Powers had the opportunity last Monday, May 3, to participate in the work of a justice at the state’s highest appellate level when he sat in for Chief Justice Robert E. Davis, who was on medical leave.
Powers heard oral arguments in two civil cases, two criminal cases and a driver’s license suspension appeal, then participated in the high-court deliberations and opinion drafting.
Several years ago, Powers did a similar stint of service with the Kansas Court of Appeals, but this was his first experience with the highest court in the state.
“I was struck by the difference between a trial judge looking at solving a problem, which is what I do, versus appellate court justices, who have a more global view,” he said.
“It was impressive to me that it was very clear that they knew that whatever they decided could have dramatic impact on the way people did business across the state—whether it was literally in a business situation or criminal law or whatever.”
Contacted in advance
Powers said he was contacted about the opportunity several weeks in advance by Justice Lawton Nuss, who is serving as chief justice during Fields’ leave of absence.
“At first I inquired if by chance he had the wrong number,” Powers joked about the initial phone call. “(But) it’s one of those things that when the Supreme Court asks you to do something, it’s an honor.”
Shortly after saying yes, Powers received a large stack of briefs about the five cases he and the six sitting justices would hear.
“I went through all of that material and made my own notes, because, as you can imagine, if you have multiple briefs you can’t keep track of everything,” he said. “So I condensed it down so I could look at (the summary) and refresh my memory.”
Closer to the court date, Powers received the pre-hearing memorandum from staff, who review the case law cited in the briefs and offer preliminary opinions on the materials.
On the day of the proceedings, Powers said he arrived two hours early and settled in at the justices’ conference room—his makeshift office—to review the material one last time.
As the 10 a.m. start neared, he met the other justices in the robing room, where they gather before entering the court room. He was advised by Justice Nuss that a judge who sits in for a Supreme Court justice usually fills the chair temporarily vacated by the sitting justice.
“Well, that would have put me in the chief justice’s seat, and the chief justice is the one who runs the show in the courtroom,” Powers said with a chuckle. “That would have been rather not so good.”
Instead, Nuss sat in the chair of the chief justice and Powers sat immediately to his right.
Powers said the justices normally sit according to seniority, and their entry into the chamber is well choreographed.
“As you go up the stairs, they split, every other one, and go around this partition, and then they kind of cross over each other going into their chairs,” he said. “I?would have really messed that up if they hadn’t told me.”
The day’s agenda
Oral arguments began at 9 a.m. and would normally last until noon. This session went 20 minutes longer because the presentation time is extended when justices ask the attorneys questions.
After lunch, Powers met with the other justices to “conference” the cases, which is an open discussion about the merits of the arguments.
Normally, Powers said, each case is assigned in advance to one of the justices, who will lead the discussion on the particular case and then write the final opinion when the process reaches that stage.
If a case generates a dissenting opinion, the justice who holds the varying perspective will prepare it for the record. Each written decision is circulated among all the justices for comments before it is released.
Powers admitted he was a little intimidated at first about expressing his opinion on the arguments because the job of a Supreme Court justice is significantly different from his job as a trial judge.
“When you’re playing football it’s ‘I know the rules,’ then suddenly some says, ‘Hey, you’re going to officiate this game,’” Powers said using a sports analogy to explain the difference. “It’s like, ‘OK, I know how to play the game, but I don’t know if I know how to officiate it.’
“I?know how to be a trial judge, but now here I am suddenly sitting with the Supreme Court,” he added. “I think it would have been foolish of me to start shooting my mouth off, but I felt they were sincere in giving me the opportunity to express my opinion.
“The very first one I probably wasn’t as vocal as I?was the second one,” Powers said. “By the fifth one they probably wanted me to shut up. I hope that they felt like I offered them something.”
Powers said that in the five cases he heard, the judges seemed to be moving toward a consensus decision. The actual opinions are still being written.
The decision in the case regarding the driver’s license suspension, as odd as the topic sounds at first hearing, may have the farthest-reaching impact, Powers said. The case dealt with the process of refusal when someone is asked to take a breath test after an arrest for DUI.
“After you say, ‘No I won’t take the test,’ can you change your mind and say, ‘OK, I will take the test’? And if that can be done, what are the rules or situations where that can be allowed?
“I think for law-enforcement officers and prosecutors and others around the state, that case will give some guidance and some clear rules on what is and isn’t allowed,” Powers said.
Rather than whet his appetite for a future seat on the Supreme Court, Powers said his experience with the justices will strengthen his career as a trial judge.
“One of the things about (sitting with the Supreme Court) is that you realize you have to make a real good record at the trial level,” he said. “Everything’s recorded, of course, but you have to explain your decisions well.
“When you make a decision, you may think you said A or B, and to some extent you do, but also you have to explain why A as opposed to B.
“It kind of crystalized how important that it is,” he said of the experience. “So I think it helped me be a better trial judge, actually.
“It was rewarding,” Powers added. “I was honored that they asked, and glad I did it. It was very different from what I do on a day-to-day basis.”