by Denis Boyles
Locking the courthouse door may seem like a lousy way to insure fair justice for all, but holding secret hearings on one of the state's most controversial issues is exactly what the Kansas Supreme Court is doing.
Most of us don't trust courts that operate in the dark. Americans, observed Justice Hugo Black 60 years ago, have a "historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public."
Here's a short list of places where secret court proceedings are not unknown:
- North Korea
- Iran
- China
- Cuba
- Syria
- Zimbabwe
- Kansas
All those secretive Syrians and enigmatic North Koreans probably would beg to differ, but, to paraphrase everybody's favorite Sunflower cliché, "what's up with Kansas?" How did it hop onto that short list of kangaroo judiciaries?
Back in June 2007, Planned Parenthood
of Kansas and Mid-Missouri filed charges in the Kansas Supreme Court
against former Attorney General and Johnson County District Attorney
Phill Kline, all part of the ongoing battle by abortion clinics to
prevent government enforcement of state laws regarding late-term
abortions and child molestation.
Peter Brownlie, Planned Parenthood's CEO, confirmed the filing and
that's the last we've heard, because Planned Parenthood requested a
secret hearing, and the Kansas Supreme Court gave them one. That meant,
according to David Klepper, blogging at the Kansas City Star, "the
public couldn't see what the court case involved, couldn't read the
filings, couldn't sit in on what surely must have been a fascinating
hearing before the Supreme Court."
It's risky business when courts
invite ridicule, but at the Kansas Supreme Court, the invitation's a
standing one. Because of the eccentricities of state law, none of the
supreme court's justices have ever been vetted by elected
representatives. As many critics, including KU law professor Stephen J. Ware,
have complained, "..there's no confirmation process at all" the
governor appoints them and there they sit, sometimes dozing through
cases that often seem to have already been decided by some backroom
handshake.
Because Kansas has never had a conservative governor, there's not even
much political diversity on the court. All the members are in general
agreement on the way things ought to be in Kansas in fact, in 2005, they
even started passing legislation of their own, deciding to the penny
how much the state should spend on educating kids. Most of them have, at
one time or other, made clear their impatience with wing-nuts and others who disagree with them.
You'd think conservatives would be pleased with a court that has moved so far back in time that its hearings resemble the Star Chamber trials that ended the reign and the life of Britain's Charles the First back in the 1600s.
But no. this afternoon, Rep. Lance Kinzer's House Judiciary Committee will hold hearings "public's invited, of course"on HB 2825, a crowbar bill that would pry open courtroom doors across the state by limiting the ability of judges to conduct secret trials and hearings or have their pleadings sealed.
The Planned Parenthood v Kline case triggered Kinzer's concern, but, as he wrote in an email, the bill is "more of an open [government] issue than a pro-life issue." In a statement released yesterday, Kinzer wrote, "The public has a fundamental interest in all cases that are submitted to a court for resolution. It is an unfortunate reality today that many of the most important public policy issues facing our State are being decided by courts. As such it is more important than ever that our judicial process is open and accessible."
An open court presided over by justices who have been through a
public confirmation process? There's a wild and crazy idea, one that's
never been tried in Teheran or in Topeka.
Denis Boyles, comments on the media and the Midwest for National Review Online, also writes the Monday, Monday column for Kansas Liberty. He's the author of Superior, Nebraska, an oddly-titled book mostly about Kansas.