May 2006
May 25, 2006
(Distributed to Kansas newspapers May 22, 2006)Politics & the Supreme Court
The Kansas Supreme Court, final arbiter of whether the just-signed $466 million school finance bill makes “suitable provision” for financing of the education of hundreds of thousands of Kansas schoolchildren, just may wander into a new layer of politics that could destabilize the court itself.
Here’s what to look for.
First, the court is going to decide that the Legislature’s school finance bill—signed into law by the governor last week—either does or doesn’t meet the court’s order to suitably finance public schools.
Now, that relatively simple declaration won’t be, on further examination, simple.
So far, all decisions in the Montoy v State school finance case have been unanimous. That means that even legislators and their constituents who have groused about the court “trying to make law” and “playing legislature” and just outright meddling haven’t known who among the court members are the “meddlers.” That’s the beauty of a unanimous decision—no one specific to blame if that’s your inclination. And that is the inclination of many legislators and many of their constituents.
But when the court this year considers the school bill, subtle indications are that there will be hard-fought bargaining among justices as they confidentially argue among themselves whether the school bill meets the requirements of the state constitution.
Now, the constitution is the constitution, but at least three justices are on record as believing that education is a “fundamental right” of schoolchildren—which leads to a higher level of scrutiny of the provisions of the school finance bill. Fundamental rights are so basic, so immutable to Americans that they demand to-the-letter protection.
What if, in those Supreme Court deliberations, the “fundamental rights” crowd takes a harder line than the rest of the justices? What if the decision on the school finance law is a split decision with, say, four votes to demand the Legislature spend more money or reshuffle the money it has in the school finance bill?
Then, legislators and the public learn who the justices are who are “meddling.” And you can bet when their retention election comes ‘round, they’re going to be the targets of a “throw ‘em out” campaign.
In fact, it’s not hard to imagine justices playing that retention card in their deliberations. Do justices who won’t stand for retention again (Justice Don Allegrucci’s term ends next January, Chief Justice Kay McFarland’s in January 2009) press for sending the finance bill back to the Legislature, or giving the Legislature a passing grade this year? Or do the three “fundamental right” justices (Carol Beier and Marla Luckert whose terms run until 2010, and Robert E. Davis who stands for retention this year, but hadn’t filed by May 19) ally themselves with an out-going justice to tip the balance?
The newest justice, Eric Rosen, first appears on the retention ballot in 2008. Would he rather be part of a unanimous decision or part of the majority or a dissent if there is a split decision?
Unanimity is the court’s goal here, and while we’re talking Supreme Court justices, they also realize that they hold their jobs by the will of voters. And that means in those private conferences there may be some wriggle room, some tradeoffs, some politicking that we’ll never see.
Or, when the court hears the arguments of the defenders of the school bill and its detractors, it might just be so clear to them that the Legislature has either hit or missed the mark that their conference might just be a grinning contest and unanimity in a decision either way simply a matter of writing up the order.
We won’t know until someone writes memoirs and we’re assuming there is a relatively small market for memoirs of a Kansas Supreme Court justice…so, we’re thinking…maybe a paperback…
May 18, 2006
(Distributed to Kansas newspapers May 15, 2006)Granny packing heat?
The battle over concealed-carry of pistols—or we guess depending on what you’re wearing and what it can conceal, even long guns—is over.
If you don’t want to carry a concealed weapon, of course, you don’t have to. If you want to carry a concealed weapon, you get to jump through a number of hoops, spend money, spend a whole day in training (no decision on whether that mandatory eight hours includes a lunch break) and watch movies, read pamphlets and finally, shoot your gun.
That training will presumably teach people how not to shoot themselves and when it’s better not to shoot at all. It also will teach people when it’s best to leave the pistol in the car or when it’s best to leave it at home, depending on where the pistol-carrier intends to be that day (the school play, the library, the Statehouse, a courthouse or more than a dozen other places where you can’t take a concealed pistol).
Remember, the governor vetoed the concealed-carry bill believing it’s just not good public policy to have a bunch of people wandering around Kansas with hidden guns. She may be right or maybe that’s just how she was raised. But outsized majorities of the Kansas House and Senate overrode her veto. It’s the law now except for a “trailer bill” that wraps up some loose ends.
Concealed-carry opponents clearly lost the war but the trailer bill presents yet another venue for the gun/no-gun fight: Making public the names of people who go through the process to earn the privilege (it’s not a right, though that sounds better on brochures) of carrying a concealed pistol.
The trailer bill keeps names of concealed-carry permit-holders confidential. That bill is awaiting action by the governor. Concealed-carry opponents want the bill vetoed to provide more information about permit-holders.
Besides the nifty newspaper stories it would make, you gotta wonder what the upside is for anyone of making known who may be lawfully carrying a concealed weapon.
The nifty stories, well, you can imagine: “Granny packing heat,” “Shoes, purses and holsters for spring” and “Lose that annoying pistol bulge.”
If you buy into the presumption that people really believe they have to go through the process to carry a concealed gun for their personal protection, well, publishing their names wrecks that. There are people who work late shifts and are relatively easy prey for muggers, thieves and others, and women who are being stalked who are better off just quietly and confidentially carrying their pistols with no further ado.
And if you buy into the presumption that robbers and muggers will be less likely to assault people if they have a reason to believe their potential victims are armed, well, when you publish the names of people who are armed, you’ve essentially created a check-list of people that your businesslike bandit would rather pass up in favor of everyone else. It’s hard to pencil out the advantage to anyone with that scenario.
There may well be the chance that someone reading the list of concealed-carry licensees may recognize a name of someone who probably shouldn’t have a gun. That guy down the street who lines his ball cap with tinfoil to prevent aliens from speaking to him, or the friend who needs a lift to rehab. Presumably, the local sheriff knows them, too, and won’t let them get a permit.
Then this gets tricky because it appears the multi-faceted trailer bill probably makes concealed-carry work better, whether you like the law or not.
The politics of the trailer bill with the privacy provision? Well, it’s a way for the governor to demonstrate to gun fans that she’s taken her defeat and is willing to make sure that the law works. Opponents don’t have a lot of interest in making the law work smoothly.
This might be an interesting couple weeks to watch the governor’s office.
May 11, 2006
(Distributed to Kansas newspapers May 8, 2006)Even 'lite' too much?
It looks like the Legislature this session has taken the Taxpayer Bill of Rights (TABOR) for a spin but isn’t buying the concept that it should take a two-thirds majority of the House and Senate to approve any tax increases.
That’s the theme of TABOR, essentially make raising taxes so difficult that, well, taxes just won’t get raised. The initial TABOR proposal a year or two ago was for a constitutional amendment that would require voters to approve tax increases. That didn’t work. The House laboriously removed agency after agency, program after program from the provisions of the TABOR resolution until there wasn’t much left of it. It was then taken back to committee, out of the debate mode, where it quietly died.
This year, rather than send tax increases to a public vote, the concept was “TABOR-lite” in which tax increases didn’t go to Kansas voters for approval but would require 84 of the 125 House members to vote for a tax increase and 27 of the Senate’s 30 members to authorize a tax increase.
The amendment-fest started in the House last week, first with programs for the elderly and poor exempted from the two-thirds majority requirement, then higher education, and, well, by that time, legislators saw that the measure was going nowhere.
It did, though, provide a forum for mostly Democrats to defend parts of their voter base from being subject to the two-thirds majority, and probably some points were scored there.
Supporters of “TABOR-lite” got their issue to campaign on, though. Members of the Legislature who voted to end debate and send the resolution back to a committee and out of the line of fire were—and will be this campaign season—branded as potential tax increasers. No matter that the reach of TABOR-lite was being shortened with every amendment, its effect diminished; if you weren’t for continuing debate as agency after agency was pulled from the grasp of TABOR, you wound up on a list of House members seeking reelection who are for raising taxes.
It’s a dab of a distortion, of course, but it’s probably good enough for some campaign brochures.
The real key to TABOR is not that it would take a two-thirds majority of the House and Senate to pass a tax increase, but that it would take only one-third of the House and Senate to block a tax increase.
It would be like a family of three—mom, dad and junior—voting on whether to have ice cream and cake for dinner, and letting junior have the deciding vote. Not likely to happen in most families, but that would essentially be the effect of TABOR. Statistically, as few as 14 legislators—one more than one-third of the 40-member Senate—could determine the state’s tax policy. That’s a lot of power to hand over to less than 9 percent of the 165-member Legislature.
It’s also a little surprising that people believe TABOR is needed in Kansas, where a clear majority of the Legislature, maybe even the two-thirds that TABOR targets, believe that raising taxes is absolutely, positively the last option if it appears that the state needs more money. Kansas legislators have done some unpopular things to avoid raising taxes, including even borrowing money from the highway fund and jeopardizing highway construction projects, just to make sure that they didn’t have to vote for tax increases.
Chances are good that the concept of super-majorities just doesn’t feel right to most Americans, and Kansans. And, it’s worth remembering that most tax increases in the past decade or so have been passed by the Legislature with more than bare majorities, the minimum 63 in the House and 21 in the Senate. Those tax increases have generally occurred when every other option has been tried and failed, and a tax increase is the last ditch effort to find the money that the state needs for programs and projects for its citizens.
Kansas legislators would rather cut taxes, sure, if they can, or at least hold them steady without change when it’s possible, but it’s a short line that proposes raising taxes for reasons that aren’t generally understandable.
May 4, 2006
(Distributed to Kansas newspapers May 1, 2006)A legislative outrage?
It’s still difficult to tell exactly what to make of this uproar and daily headline-making lunch meeting between a Kansas Supreme Court justice and two members of the State Senate.
There’s still too much posturing, too much feigned shock and outrage, and probably a little too much protecting of legislative turf from judicial encroachment still going on.
The facts are pretty sparse so far. Justice Lawton Nuss had lunch with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina, and at some point, Nuss produced a paper on which he’d written down his take on what two studies showed the state ought to be spending on school finance and his take on the cost of a bill that was at that time teed-up for a vote in the House.
The whole school finance deal is said to have lasted only a few minutes, and Morris and Brungardt straightened out some misperceptions of the cost of the House bill.
Practically, if Nuss was unsure about the cost of the school finance plan and how to calculate it, you almost wonder whether the court was shooting in the dark last session when it declared one school finance bill unconstitutional.
Now, it is obviously not a good thing that Nuss discussed the school finance case—or maybe it wasn’t the case, maybe it was just some confusing numbers and cost figures—with members of the Legislature. Nuss should have known better. While few of us know the particulars of the Canons of Judicial Ethics, that discussion just doesn’t sound right, and it is probably a shame that it took Nuss more than a month to fess up to the conversation and recuse himself from the case. That recusal means he just won’t take part in further discussion of the case on the court or vote on whether whatever school finance bill the Legislature finally approves moves the Legislature toward providing suitable provision for financing public education.
Nuss is out of the case. He can’t use whatever information he received toward forming a decision on school finance and he’s basically got the afternoon off whenever the court compares this year’s school finance bill and the court order that the state soup up financing of public schools.
Sort of a no-harm, no-foul deal, except we hope the rest of the court isn’t confused about the same stuff that Nuss talked to the senators about.
The outrage among legislators who are still angry that they missed part of last summer’s vacation—when they had to hold a special session of the Legislature because the Supreme Court demanded lawmakers add more money to the school finance plan—has been stoked.
Nope, nobody believes at this point that Nuss got much in the way of “inside information” or that as a single justice, he could make a deal with the senators: You do this, and the court will OK your bill.
But from the level of legislative outrage, you’d think that Nuss was a coach running in a play that he wanted the Legislature to carry out.
And the reported banter over a Mexican restaurant lunch was apparently in the vein of “boy, wouldn’t a bipartisan bill be a neat deal.” That’s so politically sophomoric that it hardly reaches the level of forbidden communication. Everyone wants everything to be bipartisan in the Legislature. It’s the equivalent of a nice slow rain on a newly seeded field. Nobody doesn’t like a nice, bipartisan bill about school finance or fence law or, well, nearly anything.
Besides the indiscretion that Nuss fixed by recusing himself from the case, is there really anything shocking going on? Has the separation of powers of independent branches of government been shredded? Probably not.
But that doesn’t mean we won’t keep hearing about it in great detail, with varying levels of outrage and feigned shock and disgust.
We’ll just keep watching, though, to see whether this amounts to anything serious or whether this is just high school-level indiscretion played out on the front pages of newspapers