TOPEKA — When Vinny DiGiovanni speaks of losing his brother-in-law Brad Heyka to a murderous rampage by the Carr brothers more than a decade ago, the pain is clear.
DiGiovanni wants four of the five Kansas Supreme Court justices, up for retention in November, out of office. He said the court’s handling of Jonathan and Reginald Carr’s cases caused fresh pain when the justices vacated their death sentences in 2014 only for the U.S. Supreme Court to overturn the decision early this year.
“We were devastated knowing not only did the Kansas Supreme Court feel it was necessary to retry the Carr brothers again, but individually, meaning we would possibly have to relive it again, twice,” DiGiovanni said.
The group Kansans for Justice is helping to amplify and spread DiGiovanni’s plea to voters to not retain the justices. But while his message is clear, the resources powering it aren’t.
The judicial retention races in Kansas exist in a dark zone that normal campaign finance law doesn’t reach. Donors to groups involved in the retention races, including those with links to the justices themselves, are mostly kept secret.
The opacity cuts both ways. Kansans for Fair Courts, one of the primary groups fighting to retain the justices, also has no obligation to name its donors.
As Kansas moves into the general election season, the lack of disclosure makes determining who holds the upper hand difficult. While Kansans for Justice held events last week to kick off its campaign, without reports from these groups on spending and donations, it is nearly impossible to know who is spending or fundraising the most.
History and polling suggest the odds favor the justices. But opponents of retention made gains during the last election in 2014, cutting down the margins of victory for justices on the ballot.
Some conservative lawmakers also have pushed unsuccessfully to change the way the justices are selected. They want to move Kansas away from using a nominating commission, which supplies the governor with potential justices to pick from, and use the federal model, where the governor nominates a justice to be confirmed by the Senate.
“We need to remember over two years ago the governor embarked on a program with the help of his friends in the Legislature to pack the Supreme Court,” said Rep. John Carmichael, D-Wichita.
The justices up for retention — Lawton Nuss, Marla Luckert, Carol Beier, Dan Biles and Caleb Stegall — are heavily restricted in how directly they can campaign. They are reticent to say anything that creates the perception of bias.
In addition to Kansans for Fair Courts, a number of companies also have been incorporated with the purpose of supporting the justices. Most of the justices appear to have a company associated with them. Beier and Stegall incorporated their own companies.
Since the retention elections aren’t covered by state campaign finance law, the companies — like groups such as Kansans for Fair Courts and Kansans for Justice — have no requirement to disclose donors or spending.
In an interview in May, Luckert stressed she didn’t incorporate the company that bears her name and isn’t part of its structure. Disclosure could lead to creating the appearance of conflict and taint the judicial process, she argued.
“Generally, I am a person that believes in transparent government, but the rub of that with the judge is that if you handed $50 to my campaign and the next day you were in my courtroom, that could create a conflict or at least it creates the appearance of a conflict,” Luckert said.
Kansans for Fair Courts is an initiative of the Kansas Values Institute and both KVI and Kansans for Justice are structured as 501(c)4 groups. Under the federal tax code, they’re classified as social welfare organizations.
Groups labeled 501(c)4 don’t have to disclose donations under $5,000. Larger donations must be disclosed on federal forms, but aren’t released to the public.
Other groups active in elections that fall under campaign finance law also plan to involve themselves in the retention races. The anti-abortion organization Kansans for Life waged a “Fire Beier” campaign during a previous election, and the group’s leader appeared to suggest it once again will seek to oust some of the justices this fall.
“Judicial selection and retention are core pro-life issues. Judges who manipulate Kansas law and the state constitution to undermine the will of the people on protecting innocent human life do not deserve to be retained,” Kansans for Life director Mary Kay Culp said in a statement. “Kansans for Life will be making that case to voters, as we do every time judges are on the ballot.”
Less certain is whether Gov. Sam Brownback will inject himself into the retention races. Brownback supported the ouster of justices in 2014 and also attempted to tie his Democratic opponent, Paul Davis, to the justices.
Brownback aired a television ad accusing Justice Carol Beier of hosting a fundraiser for Davis at her home. In fact, the event was hosted by Beier’s husband and Beier didn’t attend the event, nor did Davis or his running mate Jill Docking.
The administration declined to reveal how involved the governor plans to make himself in this year’s retention races.
“The governor has not been engaged in judicial retention elections to this point,” Brownback spokeswoman Eileen Hawley said. “We have heard from Kansans who are upset with the state Supreme Court ruling on the Carr Brothers and who feel some of the justices do not reflect their values or beliefs.”
Polling suggests popularity
Polling shows Kansans hold the Supreme Court in high regard — at least when compared to other branches of government. Survey results from the Fort Hays State University Docking Institute of Public Affairs indicate the Supreme Court is much more popular than the Legislature or governor.
According to a February poll from the institute, 45 percent of Kansans were either very satisfied or somewhat satisfied with the court. Thirty-three percent said they were neutral, while 21 percent said they were somewhat or very dissatisfied.
For comparison, the poll found 61 percent of voters in some way dissatisfied with the Legislature. Brownback’s figures were worse.
A survey of judges and lawyers last week performed by the Kansas Judicial Evaluation Committee found broad support for retention of four of the five justices, as well as modest support for Stegall. Approximately two-thirds of judges and lawyers “strongly” recommend retention of the four justices, the survey found.
Thirty-one percent of lawyers feel the same about Stegall, while only 7 percent of judges recommend strongly that Stegall be retained.
Some lawmakers who were hostile to the justices were ousted themselves, voted out of office in Republican primary contests earlier this month. Sen. Forrest Knox, R-Altoona, lost his primary bid. He had promoted legislation to ease the way for impeachments of the justices.
“Even before the primary results had come out, we believe that a majority of Kansans like the court and are happy with the job the court is doing,” said Joyce Morrison, a spokeswoman for Kansans for Fair Courts.
More than 50 bills have been introduced since 2013 that in some way sought to penalize the courts or strip their funds, she said.
“It’s clear Kansas courts are under attack by the governor, the conservative faction in the legislature and even the state Republican Party,” Morrison said.