Kansas Judicial Watch v. Stout
| Decision Date | 19 July 2006 |
| Docket Number | No. 06-4056-JAR.,06-4056-JAR. |
| Citation | 440 F.Supp.2d 1209 |
| Parties | KANSAS JUDICIAL WATCH, et al., Plaintiffs, v. Mikel L. STOUT, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Anita Young Woudenberg, James Bopp, Jr., Susan Lynn Lee, Thomas Joseph Marten, Bopp, Coleson & Bostrom, Terre Haute, IN, Richard J. Peckham, Andover, KS, for Plaintiffs.
George T. Patton, Jr., Bose McKinney & Evans LLP, Washington, DC, Marisol Sanchez, Bose McKinney & Evans LLP, Indianapolis, IN, Stephen O. Phillips, Kansas Attorney General, Topeka, KS, for Defendants.
The Court now considers plaintiffs' Motion for Preliminary Injunction (Doc. 5) and Motion to Consolidate (Doc. 2).1 The Court held an evidentiary hearing and heard oral argument on June 28, 2006. After fully considering the written briefs, oral argument, and evidence adduced at the hearing, the Court grants in part and denies in part the motion for preliminary injunction, as explained more fully below. The Court denies plaintiffs' motion to consolidate the injunction with a trial on the merits.
The Kansas Supreme Court adopted Rules Relating to Judicial Conduct on November 13, 1973.2 The Kansas Rules were based on the American Bar Association's ("ABA") Draft Model Code. The original draft contained a provision stating that a judicial candidate, including an incumbent judge should not make pledges or promise of conduct in office other than the faithful and impartial performance of the duties of the office; or misrepresent his identity, qualifications, present position, or other fact; or announce his views on disputed legal or political issues, except that he may answer allegations directed against his record in office.3
In 1986, Canon 7B was modified to read that a judicial candidate, including a judge, should not "make pledges or promise conduct other than the faithful and impartial performance of the duties of the office.4 The remainder of original Canon 7B(1)(c) was excised.
The current Kansas Judicial Code contains five judicial canons that apply to judges and in some cases to judicial candidates. Kan. S.Ct. R. 602 established the Commission on Judicial Qualifications ("the Commission") at the same time the canons were adopted, "to assist the court in the exercise of its responsibility in judicial disciplinary matters."5 The Commission is comprised of fourteen members — six active or retired judges, four non-lawyers, and four lawyers appointed by the Kansas Supreme Court.6 The Commission is divided into two panels; one is headed by the Chair of the Commission and the other is headed by the Vice-Chair. The Commission is divided to insure that the panel that conducts the investigation is different from the panel that conducts the hearing, if the case proceeds to the hearing stage.
The disciplinary process begins with the tiling of a complaint with the Commission. The investigatory panel of the Commission then evaluates the complaint and determines an appropriate course of action that can include: dismissal, a letter of caution, informal advice, or public or private cease and desist orders. If a cease and desist order is resisted by the subject of the complaint, the case goes before the hearing panel. Moreover, if the investigation panel concludes that formal proceedings should be instituted, it must issue a notice of hearing.7
If the hearing panel finds that the charges are proven by clear and convincing evidence, it "shall (1) admonish the judge, (2) issue an order of cease and desist, or (3) recommend to the Supreme Court the discipline or compulsory retirement of the judge."8 The hearing panel may also recommend temporary suspension.9 If the hearing panel finds either that the charges have not been proven or that no recommendation should be made to the Supreme Court, then the proceedings are terminated.10 The hearing panel's findings of fact and conclusions of law are conclusive in the Supreme Court only if no exceptions are filed by the respondent under Rule 623.
In 1984, the Kansas Supreme Court instituted Rule 650, which authorized the creation of the Judicial Ethics Advisory Panel ("the Panel"). The Panel was created to "serve as an advisory committee for judges seeking opinions concerning the compliance of an intended future course of conduct with the Code of Judicial Conduct." The Panel consists of three retired judges or justices who answer requests for judicial ethics advisory opinions by those subject to the Judicial Code. The Panel's opinions may not address issues of law nor the ethical propriety of past or present conduct. The advisory opinions are not binding on the Commission or the Kansas Supreme Court, although the Commission will take into account any advisory opinion relied upon by a judge or judicial candidate.11
In the State of Kansas, district judges are selected by gubernatorial appointment from a nominating commission in seventeen districts,12 and through partisan election in fourteen districts, including Sedgwick County.13 Plaintiff Kansas Judicial Watch ("KJW") is a political action committee that is not associated with any political candidate, party, or campaign committee. KJW gathers information and publishes questionnaires about judicial candidates. KJW intends to publish responses to its 2006 Judicial Candidate Questionnaire ("Questionnaire") of judicial candidates before the primary election on August 1, 2006 and would like to do so in future elections, as well.
In February 2006, KJW mailed a cover letter and a Questionnaire to all judicial candidates in Sedgwick County, Kansas, and to, all nine of the Kansas Court of Appeals judges. The letter explained that the Questionnaires were due back to KJW by March 13, 2006. The Questionnaire presents eight propositions about law and policy to judicial candidates and provides five options for the candidate to mark: Agree, Disagree, Undecided, Decline to Respond, and Refuse to Respond. These eight propositions are:
1. The Kansas Supreme Court violated the Separation of Powers provision of the State Constitution in its recent series of rulings in Montoy v. State, 279 Kan. 817, 112 P.3d 923 (2005), mandating specified spending levels for Kansas education funding.
2. Under the Kansas Constitution, the Kansas State powers to tax its citizens and spend the revenues are the sole prerogative of the Kansas state legislature and not the Kansas Supreme Court.
3. Under the Kansas Constitution, a statute defining marriage as between one man and one woman is the prerogative of the Kansas State Legislature, not the Kansas Supreme Court.
4. Marriage should only be between one man and one woman.
5. Under the United States and Kansas Constitutions, local community standards should be the major determinant of the definition of pornography as a punishable offense.
6. The Kansas Constitution permits the state legislature to establish or to deny the death penalty as a criminal punishment in the case of first degree murder, and that such a penalty is not to be determined, established or denied by the Kansas Supreme Court.
7. The unborn child is biologically human and alive and that the right to life of human beings should be respected at every stage of their biological development.
8. There is no provision of our current Kansas Constitution that is intended to protect a right to assisted suicide.
The "Decline to Respond" option is accompanied by an asterisk, which reads:
This response indicates that I would answer this question, but believe that I am or may be prohibited from doing so by Kansas Canon of Judicial Conduct 5A(3)(i) and (ii), which forbids judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" or "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." This response also indicates that I would answer this question, but believe that, if I did so, then I will or may be required to recuse myself as a judge in any proceeding concerning this answer on account of Kansas Canon 3E(1), which requires a judge or judicial candidate to recuse him or herself when "the judge's impartiality might reasonably be questioned...."
KJW alleges in its Complaint that it received seven responses from judicial candidates and that all but one of these candidates marked "Decline to Respond" on all of the eight statements in the Questionnaire. Plaintiff Robb Rumsey, a 2006 district court judicial candidate in Sedgwick County, marked "Decline to Respond" on all statements in the Questionnaire. Sedgwick County District Judge Anthony Powell returned the Questionnaire, marking "Decline to Respond" on each statement and also attached a cover letter. In that cover letter, Judge Powell states:
Please note that I have declined to respond to every question due to the fact that it is my belief that I am or may be prohibited from doing so by the Kansas Canons of Judicial Conduct. Specifically, Canon 5A(3) forbids judicial candidates from making pledges or promises of conduct in office other than the faithful and impartial performance of their duties, and also forbids statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.
In a March 10, 2006 letter, KJW asked both the Commission and the Panel whether judicial candidates could respond to the Questionnaire without fear of discipline. Carol G. Green, Secretary of the Commission, responded on March 15, 2006, stating that the Commission does not render advisory opinions; rather,...
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