Topeka — An attorney asked the Kansas Supreme Court on Wednesday to give Gov. Kathleen Sebelius the power to fill vacancies in state and county offices as she sees fit.
State law requires Sebelius to appoint a successor nominated by party precinct committee members in the county or district of the resigning official.
But Gregory Garvin, a Kansas City, Kan., attorney, told the court that the law was unconstitutional because it gave a nonrepresentative group of people the power to fill vacancies, and the governor had no discretion.
Garvin represents Shawnee County Democrats, who went to the Supreme Court to settle a dispute over the appointment of a successor to former Shawnee County Treasurer Rita Cline, who resigned in March amid allegations that she misused county funds.
Cline won re-election as a Democrat in 2000 but switched parties months later. State law does not say which affiliation determines which party nominates a successor; both parties have submitted names to Sebelius.
A similar dispute arose in Woodson County, where former Sheriff Mike Hinnen resigned for personal reasons, also after switching to the GOP. Sebelius' office filed a lawsuit in district court there.
During arguments in Cline's case before the Supreme Court, attorneys spent most of their time discussing whether the appointments law was constitutional. Garvin said the Legislature had essentially delegated a governmental power to private groups -- political parties.
"The governor, however, was elected by the people of Kansas and is responsible to the electorate, whether Democrat or Republican," Garvin said later.
If the court struck down the law, the governor would have the authority to fill vacancies on her own. That was the practice for most offices following statehood in 1861.
The exception was legislative vacancies, where state law originally called for special elections. In 1947, the state adopted the practice of having precinct committee members pick successors when a House or Senate member resigned.
The current law, enacted in 1972, extended that practice to county and other "district" offices. The governor still has the power to fill vacancies in statewide offices and U.S. Senate seats; vacancies in the U.S. House are filled by special elections.
Assistant Atty. Gen. Scott Hesse and Natalie Haag, an attorney representing Shawnee County Republicans, argued the appointments law was constitutional. Haag served as chief counsel under GOP Gov. Bill Graves.
Haag said that in enacting the appointments law, the Legislature meant to get as close to having an election as possible. She also noted that precinct committee members are elected.
"The Legislature had to create a clean and less costly method of replacement," she said.
And Hesse said that while political parties were not government entities, neither were they strictly private ones, like a company, union or trade organization.
"Political parties are recognized under Kansas law as having a special status," he said.