Impeachment of Kansas judges and other statewide elected officials is emerging as an election-year issue for candidates seeking office this cycle.
Kansans for Life’s political action committee is quizzing various state candidates about whether they would support legislation that would redefine what an impeachable offense is for a judge or one of the state’s four constitutional officers.
The KFL PAC is asking candidates whether they would back legislation that would define specific actions for impeachment, including “attempting to usurp the power of another branch of government.”
Currently, Supreme Court justices and the state’s constitutional officers can be removed from office if they’re impeached by the Legislature after being convicted of treason, bribery or other high crimes and misdemeanors.
Other judges are subject to discipline, suspension and removal for cause by the Supreme Court after a hearing.
In the past, lawmakers have tried to more specifically define what merits impeachment but have failed to pass legislation addressing the issue.
KFL declined to comment for this story, saying it historically has not answered questions about its candidate questionnaires.
“As always, we monitor a wide variety of issues that are important to our members,” spokeswoman Danielle Underwood said.
While it is a candidate survey, sometimes questionnaires can foreshadow what might unfold in any upcoming legislative session.
Back in 2018, KFL asked candidates whether they would support a bill requiring women to be told that an abortion pill could be reversed.
Within a year, a bill was introduced in the Legislature.
“Any time these things pop up with KFL specifically asking questions about an issue, it has to be some cause for concern,” said Democratic state Sen. Pat Pettey of Kansas City, who voted against an effort to more narrowly define what constitutes an impeachment.
The issue is not new to the Kansas Legislature, which made national news in 2016 when the Senate passed a bill explicitly defining impeachment for Supreme Court justices and constitutional officers such as governor, attorney general and secretary of state.
The constitution stipulates that the House must impeach an office holder for “high crimes and misdemeanors” while two-thirds of the Senate must vote to convict.
The bill would have allowed Supreme Court justices to be impeached for “attempting to subvert fundamental laws and introduce arbitrary power” or “attempting to usurp the power of the legislative or executive branch of government.”
It also would have allowed justices to be impeached for being discourteous toward litigants, jurors, witnesses and lawyers.
Supporters said the current law was too vague and allowed the courts to go unchecked.
“A phrase that has lost meaning in the 21st century – high crimes and misdemeanors – is defined in SB 439 using the meaning that the founders of our United States and Kansas Constitutions understood,” former state Sen. Greg Smith said at the time.
“High crimes are those breaches of duty committed by public officials because they violate the fiduciary responsibility of their high office to the people of the state of Kansas – they are not necessarily criminal acts, nor do they have to be,” he said on the Senate floor.
The bill came at a time when conservative lawmakers were frustrated with a Supreme Court that they viewed as overly aggressive.
They were angry with the court ordering lawmakers to add more money for schools – they believed that the Legislature had the power of the purse – as well as overturning a high-profile death penalty case.
Others were angry over a 2014 backyard barbecue supporting Democratic gubernatorial candidate Paul Davis that was held at the home of a now-retired justice but was organized by her husband. The justice did not attend the barbecue.
More recently, conservatives have been frustrated with a 2019 state Supreme Court ruling that found that the right to an abortion is protected by the state constitution.
Former Republican state Sen. Mitch Holmes of St. John was a leading advocate for the 2016 bill, which the Senate passed on a 21-19 vote before it died in the House.
“This is not about a single issue or a single action of any court,” Holmes said in written testimony in support of the bill.
“It is about a trend that’s been going on for decades,” Holmes said.
“Over time, the checks on the courts have fallen into disuse and the courts have responded by aggressively expanding their powers – especially powers that are reserved for the people’s elected officials,” he said.
At that time, critics said Republicans were trying to impose their will on the judicial branch.
“Allowing impeachment for ideological or political differences of opinion would completely undermine the independence of courts and the public’s confidence in their rulings,” Senate Minority Leader Anthony Hensley said in voting against the bill
“The purpose of (the bill) is to place inappropriate pressure on the judicial branch to make decisions according to legislative dictates,” Hensley said on the Senate floor.
The Kansas Bar Association opposed the bill, fearing that it would allow “the unfettered attack of justices who engage in their constitutional duty to decide cases and appropriates the Supreme Court’s most important role of being the court of last resort.”
Impeachment proceedings in Kansas have been amended just once – in 1974, according to an article authored by attorney James Hampton that appeared in the University of Kansas Law Journal.
Kansas voters approved an amendment changing the number of senators required to be present during an impeachment hearing and the offenses for which an office holder could be impeached, Hampton wrote.
Before the amendment, an office holder could be impeached for a misdemeanor, he wrote.
After the amendment, an officer could be impeached for “treason, bribery, or other high crimes and misdemeanors” – the language that’s been in question more recently.
The amendment passed with 68% of the vote, Hampton reported.
However, Hampton noted that the amendment did not say whether the impeachable offense had to be committed during the office holder’s term, nor did it define “high crimes or misdemeanors” – leading to the contemporary debate.
The Republican candidates running for attorney general – Kellie Warren, Kris Kobach and Tony Mattivi – were each asked the question about articles of impeachment.
“The Kansas Supreme Court has overstepped its boundaries multiple times, not just in the case of striking down pro-life laws, but also in school finance but in other areas where it’s gone beyond interpreting the law,” Kobach said.
A law setting out certain elements for impeachment beyond the general requirement of “high crimes and misdemeanors” would be warranted, he said.
“If you have clear standards, it gives legislators a greater sense of certainty as to whether a justice has crossed the line,” Kobach said.
“I think that would be helpful,” he said. “It would make the possibility of impeachment an effective check on the abuse of judicial power.”
Warren, chair of the Senate Judiciary Committee, said she would support the bill.
“Sen. Warren supports leaving all options on the table to make sure that Kansas judges stay within the boundaries of their role and don’t abuse their power,” the senator’s consultant, Jared Suhn, said in a statement.
“Unelected judges should not be allowed to enact their values on Kansans without accountability,” he said.
A spokesman for Mattivi said the candidate would support a bill but refused to amplify on his position.
Democratic attorney general candidate Chris Mann expressed concerns about exposing judges to the political wishes of the Legislature.
“As a former police officer and prosecutor, Chris Mann believes in the three separate and distinct branches of government,” Mann’s campaign manager, Aron Johnson, said.
“There is a process in the Kansas Constitution for removal of judges and justices. Kansans are best served by an independent judiciary that is not subject to the whims of politicians,” Johnson said in a statement.
Republican state Sen. Molly Baumgardner of Louisburg sits on the Senate Judiciary Committee. She said there could be occasions where the bill would be warranted.
“There certainly are situations whereby folks that are entrusted in important roles in serving Kansas, there are certainly things they can do that may not rise to the level of a crime but are not viewed as appropriate,” she said.
Democratic state Sen Ethan Corson of Fairway also sits on the Judiciary Committee. He had a different view.
“The idea that judges should be impeached for issuing decisions that some people disagree with,” Corson said, “demonstrates a fundamental misunderstanding of the role of the judicial branch as a separate and coequal branch of government.”
