State attorney general: Kansas needs to vote on Supreme Court selection process

Kansas Attorney General Derek Schmidt briefs the House Republican caucus on recent court decisions regarding the death penalty, abortion and marijuana. GOP leaders could soon be debating whether to advance a constitutional amendment to change the way state Supreme Court justices are selected.

? Kansas Attorney General Derek Schmidt took no position Tuesday on proposed constitutional amendments to change the way state Supreme Court justices are selected. But he told Republican lawmakers that he thinks it is time voters are given a chance to decide the question.

“My only view is this is an issue that’s not going away until Kansas voters decide it, either by reaffirming the current system, which is one possible outcome, or by adopting an alternate system, which is within their sovereign right,” Schmidt said.

Schmidt spoke Tuesday morning to the House Republican caucus, which could decide within the next few days whether to bring either of two proposed constitutional amendments to the floor for a vote. Both passed out of the House Judiciary Committee last year and remain on the House calendar awaiting action. They are:

House Concurrent Resolution 5004, which would require justices to run for office in partisan elections.

Kansas Attorney General Derek Schmidt briefs the House Republican caucus on recent court decisions regarding the death penalty, abortion and marijuana. GOP leaders could soon be debating whether to advance a constitutional amendment to change the way state Supreme Court justices are selected.

• And HCR 5005, which would have justices appointed directly by the governor, subject to Senate confirmation.

A third possibility, HCR 5006, is still in the Judiciary committee and has not yet had a hearing. It would phase in gubernatorial appointment of justices as seats become vacant through retirements or resignations. Governors would have 60 days to make an appointment after being notified of a vacancy, or else the chief justice would be empowered to make the appointment.

That amendment also put the Kansas Court of Appeals into the Constitution, providing that those judges be appointed by the governor, subject to Senate confirmation, the same procedure now in state statute.

Schmidt spoke to House Republicans mainly to brief them on the status of various high-profile court cases dealing with the death penalty, abortion and the city of Wichita’s failed attempt to decriminalize marijuana possession.

Some conservative Republicans are still seething over the Kansas Supreme Court’s 2014 decision to vacate the death penalties of Jonathan and Reginald Carr, two brothers convicted in a gruesome quadruple homicide that occurred in Wichita in December 2000.

But they have also been angry over court decisions on school finance and a host of other issues, and they fault the current selection process, known as “merit selection,” in which the governor selects justices from a list of three names selected by a nonpartisan nominating committee made up mainly of lawyers.

“We need to put something on the ballot that is fair, that brings us a democratic solution,” said Rep. Jene Vickrey, R-Louisburg, the House majority leader. “Democracy should be the focus. It should give Kansans the ability to have a system that citizens are involved in selecting who puts the nominations before the governor.”

House Speaker Ray Merrick, R-Stilwell, said he hasn’t decided yet which of the proposed amendments is more likely to come up for a vote, or exactly when that will be.

In order to amend the Kansas Constitution, a two-thirds majority in both chambers of the Legislature must pass a resolution calling for the amendment to be placed on a general election ballot. From there, it takes only a simple majority of votes in the election to ratify the amendment.

Republicans control greater than two-thirds majorities in both chambers, but the GOP caucuses are not united about changing the judicial selection process.

“To me, the paramount issue is separation of powers and preservation of the three coequal branches of government system,” said Rep. Don Hineman, R-Dighton. “Nothing I heard today changes my view on that issue.”

Democrats, meanwhile, remain largely united in opposing any effort to change the judicial selection process.

House Republicans plan to continue discussing a possible vote on an amendment Wednesday morning, just a few hours before Supreme Court Chief Justice Lawton Nuss is scheduled to deliver his State of the Judiciary address.

Nuss is scheduled to speak at 12:30 p.m. Wednesday from the Kansas Judicial Center. His address will be carried by a live video stream on the Supreme Court’s website, kscourts.org.