Kansas House approves changes in judicial selection process, would involve secretary of state

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)

A proposal approved in the Kansas House would give the secretary of state a role in how the nine-member commission that names three finalists for each high court vacancy elects its members.

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

Representatives voted 72-50 Saturday in favor of the bill following a turbulent passage through the chamber. The Kansas House initially voted 57-56 against a version of the bill 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. Negotiators removed a controversial provision in the bill that would have allowed the governor to appoint replacements instead.

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.

Supreme Court nominating commission selections also would now be open to the state’s open meetings and records acts, which Republican Rep. John Barker, of Abilene, said would increase transparency. “I would like to see how the attorneys vote on … the judiciary committee.”

But Carmichael argued that the measure still poses “serious constitutional concerns.”

“You do not make this major change and risk constitutional infirmities without some good reason to do so,” Carmichael said. “This legislation is unnecessary.”

The Senate could vote on the measure Sunday.