Topeka A plan to change how Kansas fills vacancies on its two highest courts foundered Tuesday when the Kansas Bar Association’s board decided to oppose it.
Meanwhile, state Supreme Court Chief Justice Lawton Nuss accused Senate Judiciary Committee Chairman Jeff King, a key legislative backer of the proposal, of trying to exert undue pressure for it. King said the allegation was unfounded and called for an apology.
The proposal would amend the Kansas Constitution to require Senate confirmation for the governor’s appointments to the Supreme Court and state Court of Appeals. Lawmakers who support such a change didn’t think it would pass without an endorsement from the Kansas Bar Association’s leaders.
But the association’s Board of Governors voted unanimously during a private teleconference Tuesday to oppose the measure, later focusing much of its criticism on how the measure would reorganize the nine-member, statewide nominating commission that screens applicants for appellate court vacancies. Under the plan, the governor would appoint five members, and four would be lawyers elected by other lawyers, reversing the current ratio.
The commission currently names three finalists for each vacancy, and the governor appoints one, with no role for legislators. Supporters say the process minimizes the politics involved in judicial selection and preserves the courts’ independence, but critics say it’s not open enough.
The decision by the Bar Association’s board likely ends attempts to pass a proposed constitutional change this year, with lawmakers hoping to wrap up the year’s business this week. But supporters promise to pursue a proposal next year.
The Bar Association was wary of change but floated its own plans because of legislators’ strong interest in the issue. Its president, Lee Smithyman, an Overland Park attorney, said the board is “resolutely” in favor of “merit” selection and saw the new proposal as flawed.
“No one felt we could endorse it,” he said. “We felt it provided too much power to the executive branch.”
Republican Gov. Sam Brownback has called the current system undemocratic, and fellow GOP conservatives have been the strongest supporters for change following Supreme Court rulings on abortion and education funding. Critics contend the current process favors well-connected, centrist or liberal attorneys and keeps voters from being heard.
House Judiciary Committee Chairman Lance Kinzer, an Olathe Republican, called the Bar Association’s opposition to the new proposal “almost inexplicable.”
“There’s an extremely politicized legal elite in Kansas that’s dead set on retaining control,” Kinzer said. “It only increases the resolve of those who favor reform.”
Still, change is coming for the Court of Appeals, because lawmakers passed and Brownback signed a bill changing the law governing the selection of its judges. Starting in July, the governor will appoint and the Senate will confirm the judges, with no role for the nominating commission.
The selection of Supreme Court justices is dictated by the state constitution, thanks to a 1958 amendment approved by voters to stop electing justices. Another constitutional amendment must be adopted by two-thirds majorities in both chambers and approved by a simple majority of voters in a statewide election.
Thus, Kansas soon will have separate ways of picking Supreme Court justices and Court of Appeals judges.
The Senate in January approved a proposed constitutional amendment to have members of both courts appointed by the governor and confirmed by the Senate, without a commission to screen applicants. The measure stalled in the House, prompting supporters to seek a compromise with the Bar Association.
The debate was clouded by Nuss’ accusations, made in a letter Tuesday to trial court judges. Nuss said King had “suggested” to several judges in a meeting last week that the court system’s success on budget issues was tied to the judges endorsing the judicial selection plan.
Nuss was not at the meeting, but his chief counsel was. He called King’s actions a “disturbing example” of how politics affects the judiciary and said linking the two issues is “distasteful — and unacceptable.”
King, an Independence Republican and attorney, released an email from Sedgwick County District Judge Eric Yost to fellow judges, saying the allegation is unfounded. Yost, a former senator, was at last week’s meeting.
King said: “I hope and I trust, and I firmly believe, knowing the chief justice, that he will see that the right thing to do is to make a full apology for the misstatements in the letter and for unjustly defaming the character of not only a legislator but a member of the Kansas bar.”
A spokesman for the judicial branch later said in a statement that Nuss “stands by the accuracy of his letter.”