Wichita — A federal injunction that would block Kansas from filling a seat on its Supreme Court would cause an indefinite halt to the judicial nomination process in the state, attorneys told a judge Friday as they tried to discredit a lawsuit that challenges how Kansas fills those vacancies.
U.S. District Judge Monti Belot heard arguments as he mulls whether to grant an injunction sought by four Kansas residents who filed a lawsuit against attorney members of the Kansas Supreme Court Nominating Commission. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys — who make up the majority of commission members — and therefore violates the rights of other residents.
The lawsuit seeks to stop the state from filling a vacancy created when Kansas Chief Justice Robert Davis retired on Aug. 3, a day before he died.
Plaintiffs’ attorneys argued Friday that if the selection process is eventually deemed unconstitutional, it would cause “irreparable harm” to seat another Supreme Court justice before their lawsuit was decided.
“That nomination has an effect on all Kansas citizens, regardless of whether they are attorneys or non-attorneys,” said Joseph Vanderhulst, one of the plaintiffs’ attorneys.
Supreme Court vacancy
But lawyers for the commission members said the real harm would come if the injunction is granted. They said the lawsuit was unlikely to succeed, noting several courts in other states have rejected similar challenges.
“It is not in the public interest to force an indefinite vacancy on the Supreme Court,” said Stephen McAllister, one of the group’s attorneys.
Belot didn’t rule on the request Friday, saying he would issue his decision next week.
“Whatever I decide, the case itself is still alive,” Belot said.
An Indiana attorney involved in similar case in Alaska filed the lawsuit on behalf of four Kansas residents. They contend that the selection process outlined in Kansas’ constitution violates voters’ rights because lawyers unfairly dominate the process.
Five of the nine commission members are attorneys chosen by fellow attorneys; the other four are not attorneys. When a judicial vacancy becomes available, the commission chooses candidates whose names are passed on to the governor. If the governor refuses to appoint one of the finalists, the choice falls to the state Supreme Court’s chief justice.
The process has been used for more than 50 years after a state constitutional amendment setting it up was approved by voters in 1958.
The lawsuit was filed against the five attorneys on the commission and the Supreme Court’s clerk. Their lawyers said they plan to file a motion next week seeking to dismiss that case.
Belot noted Friday that his ruling on the injunction wouldn’t determine the case. The judge also told attorneys that he wasn’t going to decide on its constitutionality based on the fact that process has been in effect for so long.
“I don’t really think that I have any authority to change the system,” Belot said. “It is either constitutional or it is not.”
Whatever the outcome of the Kansas lawsuit, the case is likely to be appealed — much like similar cases filed in Alaska, Indiana and Missouri.
The lawsuit in Kansas was filed by Indiana-based attorney James Bopp Jr., who last year represented three Alaska voters who challenged a similar selection process in that state. A federal judge dismissed the lawsuit in a decision that has been appealed.
In recent years, judicial selection has been an important issue mainly for conservative Republicans upset with Kansas Supreme Court decisions on abortion and education funding. They contend a lawyer-dominated selection process results in liberal-leaning justices.
Voters decide every six years whether a Supreme Court justice is retained. Since that process began in 1960, no member of the state’s highest court has failed to get a two-thirds majority.
As a practical matter, the state’s judicial nomination process is tantamount to a tenured appointment, Belot said Friday.
In a court filing, attorneys for the defendants said the request by end a process in use for half a century “is breathtaking for its audacity” and “inappropriate on its face.”