Kelly moves toward nominating new Kansas appeals court judge; AG asks Supreme Court to settle dispute

photo by: Associated Press

Kansas Gov. Laura Kelly, left, introduces Jeffry Jack, right, as her nominee for a seat on the state Court of Appeals, during a news conference, Friday, March 15, 2019, at the Statehouse in Topeka, Kan. . Jack is a Labette County district court judge who previously served in the Kansas House. (AP Photo/John Hanna)

Story updated at 10:32 p.m. Monday, April 22:

TOPEKA — Kansas’ attorney general on Monday asked the state Supreme Court to settle an unprecedented dispute between Gov. Laura Kelly and a top lawmaker over whether Kelly can name a new lower-court judge after withdrawing her first pick.

The Democratic governor announced last week that she is moving ahead with submitting a new state Court of Appeals nominee to the GOP-dominated Senate for confirmation despite the objections of Senate President Susan Wagle, a conservative Wichita Republican. Wagle said Monday that Kelly is showing “blatant disrespect” for the law governing appointments to the state’s second-highest court.

Kelly was forced last month to withdraw the nomination of her first choice, Labette County District Judge Jeffry Jack, over political posts on his Twitter feed in 2017. Some included foul language or acronyms and one described President Donald Trump as “Fruit Loops.”

Wagle contends that by withdrawing Jack’s appointment, Kelly missed the legal deadline for nominating an appeals judge and the choice now falls to Supreme Court Chief Justice Lawton Nuss. The governor contends she met the deadline and gets to try again.

Attorney General Derek Schmidt, also a Republican, filed a petition Monday with the Supreme Court arguing that the law is “silent on this question.”

“It provides no legal authority for either the governor or the chief justice to fill a vacancy in this situation,” Schmidt wrote.

Jack’s failed nomination was a major embarrassment for the new governor and raised questions about her vetting process. No governor has missed making an appointment to the Court of Appeals since the state created it in 1978.

Schmidt asked the Supreme Court to expedite a decision. Legislators return May 1 from an annual spring break but are scheduled to wrap up their work for the year on May 17.

Veteran appeals court Judge Patrick McAnany retired the day Kelly took office in January. The 2013 appointments law says if the governor fails to make a nomination within 60 days, the choice falls to the Supreme Court’s chief justice.

Kelly announced Jack’s nomination on the March 15 deadline and withdrew it four days later. Wagle accused the governor Monday of trying to “bypass” the law.

“We should not escalate this conflict further but instead seek resolution on the legal question of who holds power to make the next nomination,” Wagle said before Schmidt filed his petition.

The law says that if the Senate rejects a nominee, the governor names another, without addressing what happens if a nominee withdraws without a vote. Kelly and her staff have argued that Jack represents a failed nomination.

“We need to get somebody on the Court of Appeals,” Kelly told reporters Monday. “We just need to get that language clarified, but in the meantime, I think it’s important that we go ahead with the process.”

Related stories

April 12 — GOP leader seeks to stop Kansas governor from nominating new appeals judge

March 19 — Kansas governor withdraws judge’s nomination for appeals court after outcry over tweets

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