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Recusal happens in appeals courts fairly often, chief justices have power in appointments, KU law professor says

Nick Gosnell
Friday, October 19, 2018

Often, judges from other judicial districts across the state serve as one of the panel for the Kansas Supreme Court on individual cases. The highest profile of these recently, of course, is the latest school funding litigation.

“Supreme Court justices, just like regular trial judges, from time to time will need to recuse themselves from a case,” said Lumen “Lou” Mulligan, director of the Shook, Hardy & Bacon Center for Excellence at the University of Kansas. “It could be as in the case of Justice Stegall, who was Governor Brownback’s general counsel and was intimately involved with school funding, have a conflict. It could be that they have a conflict because they had previously worked on this case, or their former law partner is arguing the case, or any number of things which would be a conflict of interest, and so they have to step aside.”

The Kansas Supreme Court is not allowed to work shorthanded.

“The institution of the court, however, requires seven justices to avoid ties and to assure that you have a multiplicity of points of view,” said Mulligan. “Statute empowers the Chief Justice to assign different Kansas judges to sit on the Kansas Supreme Court in the case of recusal.”

This is in contrast to the U.S. Supreme Court, which works with 8 justices when the seats are not all filled, or in the case of recusal.

“The federal Courts of Appeals, if there’s a recusal, the chief judge of that federal Court of Appeal will find someone else to fill in,” said Mulligan. “The Chief Justice of the United States can also assign a judge from Oklahoma to go fill in in California, because there’s a need. The federal courts also have the practice of having trial court judges sit on the Court of Appeals, the intermediate Court of Appeals, every once in awhile, just so they have a different perspective.”

Mulligan says except at the state and federal Supreme Court level, you likely don’t know which judge you’ll have until a day or two before the case, so that lawyers can’t spend their time tailoring arguments to specific judges.

Faculty name: 
Lumen Mulligan