Kansas House rejects giving Brownback more say in judicial selection, then reconsiders

In this Monday, Dec. 14, 2015 file photo, Kansas Supreme Court Justices prepare to hear arguments during a session in Topeka, Kan. (AP Photo/Orlin Wagner, File)

TOPEKA — An effort to change the process for selecting Kansas Supreme Court justices has been revived in the Legislature. The proposal being considered Saturday would give the governor more authority over the nine-member commission that names three finalists for each high court vacancy.

The Kansas House initially voted 57-56 against a proposal Saturday to give the governor a bigger voice in who is nominated for the Kansas Supreme Court, but later voted 64-56 to reconsider so that lawmakers could draft a new version and try again.

The bill came amid broad discontent from Gov. Sam Brownback and other conservatives over the court’s rulings against the state on school funding and overturning death penalty verdicts. The decision to overturn death sentences for brothers Jonathan and Reginald Carr for the killings of four people in Wichita in December 2000, they said, argues for the need to reassess the selection process.

The state’s high court judges are chosen by a nonpartisan nominating commission consisting of five attorneys elected by other lawyers and four public members selected by the governor. One of the five attorneys is the chairman. When a Supreme Court opening occurs, the commission chooses three finalists whose names are sent to the governor for a final selection.

Currently the chief justice of the Supreme Court chooses replacements if the chairman or attorney commission members resign before their terms are completed. Under the proposal, the governor would have chosen people to fill those vacancies.

The bill also would have given the authority for counting ballots cast by lawyers for the commission members to the attorney general and secretary of state. Currently, two or more licensed lawyers chosen by the chief justice serve as the canvassers. Democratic Rep. John Carmichael, of Wichita, said that change would violate the separation of powers between branches of government.

“There has never in 50 years been any suggestion of any form of impropriety in connection with those elections,” Carmichael told The Associated Press. “They run efficiently and inexpensively under the direct supervision of the clerk of the Kansas Supreme Court.”

The current judicial selection system arose after a 1957 scandal in which the incumbent governor was defeated in the Republican primary and resigned. The lieutenant governor then appointed him to fill a vacant Supreme Court seat. Attorneys became part of the election process to avoid favoritism.

Another provision of the bill would require that the secretary of state receive a roster of lawyers eligible to participate in the elections of the commission’s attorney members.

Republican Rep. John Barker, of Abilene, said during a House debate Thursday that including the secretary of state in the process would not violate the concept of separation of power. “He does it with all other elections, so why not this one?”

Republican Rep. Jan Pauls, of Hutchinson, called for the judiciary selection conference report to be considered during a House debate Saturday evening. “This is a very important topic for the state,” Pauls said.

The joint judiciary committee could finalize a new version of the bill Saturday.