Decision: Kansas Judicial Review v. Stout

December 5th. The Kansas Supreme Court handed down a Per Curiam opinion in the case of Kansas Judicial Review v. Stout, No. 100,170.
This case is arguably more important than the Phill Kline decision which was also handed down December 5th. It pertains to a Federal Case brought against the Kansas Commission on Judicial Qualifications by Kansas Judicial Review that seeks to have three provisions of the Kansas Code on Judicial Conduct struck down under the First Amendment to the United States Constitution. Kansas Judicial Review and its co-plaintiffs (two elected district judges) prevailed in US District Court and won a preliminary injunction. This ruling was appealed to the Tenth Circuit Court of Appeals which decided that the case raised questions of state law and policy and certified five questions to the Kansas Supreme Court for resolution. This opinion contains the answers to those questions.

Violating the canons of judicial conduct can result in a judge being removed from the bench. In analysing the canons, the Court held that:

  1. Depending on the questions involved, a judicial candidate could violate them by answering a questionnaire on disputed legal and political issues.
  2. A judicial candidate violates them by personally collecting signatures for their nomination.
  3. A judge’s “faithful and impartial performance of the duties of the office” includes all conduct relevant to the candidate’s performance in office.
  4. A judicial candidate violates them by appearing to commit themselves to a particular decision based on the reasonable observer standard.
  5. A judicial candidate does not violate them in completing a questionnaire if the questionnaire was a bona fide request which originated outside of the candidate and not being completed for the purposes of securing an endorsement.

This final answer was confused since it does not explicitly state that such an act would be OK, except in reference to requests from the media. It does not proffer advice that covers a questionnaire from a pressure group.

The decision of the court is unsurprising, though the absolute prohibition on a judge collecting their own nomination signatures is striking. Without the ability to do that, a judicial candidate requires a committee working on their behalf from the outset. By definition this reinforces the idea that only insiders get to be judges. Evidently these rules are designed to ensure quiescent judicial elections, which get no attention and which encourage candidates to hide their judicial philosophies through a chilling effect on their electoral activities. It remains to be seen whether the Tenth Circuit Court of Appeals will see it that way. (It should be noted that the Kansas Supreme Court was not asked to rule on the constitutionality of the canons).

Note: Justice Luckert was recused from this case. Her place was taken by Court of Appeals judge and unsuccessful Supreme Court applicant, Steve Leben.


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