Kansas legislators take up measures targeting Kansas Judiciary

? Kansas lawmakers are expected to spend much of next week working through a backlog of bills that have been bottled up on the floors of both chambers, including several measures that would impose historic changes on the Kansas judiciary.

Those include three proposed constitutional amendments that would change the way Supreme Court justices are chosen, and a bill that would force many sitting judges off the bench in the next few years by lowering their mandatory retirement age.

“All of them, all they do is serve to politicize the judicial branch of government,” said Rep. Boog Highberger, D-Lawrence, who serves on the House Judiciary Committee.

Friday, Feb. 27, marks what is called “turnaround day” in the Legislature, the deadline for most bills to pass out of their chamber of origin. Both chambers have an unusually large backlog of bills this year, due in large part to an extended dispute between the two chambers over their joint rules for the session, a dispute that was only resolved last week.

As of Friday, there were 63 bills and resolutions that have passed out of committee and are sitting on the House calendar awaiting floor action. The Senate calendar listed 59.

Supreme Court appointments

Among the measures on the House calendar are two proposed constitutional amendments dealing with Supreme Court justices: one calling for judges to run in partisan elections and another, known as the “federal model,” that would empower the governor to appoint justices directly, subject to Senate confirmation.

Currently, people apply for openings on the court through a nonpartisan nominating commission that screens applicants, interviews candidates and sends three nominations for the governor to choose from. Those justices then stand for retention in the next general election, and again every six years afterward.

Conservatives have criticized that system for years, arguing that the Kansas Bar Association is guaranteed a majority on that panel and it tends to nominate justices whom they consider liberal.

Those criticisms have grown louder in recent years after the court’s rulings in controversial school finance lawsuits. And they came to a fever pitch last year after the court vacated the death sentences of convicted killers Jonathan and Reginald Carr, a decision that became a campaign issue in the 2014 elections.

In his State of the State address in January, Gov. Sam Brownback called for a constitutional amendment to change the process, either to direct elections or the federal model.

“This is an issue that’s very important and the state,” said House Majority Leader Rep. Jene Vickrey, R-Louisburg. “The voters in the state should have an ability to vote and decide what is right.”

Rep. Jim Ward, a Wichita Democrat who also serves on the Judiciary Committee, called it a power grab by the governor.

“The governor wants to control the third branch of government,” Ward said. “As (former Sen.) Tim Owens said recently, so he can get judges who will vote his way.”

Owens, a moderate Republican from Overland Park and former chairman of the Senate Judiciary Committee, was quoted in a recent Topeka Capital-Journal story as saying Brownback tried to pressure him into supporting such a change in 2012, “so we can get judges who will vote the way we want them to.”

No one else who was reported to be present at that meeting, including Brownback’s former chief of staff Caleb Stegall, who is now a Supreme Court justice, has confirmed that Brownback made such a comment.

A constitutional amendment must be approved by at least a two-thirds majority in both chambers, and then by a majority of voters in a general election.

A poll conducted last year for the group Justice at Stake found 61 percent of registered voters who were surveyed opposed changing the constitution, and Ward said he thinks the public is still against it.

“I think the people of Kansas are satisfied with their judiciary,” he said. “They think they get quality judges who write good opinions, and they see no reason to change it for political purposes.”

But Vickrey said he still thinks it’s an issue the public should weigh in on.

“It’s about the citizens’ right to vote to weigh in on the issue of what is a fair way for the public to be represented, choosing who is on the Supreme Court,” he said.

Mandatory retirements

Meanwhile, another bill is pending in the Senate that would automatically remove a number of sitting judges from the bench, and it doesn’t require a constitutional amendment.

House Bill 2073 would lower the mandatory retirement age for judges by five years, making it age 70 for district court judges and age 65 for the Court of Appeals and Supreme Court.

Judges who reach that age would still be allowed to finish out the term for which they were most recently elected or retained.

The result would be that Supreme Court Justice Lee Johnson, who is 67 and was just retained in 2014, could not run for retention again. And four Court of Appeals judges would be disqualified from running again: Joseph Pierron, who is 67; Henry Green, who is 66; Patrick D. McAnany, who is 71; and Michael B. Buser, who will be 66 when his seat comes up for retention in 2018.

Another judge who would automatically be affected by that change is Shawnee County District Judge Franklin Theis, 73, who presided over the trial of the most recent school finance case. Theis is the longest-serving judge in the Kansas judiciary, and under the current rules he is eligible to seek one more term when his seat comes up for retention in 2016. He turns 75 on Jan. 30, 2017, a few weeks after his next term would start.

That bill has not yet had a hearing.