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Archive for the ‘Kansas Courts’ Category

crying-baby-say-no-to-activist-judgesKansans for Life applauds all those pro-lifers who cast votes yesterday to oust activist justices on our state Supreme Court and Court of Appeals.  Sadly, we missed the mark.

And while all the targeted activists on the highest two courts kept their jobs, they only held on by small margins. KFL executive director, Mary Kay Culp said,

“For now we can only hope the judges have learned a powerful lesson to stop ‘legislating from the bench’… especially as they face the most important abortion lawsuit in our state’s history.”

KFL’s priority message, “reject all but Stegall,” focused on retention elections for five current Supreme Court Justices. Justices stand for retention every six years and cannot remain on the bench if they fall below 50% approval. Yesterday, voters only gave 55-56% support to Justices Lawton Nuss, Marla Luckert, Dan Biles and Carol Beier.

caleb

Justice Caleb Stegall

Justice Caleb Stegall received 71% support, which was deserved. Appointed in 2014, he has not been part of any Supreme Court abortion animus, nor was he part of all the decisions that were soundly overturned by the U.S. Supreme Court.

Chief Justice Nuss– who is the only sitting Justice to have ever been admonished by the ethics oversight committee– has lost the most public support over the last twelve years. In 2004, retention figures were: Nuss 82.2%,  Luckert, 76.5% and Beier, 76.4%. Biles was not yet on the court.

In 2010, after KFL called for pro-lifers to remove activist judges under the slogan,”Fire Beier,” the approval rating of all four justices dropped to 62-63%.

In 2012, our top judges began their own public relations campaign, in which they traversed the state to “connect” with the people. Members of both the Supreme Court and the Court of Appeals have since made hundreds of town hall educational presentations. They also have been the beneficiaries of pro-retention media campaigns and at least $540,000.00 in television ads this year (see here).

Appellate Judge Kathryn Gardner

Appellate Judge Kathryn Gardner

When it comes to abortion, the recent history of the Kansas Supreme Court has not been fair and impartial.(see here) They have twice ducked ruling on the most important  abortion lawsuit in our state’s history– the ban on dismemberment-method abortions— until they could get past the Nov. 8th retention elections.  In the interim, the Court of Appeals completely botched their ruling. The Court of Appeals was hopelessly divided on whether the state may ban brutal and inhumane procedures done on fully-formed unborn children.

Our KFL judicial initiative had a modest budget without funds for television or drive-time radio. We activated the grass roots and hosted the Better Judges for Kansas website.  Included were essays (archived here) explaining abortion bias in the courts and how the court rulings are exasperatingly untethered from the state constitution.

Appellate Judge David E. Bruns

Appellate Judge David E. Bruns

Our secondary goal was ousting judges on the Court of Appeals who had indefensibly sided with abortion attorney’s invention of a state right to abortion, even broader than that of Roe v Wade.

The Court of Appeals is up for retention every  four years. The judges up for retention Nov. 8 who claim our 1859 founders wanted to protect abortion are Steve Leben, G.Joseph Pierron, Karen Arnold-Burger and G. Gordon Atcheson. These four felt the public’s disapproval when they received only 59-60% support, down from 71-74% in 2012.

The two Court of Appeals judges on Tuesday’s ballot who had properly let our Kansas Constitution be their yardstick on the abortion issue were David Bruns and Kathryn Gardner. The public gave Bruns 72% support (75% in 2012) and Gardner, 73% (first election since appointment).

Our Kansas Bill of Rights rests on “the right to life,” yet there is still much to be done to protect the unborn in Kansas. We ask all those who joined with us on the issue of judicial retention to stay engaged and be encouraged, as the truth is on the side of life!

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Kris Neuhaus

Kris Neuhaus

[UPDATE Nov. 9: Caddell lost with under 32% of the vote.] Michael Caddell, the husband of notorious abortionist, Kris (Ann Kristin) Neuhaus, is the Democratic candidate for State Representative of Dist. 47 in rural, northeast Kansas. Caddell, 61, is a “semi-retired” producer of left-wing podcasts and a “self-described hell-raiser” (according to the Lawrence Journal World).

Most pro-life Kansans know Neuhaus as the abortionist with two decades of disciplinary interactions from the State Board of Healing Arts, culminating in revocation of her medical license. The Board assessed her as incompetent, “showing no signs of remorse” and “incapable of successful rehabilitation.”

Judge Franklin Theis

District Judge Franklin Theis

Shawnee County District Judge Franklin Theis has inexcusably indulged her efforts to get the license reinstated. The second appeal from her has been dormant in his possession for 18 months.

Judge Theis is the master of ‘delay-delay-delay’ when it comes to Neuhaus –as well as to Kansas abortion litigation. He has unduly stalled, for over five years, implementation of the abortion clinic licensure law which pro-lifers had worked ten years to achieve.

Judge Franklin Theis is on the Shawnee County ballot for retention. Pro-lifers cannot support him.

UNQUALIFIED FOR PUBLIC OFFICE
Michael Caddell’s political views are further to the left than those of Bernie Sanders and in fact balks at having to don the Democrat label because he thinks it’s too conservative! Caddell had been licensed to carry a gun through 2005 and “provided security” outside various abortion clinics–mainly where his wife worked.

Salina Post, 3-5-91: Mike Caddell, editor of the Frankfort Alternative Index, has come under fire from Frankfort residents for his views

Salina Post, 3-5-91: Mike Caddell, editor of the Frankfort Alternative Index, has come under fire from Frankfort residents for his views

Caddell failed repeatedly to indoctrinate rural Kansas towns with his radical socialist manifestos. (see here and here) When living in Westmoreland, in the early 1990’s, he bought three small news weeklies and in short order the staff quit and the papers folded. Residents there, in the shadow of Ft. Riley, didn’t appreciate his anti-war diatribes and style of muckraking. In Nortonville, where he and Neuhaus now live, residents were both insulted and repulsed at his attempts at journalism. As the Lawrence Journal World reported:

Nortonville’s mayor submitted copies of Caddell’s “Flying Cock-fighter” flyer to the county attorney, registering a complaint about the obscenity. “He’s a screwball…a nut,” Mayor Herman Ackmann said of Caddell. “Why he thinks he’s a journalist, I’ll never know.”

Most certainly, District 47 constituents should reject Michael Caddell for state representative, much less any public office.

NEUHAUS SAGA REVISITED
Kris Neuhaus is the failed abortionist with two decades of disciplinary interactions from the Kansas State Board of Healing Arts. It began with the federal Drug Enforcement Agency stripping her of prescription authority in 1998, followed by patient complaints and Board interventions in which she was twice labeled a “danger to the public.”

ksbha-logoNeuhaus held on to her medical license (under conditions of Board monitoring and additional training) and eventually her sole income came from supplying George Tiller with “independent referrals” for late-term abortions. Before Tiller’s death in May of 2009, the Board had initiated revocation of the licenses of both Tiller and Neuhaus. After arduous and expensive state proceedings, Neuhaus’ license was revoked…and overturned…and revoked again– and the second appeal is not yet completed, due to Judge Theis.

QUICK FACTS ON NEUHAUS REVOCATION :

  • July 2012- The state Board revoked her Kansas medical license for “professional incompetence” and “failing to meet minimum requirements for maintaining records.”  Neuhaus appealed.
  • March 2014- Judge Theis overturned the revocation and sent the matter back to the Board for reconsideration.
  • Jan. 2015- The Board issued a second revocation against Neuhaus on the single issue of incomplete medical files for 11 teens obtaining third trimester abortions through Tiller. The legal costs owed the Board were reassessed at just under $32,000.00.say-no-judges
  • March 2015- Neuhaus appealed.
  • Nov. 2016- Judge Theis has not yet ruled on the repayment issue with further action on the stalled appeal scheduled for phone conference next week …AFTER the judge’s retention election.

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2015 Rally for Life 2015 Rally for Life urges ban on dismemberment abortion bans

Last April, Kansas became the first state to pass legislation barring the barbaric dismemberment method abortions. Now, under challenge  by pro-abortionists, that first-of-its-kind law, which is on hold, is about to be reviewed by the Kansas Supreme Court.

This ban prohibits the gruesome abortion method of tearing apart fully-formed, living babies– limb by limb– until they bleed to death.

The Unborn Child Protection from Dismemberment Abortion Act, model legislation drafted by the National Right to Life Committee, has since been enacted by Oklahoma, West Virginia, and (soon) Mississippi. This vital legislation has also been introduced in Pennsylvania, Minnesota, Idaho, Nebraska, Missouri, Louisiana, Rhode Island, and Utah.

Thus the impact of the ruling by our Supreme Court will extend beyond our state borders.

The premise of the Unborn Child Protection from Dismemberment Abortion Act comes from the U.S. Supreme Court Gonzales ruling. In that 2007 decision, the justices upheld a ban on partial-birth abortions by acknowledging that,

“the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

Abortion supporters have thus sought to find and secure in state constitutions a broader and more unassailable “right” to abortion.

pro-abortion judgesThat’s what happened in Kansas last June, when Shawnee District Court Judge Larry Hendricks blocked the ban on dismemberment abortions from going into effect.  Hendricks adopted abortion attorney arguments–literally–asserting that the Kansas state Constitution protects abortion even more fundamentally than the standard established by the 1973 Roe v. Wade decision.

The temporary injunction was obtained by the New York-based Center for Reproductive Rights on behalf of Kansas’ father-daughter abortionists at the Center for Women’s Health in suburban Kansas City.

The injunction allows three Kansas abortion businesses to continue to perform these grisly procedures — 629 last year–at a cost of up to $2,000 each.

That activist ruling by Judge Hendricks was left standing when the full Kansas Court of Appeals reviewed it and announced on January 22 that they were divided, 7-7.

However, pro-life Attorney General Derek Schmidt appealed the appellate decision to the state’s highest court. Schmidt argued that the appellate ruling does not make precedent and current abortion lawsuits remain in limbo without clear guidance. Yesterday, it was announced the appeal will be heard. (documents here) Here are the three questions that the state of Kansas has posed for the state Supreme Court to rule on:

  1. Does the Kansas Constitution create a right to abortion?
  2. If that right exists, does it clearly prevent government from regulating dismemberment abortions?
  3. Did the Court of Appeals wrongly accept the lower court’s facts and legal standard?

Our state Constitution was enacted in 1859, when abortion was illegal in Kansas and across the nation. Yet one radical judge of the Kansas Court of Appeals, G. Gordon Atcheson (writing to concur with the injunction against the dismemberment abortion ban) believes that the state Constitution is an “evolving” document with an “ever more enlightened understanding of humanity” and women’s “self-determination.”

Mary Kay Culp, KFL executive director commented, “The challenge we face is whether a majority of the Kansas Supreme Court will follow the U.S. Supreme Court’s holding that allows states to ban barbaric abortion methods, or whether it will follow Appellate Judge Atcheson’s opinion that the dismembering of unborn children comports with an ‘enlightened understanding of humanity’.”

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Ks Supreme Ct

The Kansas Supreme Court

Filed electronically after 5p.m. tonight, Monday, the Kansas Supreme Court has granted review of the appeal by the Kansas Attorney General in the matter of the Kansas Unborn Child Protection from Dismemberment Abortion Act. (documents here)

The hearing has not yet been set and both sides will file supplemental briefs to be submitted within 30 days. Here is the  summary of litigation thus far:

Pro-life Gov. Sam Brownback signed SB 95, the dismemberment method ban, on April 7, 2015 after it passed 31-9 in the Senate and 98-26 in the House. The law is not in effect.

The Overland Park Center for Women’s Health (CWH), the office of father -daughter abortion duo, Herb Hodes and Traci Nauser, filed suit against the ban in federal court and won a temporary injunction from Shawnee District Court Judge Larry Hendricks June 25, 2015.  Judge Hendricks adopted the arguments of the abortion attorneys hook, line and sinker.

Attorney General Derek Schmidt filed an appeal of that ruling, claiming that it is “a fantasy” that the Kansas state constitution of 1859 protects a right to abortion (much less one that upholds gruesome dismemberment of living, well-formed unborn children!).

The appeal was taken up by the Kansas Court of Appeals when the Kansas Supreme Court refused to intervene. On Jan. 22, 2016, the appellate court delivered a split ruling which meant the lower court temporary injunction would be upheld.

The Attorney General again filed an appeal, this time asking the Kansas Supreme Court to expeditiously review the appellate decision, asserting that

the Court of Appeals wasn’t truly split, but rather had ruled 7-6-1, finding there is no protection for abortion under the Kansas Constitution.

The Kansas Supreme Court needs to move expeditiously for several reasons, urges the A.G. filing; two other lawsuits filed by CWH (in 2011 and 2013) are lagging in state court and would be directly impacted by a decision about this so-called fundamental state right to abortion.

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Bill carrier Rep. Todd

Bill carrier
Rep. Todd

Although this proposal already passed the Senate THREE YEARS AGO, the Kansas House today could not muster the 2/3 needed (84 votes) to put HCR 5005 on the November ballot. HCR 5005 would let the public vote to change the way state Supreme Court justices are selected.

The vote attained was 68 for, 54 against (with 3 reps absent). Those voting yes are the reps who treat the pro-life cause as a priority– not a preference, or an afterthought. Kansans for Life considered this the most important pro-life vote of this legislative session.

Here are the names of state reps who supported this measure to allow Kansans to vote for a change in judicial selection, with those in bold having spoken at the podium urging passage:

Anthimides, Barker, Barton, Billinger, Boldra, Bradford, Bruchman, Campbell, B. Carpenter, W. Carpenter, Claeys, Corbet, Davis, DeGraaf, Dove, Edmonds, Esau, Estes, Garber, Goico, Gonzalez, Grosserode, Hawkins, Hedke, Hemsley, Highland, Hildabrand, Hoffman, Houser, Huebert, Hutchins, Hutton, Johnson, D.Jones, K.Jones, Kahrs, Kelley, Kleeb, Lunn, Macheers, Mason, Mast, McPherson, Merrick, O’Brien, Osterman, Pauls, Peck, Powell, Rahjes, Read, Rhoades, Rubin, Ryckman,Jr., Ryckman,Sr., Scapa, Schwab, Schwartz, Smith, Suellentrop, Sutton, Thimesch, Todd (bill carrier), Vickrey, Waymaster, Weber, Whitmer, Williams.

Speaker Merrick

Speaker Merrick

State reps Henry, Kiegerl and Seiwert were absent. Contact information for all state reps is here. Read explanations of votes here (pgs. 1991-1994).

Please thank your state reps who voted yes. Special thanks to House Speaker, Ray Merrick (R-Stillwell), for allowing this vote and staging the informational caucuses this week.

The issue is not closed. Kansas has the least transparent and least democratic process used to arrive at nominees for the state Supreme Court (see chart). Behind closed doors a commission of nine –including five lawyers voted in by lawyers– puts forth three names and the governor must choose one or else the Supreme Court Chief Justice picks one.

Our State Supreme Court is more liberal than the U.S. Supreme Court, which — with an 8-1 vote– chastised our top Court two weeks ago for its handling of a death penalty sentencing issue.

Our second highest state tribunal, the Court of Appeals, recently allowed dismemberment abortions to continue by a split decision interpreting our 1859 state Constitution to embody a right to abortion stronger than that of Roe. That’s pathetic!

All our pro-life laws are in jeopardy when the courts continue to deliver rulings that substitute abortion advocacy for strict construction analysis. Stay tuned!

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AG Derek Schmidt

AG Schmidt

On Monday, Kansas Attorney General Derek Schmidt filed an appeal with the Kansas Supreme Court, asking for an expedited ruling on the question of whether the Kansas Constitution embodies a right to abortion.

A  7-7 ruling from the Court of Appeals on Jan. 22  maintained a district court’s temporary injunction against the Kansas Unborn Child Protection from Dismemberment Act.

However, Schmidt  asserts that properly understood,  the 7-7 tie is really a 7-6-1 ruling,  thus denying any state constitutional right to abortion.

The appeal (ironically titled a “prayer” in legal jargon) argues that the heart of the Court of Appeals ruling is whether the state Bill of Rights mimics the due process protection of the federal Fourteenth Amendment that is the basis for Roe v Wade.

  • Seven appellate judges (in the dissent, penned by Chief Judge Thomas Malone) held that the state Bill of Rights does not provide “Roe” protection,
  • six judges (in the ruling written by Judge Steve Leben) said the state Bill of Rights does provide “Roe” protection by extension, and
  • one concurrence (by Judge G. Gordon Atcheson) conceded that the state Bill of Rights’ Article 1 really doesn’t match up with “Roe” but no matter because abortion is protected in a stronger way.

    Judge Atcheson

    Judge Atcheson

Judge Atcheson wrote, “Article 1 provides a constitutional protection [for abortion] that has no direct analog in the federal Constitution… [it] effectuates self-determination consistent with an evolving and ever more enlightened understanding of humanity across both race and gender.”

He also wrote, “a woman’s right of self-determination, as established in Article 1, takes precedence [over a fetus] incapable of free-will or self-determination,” and “I cannot infer a particular legislative purpose or governmental interest advanced in Senate Bill 95 [the dismemberment ban].”

Truly the abortion protection that Judge Atcheson wishes to be found in Kansas’ 1859 Bill of Rights is broader than Roe and –if agreed to by the Kansas Supreme Court—poses a threat to all existent pro-life laws in this state.

On the other hand, the six appellate judges who want a state right to be an extension of Roe implicitly would examine pro-life laws under the “undue burden” standard, which is more workable than if abortion is declared fundamentally protected and laws have to pass “strict scrutiny.”

Because the appellate court really left all Kansas courts adrift in confusion, Schmidt urges the Kansas Supreme Court to take up the issue. Until it is resolved, it will continue to be raised in existent and future lawsuits, he argued.

At issue is a compelling constitutional question of “first impression.” That is something that ultimately only the Kansas Supreme Court can resolve.

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Hon. Thomas Malone

Appellate Chief Judge Malone

On the 43rd anniversary of Roe v. Wade, Kansas pro-lifers groaned when they heard that the state Court of Appeals had tied 7-7, meaning that a lower court’s ruling would stand and, with it, a temporary injunction on our historic ban on dismemberment abortions.” An appeal is being quickly drafted by the office of Attorney General Derek Schmidt to the state Supreme Court.

The “Unborn Child Protection from Dismemberment Abortion Act” became law in Kansas in April, just days before Oklahoma enacted the law. The Act prohibits one specific method of abortion—a torturous, piece by piece, dismemberment of a living unborn child.

Shawnee District Court Judge Larry Hendricks was the first judge in the nation to review the matter. Hendricks so much loved the abortion attorneys’ arguments (inventing a previously undiscovered fundamental right to abortion in the 1859 Kansas Constitution) that he had them pen his temporary order for injunction! (Didn’t know judges could do that, did you?)

After the state appealed Hendricks’ injunction, all 14 members of the Court of Appeals heard arguments from both sides on December 9.

Attorneys for the plaintiffs (a father and daughter team of abortionists) asserted that Article 1 and 2 of the Bill of Rights of the state Constitution expressly contained a liberty right to abortion which must be interpreted the way the due process section of the Fourteenth Amendment to the U.S. Constitution was interpreted in Roe v Wade.

Seven appellate judges, in the dissent authored by Chief Judge Thomas Malone, used careful reasoning and a strict constructionist approach to opine that there is no ‘independent state-law right to abortion” and “there is nothing in the text or history of Articles 1 and 2 …to lead this court to conclude that these provisions were intended to guarantee a right to abortion.”

Chief Malone’s dissent notes that the Kansas Bill of Right predates the Fourteenth Amendment and to accept “such a broad reading” of the Bill of Rights, which “does not contain the same language” as the Fourteenth Amendment and “was ratified under different historical circumstances, would go well beyond the apparent intent of its framers.”

As the Attorney General defense team has consistently argued, abortion in Kansas was outlawed– even before the state bill of rights was ratified— and broadly criminalized thereafter except to prevent the death of the mother in an emergency.

Malone’s dissent highlights the essential tension, “[A]bortion places the pregnant women’s liberty interest directly at odd with the unborn child’s right to life. The balancing of these interests is a matter of public policy” which is under “the charge of the state legislature, not the court.” Moreover,

“The proper question to ask and answer is what rights the makers and adopters of the instrument intended to protect…not what rights today’s judges would like to see in our state constitution.”

Appellate Judge Leben

Judge Leben

The other half of the Court of Appeals does not subscribe to judicial restraint and agrees with the Hendricks ruling. Six of them united behind an opinion written by Judge Steve Leben. They say that Articles 1 & 2 of the Bill of Rights are sufficiently equivalent to the Due Process Clause of the Fourteenth Amendment.

Atcheson

Judge Atcheson

JUDICIAL ACTIVISM
In a separate concurrence affirming the Hendricks ruling, Judge G. Gordon Atcheson distinguishes his support from the Leben opinion. He finds that Article 1 and 2 provide even greater protection for abortion than the Fourteenth Amendment. And this is a case study in rhetoric over legal analysis.

For example, Judge Atcheson refers to the dismemberment of an unborn child as if it is merely “unaesthetic,” while (incorrectly) asserting that the state cannot prohibit a barbaric abortion procedure. He wrote, “The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people.

He ignores the example that horrific partial-birth abortions are illegal, as upheld in the 2007 Gonzales ruling of the U.S. Supreme Court, but that may be because he disdains it so much: “Women have a right protected in Article 1 to exercise reproductive freedom as an essential component of their self-determination. To suggest otherwise simply inflates that women are flighty creatures in constant need of guidance and protection to be supplied either by menfolk or, in this case, a meddlesome government … That sort of paternalistic claptrap animates the majority opinion in Gonzales v. Carhart.”

Another of the examples of Judge Atcheson’s pro-abortion feminism: “Although the general societal and legal acceptance of gender equality hasn’t yet reached every quarter, Article 1 doesn’t bend to the obdurate views of those who would cling to the days when white men were the acknowledged masters of the realm.”

The caliber of Judge Atcheson’s writing and the extreme reach taken in the Judge Leben group opinion are distressing. The state of Kansas defense team has consistently maintained that the notion that there exists a state constitutional right to abortion “is a fantasy.” Half of the appellate court had the wisdom to recognize it.

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