The Author or Authors — An update follows the essay
When lawyers and judges discuss the meaning of constitutional provisions, they often consider notes or reports from the authors of those provisions. In the Hodes & Nauser case, for example, oral arguments dealt in part with records of the Wyandotte convention. When the federal constitution is in question, the discussion concerns records from the Philadelphia convention. These sources are never perfect, but they do provide some information about constitutional language which might be unclear, whether as originally drafted or as applied to novel situations.
There is little to support such an analysis for the Amendment, however. One would naturally think of legislative debates, but as already noted, the Amendment was unchanged in the course of the 2021 legislative session. In fact, the Amendment was introduced in its present form during the 2020 session, but failed to gain the requisite 2/3 majority. So, for two years the Amendment sat before the Kansas legislature without a change to its language.
When this fact is combined with the sparse nature of Kansas legislative history generally, lawyers and judges will face challenges if the Amendment is approved. As established in the last essay, its language is not very clear. If one wishes the Amendment to have a substantially pro-life effect, its language is not very clear at all.
This raises an issue regarding the author or authors of the Amendment. The author or authors, after all, succeeded in getting a certain vision of Kansas abortion law through the legislative process and onto the ballot as a constitutional amendment. The legislature may be said to have approved that vision, but the legislature did not create it.
Unfortunately, the identity of the author or authors does not appear to be public knowledge. The public is thus asked to vote on a vision for Kansas abortion law from an unknown person or persons. In this writer’s opinion, the voters deserve to know more.
Based on suggestions from readers and this writer’s own research, a short list is presented here of possible authors. The candidates were selected because they have both legal experience and a connection with the Amendment’s origins. The persons on the list have been contacted, but as of this writing none has responded. If any do respond, or if other pertinent information can be added, this essay will be updated.
The possible authors are listed in alphabetical order. Some are associated with interest groups which support the Amendment, and such entities and the arguments they make are the intended subject of the next essay.
Representative John Barker: Rep. Barker has served in the Kansas House since 2013. He is the chair of the Committee on Federal and State affairs, which, according to the legislature’s website, was the sponsor of the Amendment in the 2021 legislative session. In his role as chair of the committee, he also held a hearing on January 15, 2021, regarding the Amendment. As stated in a media report provided on a “special” basis to one outlet: “Representative John Barker currently serves as Chairman of the House Federal and State Affairs Committee, one of the most influential committees in the House. In this role, he was instrumental in crafting the crucial Value Them Both constitutional amendment, a measure that will give decision-making power over reasonable abortion restrictions back to the voters.”
With respect to Rep. Barker’s legal background, the legislature’s website lists his occupation as “Retired Judge.” Research indicates that Rep. Barker was a district magistrate judge in Dickenson County before his retirement in 2012. The notice of vacancy upon his retirement specifies that a person so serving must have a high school degree or equivalent and, “if not regularly admitted to practice law in Kansas, be certified by the Supreme Court as qualified to serve in the job.” A review of the Kansas Supreme Court Attorney Directory does not show that Rep. Barker has ever been admitted to practice law in this state.
Brittany Jones: According to the minutes of the hearing on January 15, 2021, Ms. Jones was the first witness recognized by Rep. Barker. She identified herself as “an attorney and Director of Advocacy for Family Policy Alliance of Kansas.” She is now the Director of Policy and Engagement for Kansas Family Voice, apparently a successor organization to the Family Policy Alliance of Kansas. The Kansas Family Voice website states the following about Ms. Jones: “Most recently she was a lead advocate for the Kansas pro-life constitutional amendment, known as Value Them Both . . . .”
Based on this writer’s review of the minutes for the hearing on January 15, 2021, Ms. Jones presented the most substantive legal discussion among the Amendment’s proponents. Of interest to pro-lifers is her summary of the Amendment’s purpose, a purpose which may differ from their own understanding:
“In conclusion, if we want to ensure that women are given the most basic information about their doctor, that minor children are not left to make important decisions on their own, that women can know that they will enter a clean, safe facility, and that Kansas will not be forced to pay for abortions, we must ensure that the people have the right to regulate the abortion industry through the legislature. That is why we need the Value Them Both Amendment.” (p. 7).
As for Ms. Jones’ legal experience, the following is taken from the Kansas Family Voice website:
“Brittany holds . . . a juris doctorate from Regent University School of Law. She is licensed to practice law in Kansas and Washington, D.C. While in law school she served as a legal intern for the Family Research Council in Washington, D.C. and for the American Center for Law and Justice in Virginia Beach, VA.”
Elizabeth Kirk: Ms. Kirk was the third witness at the hearing, after a witness representing Kansans for Life, Inc., who apparently is not a lawyer. A lawyer associated with Kansans for Life, Inc. is considered next. Ms. Kirk, who is a lawyer, introduced herself as follows:
“I am a faculty research associate at the Columbus School of Law at the Catholic University of America. I also serve as an associate scholar at the Charlotte Lozier Institute, the leading national scholarly institute devoted to identifying ‘policies and practices that will protect life and serve both women’s health and family well-being.'”
These associations, while honorable, do not explain why Ms. Kirk was in Topeka during January 2021 to testify about the Amendment. Her biographies at the websites for Catholic University of America and the Charlotte Lozier Institute provide more information. During 2019-2020, Ms. Kirk “served as Director and Kowalski Chair of Catholic Thought at the Institute for Faith and Culture at the St. Lawrence Catholic Campus Center at the University of Kansas.” In addition, she “served as a consultant to the United States Conference of Catholic Bishops Pro-Life Committee under Archbishop Joseph Naumann.” Archbishop Naumann of Kansas City, Kansas, was the chair of the UCCB Pro-Life Committee from 2017, a few months after the Kansas Supreme Court heard oral arguments in Hodes & Nauser, until 2021, a few months after the Amendment was approved by the Kansas legislature.
Ms. Kirk, moreover, was the sole incorporator of the Value Them Both Association, a Kansas not for profit corporation. She was also its first registered agent. She incorporated the Value Them Both Association on February 3, 2020, just after the Amendment was referred to the Committee of the Whole in the 2020 session.
As for her legal experience, the websites linked above state that Ms. Kirk is a 1996 graduate of Notre Dame Law School. She clerked for the United States Court of Appeals for the Seventh Circuit, worked in an interdisciplinary position at Notre Dame, and has taught law at Ave Maria Law School in addition to Catholic University. She currently teaches family law. The Catholic University website adds: “Prior to entering academia, she practiced law, representing religious and charitable organizations and in the area of estate planning.” A review of the Kansas Supreme Court Attorney Directory does not show that Ms. Kirk has ever been admitted to practice law in this state.
Frederick J. Patton, II, known as Joe Patton: Mr. Patton is a Kansas lawyer and the senior partner in the Patton and Patton law firm, located primarily in Topeka. In 1983, he was an incorporator among others of Kansans for Life, Inc., a Kansas not for profit corporation. He currently serves as its registered agent and was on the brief which Kansans for Life, Inc., filed with the Kansas Supreme Court as amicus curiae, or “friend of the court,” in the Hodes & Nauser case.
Mr. Patton summarizes his legal experience on the firm website as follows: “Joe Patton is a 1977 graduate of the Washburn University of Topeka School of Law . . . . Since that time, he has practiced exclusively in the areas of personal injury, medical malpractice, and auto accident claims, and workers’ compensation.”
Update, July 21, 2022
A reader has suggested another possibility for the Amendment’s author or authors. The Office of Revisor of Statutes is a statutorily-created group of attorneys who help Kansas legislators write law. Their duties include: “Drafting of bills, resolutions and other legislative documents; legal consultation for members of the legislature and legislative committees . . . .” K.S.A. 46-1211(b). As the motto on the website cited above states, they are: “Legislative Attorneys transforming ideas into legislation.”
Well, is that what happened here? Did an attorney or attorneys working for the legislature draft the Amendment? If so, it might explain why the Amendment went through unchanged and why nobody now claims authorship. The Amendment would have been produced by the legislative bureaucracy, and legislators would have little interest in either challenging or revisiting the behind-the-scenes drafting process.
Some textual evidence also supports this theory. The Office of Revisor of Statutes provided written testimony to the hearing on January 15, 2021. The testimony said in part: “The new section would state that nothing in the state constitution requires the government to fund abortion and does not create or secure a right to abortion.
The grammatical flaw in this sentence, the dangling modifier “does not create or secure a right to abortion,” is similar to the flaw in a sentence quoted in the fourth essay from the ballot language: “The Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion . . . .” [Emphasis added.] It is tempting to think the same attorney drafted both passages, which suggests the Office of Revisor of Statutes authored the Amendment itself.