Law Wise • 2016-17 (No. 2) by Kansas Bar Association

PUBLISHED BY

LAW WISE OCTOBER 2016 • ISSUE 2

Editor: Ron Keefover Coordinators: Hon. G. Joseph Pierron Jr. • Anne Woods & Ryan Purcell, KBA staff

Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise and the second edition of the 2016-2017 school year.

IN THIS ISSUE Kansas Judges, Justices at All Levels of Courts on Ballot............................. 1 Kids Voting Kansas Grows to 150,000 Students Voting in Mock Elections............... 4 New Kansas Courts Educational Website Unveiled........................................ 5 Survey Shows Small Percentage of Americans Think They Know A Lot About Country’s Founding Documents, But Support Their Basic Ideas................................................... 5 vOctober Buzz................................................ 6 Terrific Technology for Teachers....................... 6 Lesson Plan (6-8): The Right to Vote: Suffrage Today................. 7 Lesson Plan (9-12): Civic Engagement/Service: Learning Working Together.......................... 8 Lesson Plan (K-2): Elections and Voting: I Study the Candidates and Issues................ 9 iCivics: Can You Win the White House?........ 10 How to Subscribe to Law Wise...................... 10

Calendar of Events National Pro Bono Celebration Week

Oct. 23-29

Election Day

Nov. 8

Kansas Judges, Justices at All Levels of Courts on Ballot

hile the nation’s attention remains focused on the “he said, she said” election campaign for President, in Kansas there is a rare hotly contested race to decide whether five Justices of the Supreme Court and six Judges of the Court of Appeals should be kept for another term of office. This edition of Law Wise focuses on the November 8th judicial retention elections, including how and why such elections came into being in Kansas. On November 8, voters will be asked whether to retain Justices Lawton Nuss, Marla Luckert, Carol Beier, Dan Biles, and Caleb Stegall for another term, as well as Court of Appeals Judges Steve Leben, G. Joseph Pierron Jr., David Bruns, G. Gordon Atcheson, Karen Arnold-Burger, and Kathryn Gardner. Those votes are in addition to local judge races across the state, some of whom are running in partisan elections and others in retention votes. Over the years, such so-called retention elections largely have been without controversy except for a few cycles in which a small group dissatisfied with one or another court decision tried unsuccessfully to vote out one or more of the justices and judges. This year, an active campaign to turn out four of the five Justices (save Gov. Brownback appointee Justice Stegall) was launched based on decisions in several hot-button cases, including school finance, abortion, and the death penalty. Campaign committees on both sides of the debate have been formed, raising the interest level of this November’s non-gubernatorial election the highest since the merit selection of the Supreme Court was first adopted in 1958. Before that, the members of the Supreme Court ran for office in partisan elections, just as other statewide elected officials, typically without controversy or high concern by voters. That changed beginning with the defeat of Governor Fred Hall in the 1956 Republican primary by Topekan Warren Shaw, who lost in the general election to George Docking. Then in what came to be known as the political “triple play,” occurred when then-Chief Justice Smith resigned from the Supreme Court due to ill health on December 31. Lame duck Gov. Hall quickly resigned as governor on January 3, 1957, and Lieutenant Governor John McCuish became governor for the next eleven days. McCuish immediately appointed Hall to the newly vacated Supreme Court seat, McCuish’s only official act during his record shortest tenure as Governor of Kansas. While legal, these actions were considered unethical by politicians on both sides of the political aisle. (Continues on page 2)

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In the spring of 1958, Hall resigned the bench to make an- and Judges have written or dissented in since the website was other bid for governor, but was defeated in the primary by created. Keyword searching is available at the site for students, Clyde M. Reed, thus ending Hall’s political career. Afterwards, voters or others interested in how a Justice or Judge voted on a Hall moved to California and worked for the Sacremento Aero- particular issue of Kansas law, including such things as school jet General Corporation. Two years later, he moved to Los finance, abortion, and the death penalty. Angeles to work for a law firm. He subsequently returned to Kansas and died in Shawnee on March 18, 1970. He is buried in Dodge City. In response to the “triple play,” the 1957 Kansas legislature adopted a resolution for a constitutional amendment concerning the way justices are appointed. The amendment was passed by voters in the 1958 general election. The amendment established a non-partisan Supreme Court Nominating Commission, which after background research and interviews of those applying for a Supreme Court vacancy, three names are sent to the governor for appointment. The justices then stand for retention for six-year terms. Members of the Court of Appeals were selected in the same manner, but for four-year terms when that Court was re-established in 1977. Although Court of Appeals judges still stand for retention votes, their selection has been changed to direct appointment by the Governor with Senate confirmation. Similarly, based on votes in local referendums, Judges of the district court are selected in either by a retention vote or by partisan ballot. In 17 judicial districts, voters have approved nonpartisan merit selection for judges. In the other 14, judges run for office on a partisan ballot. Judges serve four-year terms. In merit selection districts, when there is a vacancy in a district judgeship, a judicial nominating commission interviews candidates and recommends two or three candidates to the governor and the governor appoints one to fill the vacancy. When there is a vacancy in a district magistrate judgeship, the district judicial nominating commission selects a candidate to fill the vacancy. Judicial nominating commissions are made up of lawyers and nonlawyers who live in the Another outreach to educate and inform Kansans district. Judges in partisan election districts run for office as about the job of their appellate Justices and Judges was the other public officials, such as sheriffs and county comissioners. establishment of the Kansas Judicial Evaluation Commission, Throughout the years, no Justice of the Supreme Court or which has surveyed court users to help measure the job being Judge of the Court of Appeals has not been retained, and only done by members of both appellate courts. Initially funded by one district judge has not been retained. Although the Justices the Legislature, the Commission was disbanded with the end and Judges retained in their jobs have performed without sig- of legislative funding. However, a new volunteer group called nificant controversy, the common question by voters is who the Kansas Judicial Evaluation Committee, was formed and has are these judges and on what basis should they cast their bal- prepared exhaustive reports ahead of the 2014 election and lot? the coming November 8th election. The results of this year’s Among responses to the question, the Court set up a website surveys are available at the Committee’s website, www.kansasin the 1990s soon after the creation of the World Wide Web judgereview.org. so that citizens, including voters, could better understand the courts and the members of the two appellate courts in parInfographic: Ice, R. Alton. (2004, January). The Triple Switch: ticular. The website, www.kscourts.org, includes photos and How the Missouri Plan Came to Kansas. Journal of the Kansas biographies of all members of both the Supreme Court and the Bar Association, 73(1), 28-37. Court of Appeals, as well as links to each decision the Justices www.ksbar.org/lawwise

OCTOBER 2016 | LAW WISE 3

Justice Fred Hall’s Oath of Office

Governor Fred Hall’s Resignation as Governor

Kansas Supreme Court Seated (l-r): Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier. Standing (l-r): Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. On the November 8 ballot: Chief Justice Nuss, and Justices Luckert, Beier, Biles, Stegall.

“This information will be useful to voters in the upcoming judicial retention elections on November 8th, according to Gloria Farha Flentje, Wichita, Committee Chair. “Our democracy works best when voters can make informed decisions,” Flentje said. “These evaluations are an important tool for Kansans to use when weighing the retention of our justices and judges. Without such a review, voters have little or no information on which to cast an informed ballot.” The Committee’s report was based on an independent survey that was sent to all licensed attorneys, law professors, and judges in Kansas – more than 11,000 people. To ensure that the results were meaningful, the Committee asked that individuals only evaluate those justices or judges they have appeared before or worked with previously. “At more than 1,200 responses, the survey provides significant and meaningful information about the quality of judicial performance. Most Kansas attorneys and judges do not routinely interact with the appellate courts, but those who do know the work, writings, and demeanor of the justices and judges well, “ Flentje said. The majority of those responding to the survey ‘strongly’ or ‘somewhat’ recommended the retention of all five Supreme Court Justices and all six Court of Appeals Judges in November. n

Kansas Court of Appeals Front Row (l-r): Hon. G. Joseph Pierron, Jr., Hon. Thomas E. Malone, Chief Judge; Hon. Henry W. Green, Jr. Middle Row (l-r): Hon. Michael B. Buser, Hon. Stephen D. Hill, Hon. Patrick D. McAnany, Hon. Steve Leben Back Row (l-r); Hon. Kim R. Schroeder, Hon. David E. Bruns, Hon. G. Gordon Atcheson, Hon. Melissa Taylor Standridge, Hon. Karen Arnold-Burger, Hon. Anthony J. Powell and Hon. Kathryn A. Gardner. On the November 8 ballot: Judges Leben, Pierron, Bruns, Atcheson, Arnold-Burger, and Gardner.

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Kids Voting Kansas Grows to 150,000 Students Voting in Mock Elections

lection years, particularly presidential election years, always provide an excellent opportunity to teach students throughout their school years about the importance of voting and citizen participation in our democratic system of government. In 1992, Kansas K-12 teachers got a huge boost in teaching about voting and elections when our state joined Kids Voting USA, the national kids voting program. Since that early stage, the number of students participating in mock general elections has grown to 150,000 students as of the 2014 election. A large measure of that participation can be attributed directly to the Kansas Press Assn., (KPA) which has operated Kids Voting Kansas, the state affiliate of the national program, since 2002, under the leadership of Emily Bradshaw, the KPA’s Member Services Director. Bradshaw, wearing her hat as Executive Director of Kids Voting Kansas, said the program is “a nonprofit, nonpartisan organization that believes that if we can teach kids about the importance of voting and being a responsible citizen at an early age, it will translate into a habit of voting and civic engagement long after they leave the classroom.” She said, “Kids learn about the candidates, the process and the issues using lessons that are aligned with the state standards for social studies. The great thing about this is that teachers are already teaching these concepts - we just provide a tailored approach to teaching about an election,” Bradshaw said. “In the lessons, the teacher is really just the facilitator of the discussions. The kids are responsible for researching about the candidates, the process and the issues in an age appropriate way. The students also learn that voting is only one way to be a responsible and engaged citizen, and that being engaged in your community every single day in another.”

Some students have used electronic voting machines in the Kids Voting Kansas elections.

“The Kansas Press Association believes in Kids Voting Kansas. Active, engaged citizens read the newspaper more than any other group of people. We have an interest in keeping citizens engaged and reading the newspaper. Supporting Kids Voting Kansas is one way we do it.” The Kansas Kids Voting Kansas is supported in part through a grant from Cox Communications. n

More than 150,000 students across Kansas have received classroom presentations on the importance of voting as part of the Kids Voting Kansas program.

Some students voted in mock elections using paper ballots.

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OCTOBER 2016 | LAW WISE 5

New Kansas Courts Educational Website Unveiled

he Kansas Bar Foundation has set up a new educational website regarding the Kansas courts. Visitors to the site at www.ourkansascourts.org can find information about the history of the court system, how the court system works, how judges are selected, and even has the results of the 2016 judicial evaluation. Todd N Thompson, Lawrence, President of the Kansas Bar Foundation, said in announcing the website in the September KBA Journal, that at this point, “the Foundation has just dipped its toes in the water.” He said the Foundation intends to “maintain this site for years to come, making ongoing enhancements. The goal is to provide information about the court system to all citizens, and over time to make the website especially helpful to schools for use in civics instruction.” Besides providing specific information about Kansas courts, the website provides a list of links to a variety of judicial and

law-related websites, including the State Constitution and statutes relating to the courts and judicial administration. n

Survey Shows Small Percentage of Americans Think They Know A Lot About Country’s Founding Documents, But Support Their Basic Ideas

he Center for Civic Education, Calabasas CA, has released the results of a survey that found that only 14 percent of Americans think they know a lot about the Declaration of Independence and the U.S. Constitution. The findings are based on an online survey in which 1,631 eligible voters responded during a week-long poll conducted in August. The survey indicated that although Americans might not be well-informed about these documents, there is widespread agreement on many of the basic ideas they contain that transcends party affiliation, political ideology and demographics. Survey items include basic ideas in the documents without identifying their sources. Key findings from the survey are: 99 Only 14 percent of Americans think they know a lot about the Declaration of Independence and the Constitution, and 22 percent indicate that they know very little or nothing about them. Furthermore, 64 percent say they know some things about these documents. Overall, 86 percent of respondents are aware that they are not wellinformed regarding the foundational documents. 99 Although 86 percent of respondents are not well-informed about these documents, the vast majority support the basic ideas and goals of American government in the Declaration of Independence. For example, a large majority (92 percent) believe it is a responsibility of government to ensure political equality and 86 percent believe it is a responsibility of government to further the right to the pursuit of happiness by providing equal educational opportunities for all students. 99 Large majorities of Americans support the establishment of justice (78 percent) and promotion of the general welfare (75 percent), which are among the six purposes of

99 99

government set forth in the Preamble to the Constitution, even when party affiliation, political ideology and demographics are taken into account. More than 80 percent of Americans support elements of the Constitution and its amendments that protect the rights to freedom of belief and expression; the protections of due process of law for the rights to life, liberty and property; and political equality. Significant majorities of Americans think that government is doing a good job protecting such rights as freedom of belief and expression. A majority of Americans think that the benefits and burdens of society are not distributed fairly (60 percent). This included such benefits as employment opportunities (53 percent), educational opportunities (53 percent) and income (68 percent) and such burdens as taxes (65 percent). A majority of respondents (78 percent) think a main purpose of government is to promote the welfare of all of the people. However, only 30 percent think that government is doing a good job of promoting the general welfare. Republicans (35 percent) are more inclined than Democrats (29 percent) and Independents (26 percent) to feel that the government adequately promotes the general welfare. Only 31 percent of respondents feel that the government is transparent about how it is carrying out its responsibilities. Democrats (36 percent) are more likely to feel the public can see how the government is carrying out its responsibilities than Republicans (31 percent) and Independents (24 percent).

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6 LAW WISE | OCTOBER 2016 99 C lose to half of all respondents think that Americans are not treated equally under the law today. Republicans (46 percent) are significantly more likely to think that people are treated equally under law than Democrats or supporters of third-party presidential candidates. 99 Regarding the use of fair procedures by governmental institutions, respondents rated the courts at the national (68 percent) and state (54 percent) levels as most fair and legislatures at both levels as the least fair (41 percent). The gap between opinions of national and state governments was not large. Charles Quigley, executive director of the Center for Civic Education, said, “The good news is that the social contract is largely intact as reflected by substantial agreement among the people about the central purposes government should serve despite what appears in daily media reports to be a high level of polarization and unwillingness of opposing parties to enter into civil dialogue, negotiation and compromise. “A large majority of people appear to agree not only upon

the purposes for which We the People ordained and established the American government, but also upon what they see as many specific manifestations of those purposes. Hopefully, such agreement reflects a potential for reaching common ground upon which the country can move forward. An openness to entering into a discussion of the most central purposes of government and the means of attaining them is revealed by the finding that 80 percent of respondents thought it would be better if the American people were more united on these topics, while only 6 percent disagreed. “It is encouraging to note that the survey revealed that the greater respondents’ knowledge of the Constitution, the greater the acceptance of its basic ideas. This clearly points to the need to implement effective programs in schools and universities as well as programs for adults that educate people about the principles and values embedded in our founding documents,” Quigley said. Further information and survey methodology may be found at: http://bit.ly/2evFRBQ n

October Buzz

@ The Law-Related Collection, Emporia State University, Teachers College Resource Center

e are well into the school year, and have already experienced a well-planned Constitution Day here at Emporia State University. We had two stations here in the Resource Center, so we had the opportunity to be close to the action! Your Teachers College Resource Center/ Instructional Materials Center located on the second floor of Visser Hall on the campus of Emporia State University, has several resources that fit the focus of this month’s Law Wise. The Kansas Bar Association generously donated toward the purchase of the following DVD materials which are currently ready for check-out here at the Center: • “The History of the Supreme Court”, 36 lectures of 30 min. each, DVD set and Book, 5th grade and up • “Supreme Court Decisions that Changed the Nation, Marbury v. Madison”, DVD, grades 5-12 • “The Supreme Court”, a 4 DVD set that explores the

history, impact and drama of America’s Highest Court, appx 60 min. each, grades 5+ Any of these resources and more are available at the Resource Center. To search online, go to emporiastate.worldcat.org and choose “Resource Center” to see the full array of materials and resources. If you plan to be in our area, stop by, and we would be proud to give you a guided tour of the Center. You may also call (620) 341-5292 to check out resources during our hours, 9-6, Monday through Thursday, and 9-5 on Friday. We are also able to mail out items with no charge to patrons, thanks to the further generosity of the Kansas Bar Association.n Janice Romeise (620) 341-5292 emporiastate.worldcat.org jromeise@emporia.eduv Corky the Hornet

Te r r i f i c Te c h n o l o g y Just about everything you want to know about the Kansas courts may be found at a new educational website launched this summer by the Kansas Bar Foundation, including such things as the history of the court system, how judges are selected, how the courts operate, and the results of this year’s retention election evaluation surveys of members of the Court of Appeals and Supreme Court. Take a look at: http://www.ourkansascourts.org/ Voters wishing to know more about the appellate courts, including photos and biographies of all members of both the Supreme Court and the Court of Appeals, as well as links to each decision the Justices and Judges have written or dissented in since the judiciary website was created in the 1990s, can be found at: www.kscourts.org.

for

Te a c h e r s

Details about the Kansas Kids Voting Kansas program, an affiliate of the Kids Voting USA program, including lesson plans, how to obtain and submit ballots, and other information about the program may be found at https://www.kidsvotingusa.org/ affiliates-near-you/17-kansas/46-kids-voting-kansas. Only 14 percent of Americans think they know a lot about the Declaration of Independence and the U.S. Constitution, so says an online survey in which 1,631 eligible voters responded during a week-long poll conducted August 8-15, 2016. For a summary of the results and methodology, go to: http://www.civiced.org/images/stories/PDFs/ConstitutionDaySurvey_Summary.pdf

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OCTOBER 2016 | LAW WISE 7

6– 8 THE RIGHT TO VOTE Suffrage Today

VOTING BARRIERS (45 minutes)

OBJECTIVE Students consider the barriers to voting today, including their causes and the impact they have. MATERIALS No materials are necessary for this activity. GET READY Remind your students that a democracy is a form of government in which policy is decided by the majority of the citizens’ votes. Break your students up into five evenly sized groups. (There will be one group for each of five voting barriers the students list.) INSTRUCTIONS Tell your students that they are going to explore the reasons why some people do not vote. Have your students brainstorm five barriers (one for each group) that prevent adults from registering and voting, such as: Polling hours and the fact that elections are held on a work day. The fact that you need to vote in the precinct where you lived at the time of registration. The inconvenience of registering and the need to be registered a certain length of time before an election. Being a convicted felon, a non-citizen, or merely uninformed.

Assign each group a barrier. Have each group identify the causes and effects of their barrier and state their opinion on whether or not the barrier is justified. In class, the same or following day, have each of the five groups present their ideas and opinions to the class. When each group presents, make sure the rest of the class is brainstorming a list of questions to ask the presenters. Allow the class to ask questions of each group after they present. End the activity with a class discussion of voting barriers using the discussion questions. DISCUSSION QUESTIONS What were some of the causes of the voting barriers we identified? What were some of the effects of the voting barriers we identified? In your opinion, do some of these voting barriers need to exist? Why or why not? In your opinion, are some of the voting barriers not justified? Why or why not?

Grades 6-8 THE RIGHT TO VOTE

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9‐12

Civic Engagement/Service Learning

Working Together  Working Together

CREATIVE EXPRESSIONS (Time varies)

OBJECTIVE Students create an artistic display or a public performance to educate the school community about different perspectives on a school issue. MATERIALS Varies depending on the artistic display/ performance GET READY ✔ Depending on the activity, involve the drama and/or art department. INSTRUCTIONS ✔ As a class, decide which school issue to focus on for this activity. ✔ Have students research the issue using a variety of resources and personal contacts. Make sure that all perspectives on the issue are represented in students’ findings. ✔ Determine the purpose and message of this activity. Do students want to raise awareness, educate others about diverse views on the issues, promote various solutions to a problem? ✔ Decide as a class whether to create one type of display/performance or to have small groups work on different ways of educating the school community about the issue. If the former, have the students use voting, along with a discussion of the pros and cons of each possible activity, to make their decision. ✔ Possibilities for artistic displays and performances include the following: ✔ Visual arts – drawings, paintings, sculpture, collages, quilts, murals etc.

✔

Music – composing and/or performing songs about the issue ✔ Theater – street theater, plays, pantomimes, puppet shows, musicals, readers’ theater, rap ✔ Dance – ballet, jazz, modern, tap, with or without narration or music ✔ Technology – photos, slide show, videos, interactive computer games ✔ As a class, choose a suitable date, time, and location for the event. If students choose only a visual display, seek a location that will feature the display for a week or longer. If appropriate, publicize the event so that parents and community members can attend. In addition, students could form committees to obtain needed props for performances. ✔ Have a short survey form for each person who views the event to complete. Include on the form name, age, your thoughts on this issue, and feedback on the event, including if or how the event influenced your thinking about the issue. ✔ Back in the classroom, have students reflect on the event and read the feedback they received in the survey forms. DISCUSSION QUESTIONS ★ How did most of the people attending feel about the issue? ★ Did the event have any impact on their thinking? ★ What was the most difficult aspect of this project? ★ If you could do this project over, what would you have done differently? ★ What were some positive things you learned?

6‐8     www.ksbar.org/lawwise

Civic Engagement/Service Learning

OCTOBER 2016 | LAW WISE 9

K– 2 ELECTIONS AND VOTING I Study the Candidates and Issues

ELECTION BULLETIN BOARD (5 minutes a day for two weeks)

OBJECTIVE Students share election-oriented information they gather from the media by constructing a bulletin board of articles and pictures. MATERIALS Colored pencils and crayons; Election Bulletin Board handout GET READY Gather colored pencils and crayons. Prepare a bulletin board in the classroom that can be used for election information. Prepare a note on the back of the Election Bulletin Board handout to go home with the children that explains the assignment: With parents or guardians, each student will look for one article or picture about the election, and attach it to the paper. (Students may alternatively draw a picture about the election.) Sample note to families: Our class is making a special Kids Voting bulletin board and each student will help by attaching an article about the election to this paper. Please help your child to find an article or picture by the end of the week. If you cannot find one together, the student can draw a picture about the election instead. Duplicate one handout for each student, with the picture of people talking on one side and the note to families on the other.

INSTRUCTIONS After you pass out the handout, ask the students to write their names above the caption bubble. Look at the picture together. Say, People are talking to each other in this picture. Who are the people talking? (“a lady who is cleaning her house,” “an old man,” etc.) Give your students some time to color in the people. Say, Have you been hearing people talk about the election at home or on television? One of the most important things people can say about the election is to remind each other: “Vote!” Let’s write that word in our bubble so it looks like everyone is saying it. Write V-O-T-E on the board for your students to copy. Explain that the students can post their papers on the Kids Voting bulletin board when there is a picture/article about the election attached to it. Tell the students that the letter on the back of the handout is asking their families to help them find or draw a picture. DISCUSSION QUESTIONS Where will you look for a picture about the election? Who will help you to find one? If you can’t find a picture, what kind of picture could you draw? (A ballot, a voter = person holding a ballot, a candidate = person running or office, etc.)

Grades K-2 ELECTIONS AND VOTING

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Can You Win the White House?

Running for the presidency isn’t easy, and it’s challenging to teach. Win the White House teaches students in grades 4-12 about the challenges of running for office by empowering them to create and manage their own presidential campaigns. Visit http://www.icivics.org

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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) 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 ronkeefover@gmail.com; or Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.