In this Jan. 12, 2016 file photo, Kansas Gov. Sam Brownback speaks to the Legislature in Topeka. (AP Photo/Orlin Wagner, File)

Topeka ? The Kansas Supreme Court on Friday declined to issue an order compelling Gov. Sam Brownback to fill a vacant seat on a district court bench, saying the 90-day time limit set out in statute is discretionary, not mandatory.

The case was filed by three other judges in the 26th Judicial District in southwest Kansas where Magistrate Judge Tommy B. Webb retired in February.

State law provides that such vacancies “shall be filled by appointment by the governor following receipt of notice from the clerk of the Supreme Court.”

It also says: “Any appointment made by the governor as required by this section shall be made within 90 days following receipt of notice from the clerk of the Supreme Court.”

Brownback was notified of the vacancy the day Webb retired, and the governor initially indicated he would make the appointment within the 90-day window.

The 26th Judicial District, however, is one of several in Kansas where judges are elected in partisan races.

At the time the case was filed, four Republicans had filed to run for the vacant seat, and Brownback later said he would wait until after the Aug. 2 primary to make the appointment.

Since then, five more Republicans have filed, for a total of nine candidates. No Democrats have filed for the seat, which means the GOP primary will effectively decide the race.

The 26th Judicial District covers six counties in the southwest corner of the state: Grant, Haskell, Morton, Seward, Stanton and Stevens.

The district’s chief judge, Bradley E. Ambrosier, and two other district judges, Linda P. Gilmore and Clinton B. Peterson, filed a suit directly with the Supreme Court seeking what’s called a “writ of mandamus,” an order compelling a public official to carry out a required duty, or to correct an abuse of discretion.

The judges said Brownback’s refusal to make an appointment was putting a burden on all the other judges in the district because they had to take on larger caseloads, and in some cases travel to other counties in the district, to handle cases they otherwise would not have handled.

They also argued that the word “shall” in the statute means the governor is required to make the appointment.

But the Supreme Court disagreed, saying the word “shall” can have different meanings, and in this case it means the governor has discretionary authority to fill the vacancy.

A writ of mandamus, the court said, cannot be used to compel an official to carry out a discretionary act.