Kansas Supreme Court says governor can’t withdraw appeals court nominee
photo by: Associated Press
Story updated at 7:44 p.m. Friday, May 10, 2019:
TOPEKA — A Kansas Supreme Court decision will force the state Senate into voting to reject a judicial nominee over political tweets that lawmakers found offensive.
The Supreme Court ruled unanimously that Democratic Gov. Laura Kelly did not have the authority under a 2013 state law to withdraw her nomination of Labette County District Judge Jeffry Jack for the Kansas Court of Appeals, the state’s second-highest court. And, under the law, if the Senate fails to take a vote within a week, Jack would be considered confirmed.
Kelly’s withdrawal of Jack’s nomination in March touched off an unprecedented and bizarre legal dispute with Senate President Susan Wagle over whether the governor could name a second nominee — as Kelly eventually did. The Supreme Court’s decision means that Kelly will get that chance if the Senate, as expected, rejects Jack’s nomination.
“I encourage the Senate to act swiftly to vote down the Jack appointment next week,” Kelly said in a statement after the Supreme Court’s ruling.
The nomination was doomed after political tweets from Jack in 2017 came to light. They included vulgar language and criticism of President Donald Trump and other Republicans, with one post calling the president “Fruit Loops.”
Wagle, a Wichita Republican, has called Jack “absolutely unacceptable.” Senate Minority Leader Anthony Hensley, a Topeka Democrat, predicted no senator would vote for him.
Wagle and other Senate leaders already anticipated the possibility of such a Supreme Court ruling, and the Senate is scheduled to convene Tuesday. Lawmakers wrapped up most of their business for the year early Sunday.
The Senate president contends Kelly failed to properly vet Jack and said Friday that the legal dispute resulted from a “display of her incompetence.”
“Sadly, this avoidable situation by the Kelly administration has turned into a waste of taxpayer dollars,” Wagle said in a statement.
The Supreme Court ruled only a day after hearing arguments from attorneys. It was also less than three weeks after Attorney General Derek Schmidt, a Republican, filed a lawsuit against Kelly, Kansas Supreme Court Chief Justice Lawton Nuss and the Senate to resolve the dispute.
The Supreme Court appointed a substitute for Nuss, who recused himself. His attorneys told his colleagues that he had no position on how the case should be resolved.
The vacancy on the Court of Appeals was created by the retirement of longtime Judge Patrick McAnany on the day that Kelly took office in January.
The 2013 law says that if governor fails to make an appeals-court nomination within 60 days of a vacancy, Nuss makes the appointment. The deadline was March 15, the day Jack was nominated, and Wagle argued that Jack’s withdrawal meant Kelly failed to make a proper nomination in time.
Under the law, the Senate has 60 days to act on a nominee if the Legislature is in session, as it was when Kelly named Jack, or the nomination is deemed confirmed. The law says that if the Senate rejects a nominee, the governor appoints another.
Kelly cited that section of the law in arguing that she could name a new nominee, and she chose Sarah Warner, a 39-year-old Lawrence attorney.
“It’s time to move forward and fill this vacancy,” Kelly said in her statement.
The 2013 law applies only to Court of Appeals appointments and doesn’t specifically say what happens if a nomination is withdrawn. A broader law applying to other appointments allows nominations to be withdrawn.
Justice Dan Biles wrote in the Supreme Court’s opinion that the Court of Appeals is “the obvious outlier” and the justices would be “adding words” to the 2013 law if they concluded that it allows an appeals court nomination to be withdrawn.
“We conclude the Governor is powerless to withdraw a Court of Appeals nominee once it is made,” Biles wrote.
If a nominee withdraws, Biles wrote, the only “practical purpose” is “clearing the path” for a quick vote against his or her confirmation. The court also concluded that Kelly’s nomination of Warner must be treated “as if it never happened.”