I have filed an ethics complaint with the Kansas Commission on Judicial Qualifications against Kansas Supreme Court Justice Lawton R. Nuss.
I happen to disagree with the ruling the Kansas Supreme Court made in the case cited in my complaint. I have been asked whether I would have filed the same complaint if I had agreed with the court’s ruling. The answer to that question is probably not. My level of interest would probably not be what it is. That troubles me, as we as citizens need to be watchful for these types of judicial transgressions, no matter what our political beliefs are, and not mattering whether we benefit from the judge’s rulings.
The form I filed with the Commission asks for a twenty-five word statement of what the judge did that was unethical. This is what I wrote:
Justice Nuss was a member of the law firm representing a party whose case is now before his court.
For the details of the complaint, I wrote this:
In the case Montoy v. State, the Salina School District is a lead plaintiff. Justice Nuss’s former law firm previously represented and may still represent this plaintiff.
In the Kansas Rules Relating to Judicial Conduct, Canon 3E(1)(b) states that a judge shall disqualify himself or herself where “the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter …” This seems to apply to Justice Nuss in this case.
Furthermore, Justice Nuss’s involvement in this case raises questions of impartiality and appearance of impropriety.
Canon 2, paragraph A states: A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
In the commentary: A judge must avoid all impropriety and appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
Because of Justice Nuss’s close association with this case, a reasonable person could conclude that the judge cannot carry out his duties with impartiality.
Since the Kansas Rules Relating to Judicial Conduct, Canon 3E(1)(b) limits recusal to where the “lawyer with whom the judge previously practiced law served DURING SUCH ASSOCIATION AS A LAWYER CONCERNING THE MATTER …” (emphasis added), I’m curious as to whether the firm was representing the plaintiff while Justice Nuss was still a member. If he practiced with the firm before the firm took on the plaintiff’s case, then there isn’t any problem. If the firm was actively engaged in representing the plaintiff when Justice Nuss was a practicing member of the firm, then he should certainly recuse himself.
Nor should it raise any reasonable concerns about the appearance of impropriety. If the Justice were required to recuse himself from any case where a lawyer that he once practiced with were involved, judges with extensive legal experience would be effectively barred from serving in their home jurisdiction. This would result in the practical necessity of having Supreme Court judges that either (a) lack substantial legal experience, or (b) have spent little time in Kansas, and are thus substantially unfamiliar with Kansas law. Moreover, the underlying logic of such a broad rule would require judges to recuse themselves from any cases involving attorneys that have practiced extensively in their court, because of a concern about friendships or familiarities that may have arisen as a result of time spent together. Other than some kind of rotational, traveling system where judges are switched around in the state (or even from out of state) periodically, it’s difficult to see how such a worry could be averted.