ten percent is accurate. It would be interesting to know the exact number.

    However, I don’t think there is any doubt the system has been hijacked by dishonest attorneys for finical gain, and their lobbying power in the Kansas legislator would certainly be out of proportion to their number. Couplings this with a complacent judiciary has keep this corrupt system in place.

    What started out with the best of intentions has turned into a nightmare for innocent Kansans falsely accused of abuse.


  8. Judiciary’s integrity iffy

    There needs to be a comprehensive investigation of the 27th judicial district. In my view, The Hutchinson News article of Nov. 27 represents the tip of the iceberg. I don’t think this is a problem with one judge, but a result of having elected officials whom the community has allowed to take up residency in their positions. An examination of various attorneys and their relationship with the Reno County courts is in order. From personal experience I have called into question the conduct of our legal/judicial system as it relates to civil issues in Reno County. I believe cronyism and favoritism are rampant in the 27th district.

    I am of the opinion the Commission on Judicial Qualifications’ primary roll is not to protect the citizenry from bad judges, but to protect judges from legitimate grievances of the public. I personally have had a local attorney refuse to take me as a client because I filed a complaint against one of our local judges. I was warned by another attorney to drop my complaint “because this is a small town with a long memory.”

    Such is the political environment in Reno County. Lawyers who have to appear before the same judge year after year have more concern for their careers than the welfare of their clients.



  9. Harsh judgment

    How many citizens of Reno County have found themselves before our esteemed 27th judicial district? How many of you have had one of our ‘guardians of justice’ place bald-faced lies about your supposed courtroom conduct in public record. How many of you have read sworn court transcripts listing you as present in court, when you were home in bed? I have.

    All of our jurists are of the highest character, or are they? I guess the question is have enough citizens of Reno County seen the dark side of our legal/judicial system as it works on an everyday basis? If you haven’t, you may be in for a surprise.

    Here is good news. We don’t need a revolution or revolt to change this system. The founders of our nation have given us all the tools we need to effect change. Go to the polls and vote. With a little involvement we can make our community a better place to live.




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