PUBLISHED BY THE OCTOBER 2015 • ISSUE 2 LEditor: Ron Keefover AW W ISE Coordinators: Hon. G. Joseph Pierron Jr.; Anne Woods, Ryan Purcell, & Beth Warrington, KBA staff

Greetings from the Bar Association (KBA). Welcome to this edition of Law Wise and the second edition of the 2015-2016 school year.

IN THIS ISSUE Welcome ast spring, Law Wise ended the school year with an article examin- Welcome...... 1 ing our country’s two court systems, state and federal. This year, we Another Prestigious Award Presented Lpresent a two-part overview about the judges and justices who sit on to Topeka Teacher and Students...... 2 those courts, and how they came to be where they are, a topic of some interest to current members of our legislature. Teaching students and adults Who’s On First? Meet the Judges and Justices about who their judges are and how they are selected in Kansas can be of the Appellate Courts...... 3 an exercise not unlike the old Abbott and Costello comedy bit “Who’s on Lesson Plan: How Well Do You Know Your First?” (https://youtu.be/sMXgvAGbQGg) U.S. Supreme Court?...... 4 This month, Law Wise will walk through the seeming myriad of different judges and jurisdictions to shed a little more light on the least understood Lesson Plan Handouts...... 5 of the three branches of our government, the judiciary. We begin with judges and justices of the Kansas state courts. We will examine the federal Dear Readers: NEW Law Wise Group...... 6 judiciary in the next edition. Terrific Technology for Teachers...... 6 First, the student will have to know what level of court is being refer- enced, whether we are asking about state judges, justices, or magistrates, and in our state we even need to know their geographical location. So, what are the differences, and how did their differing selection processes Calendar of Events come to be in the first place? Let’s take a look. We begin with the state Supreme Court, the only court in Kansas where the judicial officers are properly referred to as justice. These seven mem- bers of the court are selected in a so-called “merit selection process” in which a vacancy is filled by appointment of the governor from a list of three names submitted by a nominating commission, a nine-member statewide panel that has considered a would-be justice’s written applica- tion, conducted job interviews, and otherwise put much thought into their recommendations. The nominating commission consists of a lawyer and a non-lawyer from each congressional district, plus a ninth lawyer member who is elected by attorneys in a statewide election. This selection process was created by a state constitutional amendment in 1958 following a scandal that newspapers at the time called “the triple play.” For background, when Kansas was first admitted to the Union in 1861, elected judiciaries were the norm. However, dissatisfaction with the close interplay between political parties and judicial selection led to a series of reform efforts to transform judicial selection into a nonpartisan process. These efforts succeeded in 1958, when Kansas voters approved a constitutional amendment authorizing merit selection of Supreme Court justices. The amendment’s success has been attributed to the political scandal aptly called the “triple play of 1956,” in which the governor and chief justice resigned their positions with the understanding that the lieu- tenant governor—who would become the governor—would appoint the

www.ksbar.org/lawwise 2 LAW WISE | OCTOBER 2015 former governor as chief justice. District judges must be lawyers. Some counties have district The merit plan for Supreme Court justices was later extend- magistrate judges, who may or may not be lawyers and whose ed to the Court of Appeals and the district courts, with indi- jurisdiction is limited. There is at least one resident judge in vidual districts having the option to move to merit selection or each county, a requirement in the state statutes. maintain partisan elections. The majority of judicial districts in One judge in each district is designated chief judge. A chief Kansas have chosen merit selection; however, almost exactly judge has, in addition to his or her judicial responsibilities, gen- half of the state’s judges are selected in the partisan elections eral control over case assignments within the district and gen- process and half in the nominating commission process. eral supervisory authority over the clerical and administrative In 2013, the Kansas legislature voted to replace merit selec- functions of the court. Until July 1, 2014, the Kansas Supreme tion for the Court of Appeals with a system of gubernatorial Court appointed the chief judge of each judicial district. After appointment and Senate confirmation. Gov. July 1, 2014, the chief judge is elected by the judges in the dis- signed the bill into law on March 27, 2013. This court, which trict following a procedure of their choosing. The statute mak- was re-established in January 1977, currently consists of 14 ing the change in who designates the chief judges currently is judges. the subject of two lawsuits, which contend the Supreme Court In Kansas, one may appeal to the Court of Appeals and then should make the selection as part of their administrative au- ask the Supreme Court for a review of the appellate court’s thority. decision. In certain cases, such as a death penalty case, a di- Finally, there are the municipal court judges. They deal with rect appeal from a district court may be made to the Supreme violations of city ordinances committed within city limits. Court. The court may hear appeals en banc, which means by Cases usually involve traffic or other minor offenses. A per- all 14 of its judges. Most frequently, though, the court sits in son charged with an offense in municipal court may be rep- panels of three. The court may sit anywhere in Kansas and resented by a lawyer. The judge hears cases without a jury. hearings are regularly scheduled in Hays, Garden City, Wich- Anyone convicted in municipal court may appeal to the dis- ita, Chanute, Kansas City, Olathe, and Topeka. Hearings have trict court of the county where the municipal court is located. been in other cities, as well as when it was more convenient Municipal judges in Kansas who are not lawyers must be cer- for all parties. tified by the Supreme Court to hold office. A judge has 18 District courts are the trial courts of Kansas, with general months from taking office to pass an examination given by original jurisdiction over all civil and criminal cases, includ- the Supreme Court. Each year, non-lawyer judges must at- ing divorce and domestic relations, damage suits, probate and tend 10 hours of continuing legal education provided by the estate administration, guardianships, conservatorships, care of Supreme Court. To find municipal court websites, search the mentally ill, juvenile matters, and small claims. It is here for the city name on the League of Kansas Municipalities that criminal and civil jury trials take place. (http://www.lkm.org) website. n Kansas is divided into 31 judicial districts, with varying num- bers of judges in each district. There is a district court in each county and a clerk of the court office where cases are filed.

Another Prestigious Award Presented to Topeka Teacher and Students

Susan Sittenauer, a Topeka civics education award winning The students were able to show Tran the documenary, “Tran high school teacher, has won yet another prestigious award. Ngoc ‘Harry’ Hue: Steadfast Leader for Liberty,” while they The Lowell-Milken Center for Unsung Heroes, Ft. Scott, award- were in Washington, D.C., for the annual History Day com- ed Sittenauer and two of her students, Andrea Sodegren and petition. The students and Sittenauer worked on the project Hailey Reed, its $10,000 grand prize for a documentary about throughout the last school year as they wrote, edited, and pro- a South Vietnamese soldier. duced the story in a manner that would appeal to a wider au- The 10-minute film was based on the life and Vietnam War dience. years of Tran Ngoc Hue, a soldier who fought alongside the The Lowell-Milken Center encourages highschoolers to delve . He endured years of imprisonment as prisoner into history to reveal the good works of people who have re- of war, and later in a communist education camp, the Topeka ceived little public recognition, the paper reported. Sittenauer Capital-Journal reported in a front-page article featuring the also spent part of her summer break at the U.S. Supreme Court students and the award. Summer Institute for teachers on a scholarship awarded by the KBA’s Law-Related Education Committee. n

www.ksbar.org/lawwise OCTOBER 2015 | LAW WISE 3 Who’s On First? Meet the Judges and Justices of the Appellate Courts U.S. Supreme Court

Seated (left to right): Justice Clarence Thomas, Jus- tice Antonin Scalia, Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg.

Standing (left to right): Justice Sonia Sotomayor, Justice Stephen G. Breyer, Justice Samuel A. Alito Jr., Justice Elena Kagan.

Image Credit: Collection of the Supreme Court of the United States, Photographer: Steve Petteway

http://supremecourthistory.org/history-of-the-court

Seated (left to right): Justice Marla J. Luckert, Chief Justice Lawton R. Nuss, Justice Carol A. Beier.

Standing (left to right): Justice Dan Biles, Justice Eric S. Rosen, Justice Lee A. Johnson, Justice Caleb Stegall.

Image Credit: Don Brent Photography and Imaging, Photographer: Don Brent

http://bit.ly/KsSupCtBios

Front Row (left to right): Hon. G. Joseph Pierron, Jr., Chief Judge Thomas E. Malone, Hon. Henry W. Green Jr. Middle Row (left to right): Hon. Michael B. Buser, Hon. Stephen D. Hill, Hon. Patrick D. McAnany, Hon. Steve Leben. Back Row (left to right): Hon. Kim R. Schroeder, Hon. David E. Bruns, Hon. G. Gordon Atcheson, Hon. Melissa Taylor Standridge, Hon. Karen Arnold-Burger, Hon. Anthony J. Powell, Hon. Caleb Stegall.*

*Note: This photo is the latest available of the current Court of Image Credit: Don Brent Photography and Imaging, Photog- Appeals. It includes Hon. Caleb Stegall, who since was appoint- rapher: Don Brent ed to the Supreme Court. Hon. Kathryn Gardner, not pictured, was appointed to succeed him. http://bit.ly/KsCtAppBios www.ksbar.org/lawwise 4 LAW WISE | OCTOBER 2015

Lesson Plan How Well Do You Know Your U.S. Supreme Court?

Source: http://www.streetlaw.org 1. Name the nine justices currently on the Court. 6. Which justice(s) tends to be considered a swing voter(s) – sometimes voting with liberals and sometimes voting with conservatives?

2. Historically, the Court’s members have been Protestant. At various times there has been discussion of the “Catholic seat” or the “Jewish seat” on the Court. 7. Approximately how many cases are appealed to the U.S. Supreme Court each year? Approximately how many are How many members of the current Court are Protestant? accepted for briefing and oral argument? Approximately Catholic? Jewish? what percent are accepted?

3. TRUE or FALSE? In a typical term the Court decides more 8. TRUE OR FALSE? When the Supreme Court decides not cases 5 to 4 than 9 to 0. to hear a case (denies certiorari) it is saying that it agrees with the lower court’s opinion and that the lower court decision should become a precedent.

4. Court watchers are typically hesitant to predict voting pat- terns among justices because the labels of “liberal” and “conservative” are not always clear or consistent and jus- tices are not always in one “camp” or another. However, 9. Which court system generates most of the cases accepted which justices typically tend to be considered most “con- by the U.S. Supreme Court—state or federal? Explain your servative”? answer.

5. Which justices tend to be considered most “liberal”? 10. TRUE or FALSE? Most experts who study the Court be- lieve that the primary reason the Court decides to hear a case is to correct a legal error made by a court below.

11. Which justices, if any, had no prior judicial experience before joining the Court?

Answer Key on Page 4 www.ksbar.org/lawwise OCTOBER 2015 | LAW WISE 5 How Well Do You Know Your Supreme Court? (Answers)

1. The justices are John Roberts, Antonin Scalia, Anthony 7. In recent years the Court has received approximately Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen 8,000 petitions for certiorari each term. In recent years the Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Court has averaged about 75 decisions per term; gener- ally, fewer than 1 percent of cases are accepted. During (Additional background notes: This list is in order of se- the 2011-2012 term, the Justices issued 65 signed opinions niority. Antonin Scalia has been the longest serving but after full briefing and argument (though with summary re- the chief justice is considered by tradition most senior. versals this number rises to 75). This is slightly lower than Elena Kagan is the newest of the justices.) past terms in part due to the fact that several big cases, including the Affordable Care Act cases, were consolidat- 2. Given the tradition of the Court as almost exclusively Prot- ed into one opinion. The Justices issued 75 opinions after estant, the current group is quite unusual and historical. full briefing and argument in the 2010-2011 term and 72 The following are Catholic: Kennedy, Roberts, Alito, Scalia, opinions after full briefing and argument in the 2009-2010 Thomas, and Sotomayor. The following are Jewish: Breyer, term. Ginsburg, and Kagan. The Court is now composed entirely of Catholic and Jewish justices for the first time in it s histor y. 8. FALSE. When certiorari is not granted, no precedent is set. The decision below simply stands. The media frequently As a historical note, the first Catholic justice was Roger (and incorrectly) report a denial of certiorari as a deci- Taney, who took the bench in 1836, and the first Jew- sion on the merits (e.g., the Court today approved a lower ish justice was Louis D. Brandeis, whose service began court decision…). in 1916. 9. The majority of cases handled by the Supreme Court come 3. FALSE. In a typical term, the Court issues from the federal courts (specifically the federal courts of more unanimous decisions than 5-4 decisions. appeal). While state courts decide about 30 times as many cases as the federal courts, most state court decisions do (Additional background notes: In the previous term (2011– not raise a federal constitutional question or a question of 2012), 20 percent of the total cases were decided five to federal law. Unless such questions are raised, the U.S. Su- four, and 45 percent were decided unanimously. The preme Court has no power to decide the case. In a typical trend in recent years has been for 15 – 20 percent of the term, about 10 percent of cases came from state courts. cases to be decided 5-4 and 40 – 50 percent of the cases to be decided 9-0.) 10. FALSE. The primary reason the Court decides to hear a case is to resolve a conflict between lower courts as to 4. Most Court watchers believe the more conservative jus- the resolution of a particular legal question. The U.S. Su- tices are Roberts, Alito, Scalia, and Thomas. preme Court is not a court of error and does not attempt to correct legal errors from other courts. 5. Most Court watchers believe the more liberal justices are Ginsberg, Breyer, Sotomayor, and Kagan. 11. Justice Kagan. Before her appointment, all the justices on the Court had previous judicial experience. The last 6. With new members joining the Court in recent years, justice who was appointed without having first served as alliances are somewhat less certain. For the last several a judge elsewhere was William Rehnquist in 1972. terms, Justice Kennedy has tended to be a swing vote on cases where the justices were narrowly divided (i.e., 5-4 NOTE – SCOTUS blog (at www.scotusblog.com) provides a votes). This past year he was in the majority in 80 percent great source of statistics about current and past Supreme Court of the 5-4 decisions (and in the majority for 88 percent of terms. n all split decisions). By contrast, Justice Ginsburg was in the majority for only 40 percent of the 5-4 decisions in the 2011-2012 term (and in the majority for 45 percent of all split decisions). She was least often in the majority in these cases.

www.ksbar.org/lawwise 6 LAW WISE | OCTOBER 2015

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Te r r i fi c Te chn o lo gy f o r Te ach e r s Interested in lesson plans about the U.S. Supreme Court? Need a quick walk-through of the Kansas courts? The Jus- The Supreme Court Historical Society maintains an ongo- tice in Kansas video was published by the Kansas Supreme ing educational outreach program designed to expand un- Court in January 2009. It explains the structure and function derstanding of the Supreme Court, the Constitution and the of the Kansas judicial branch as it existed then. Since the judicial branch. Teachers who are looking for classroom video was produced, a 14th judge position was added to teaching materials about the high court can find examples the Court of Appeals and the method for selecting Court of of lesson plans used by other teachers by clicking the PDF appeals judges has changed. links on the menu at: http://bit.ly/1QUThQD http://supremecourthistory.org/lc_home.html

What are the key U.S. Supreme Court landmark cases? A one-stop link to everything you want to know about the landmark cases decided by the Supreme Court can be found at the Constitutional Rights Foundation website at: http://bit.ly/1Mbtjoj

The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Ron Keefover at [email protected]; or Anne Woods, public services manager, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

www.ksbar.org/lawwise