Kansas: CJ not invited to deliver state of the judiciary address, end to merit selection system introduced

The first few weeks of the 2013 Kansas legislative session are already proving to be active ones and a harbinger for a hectic session.

In late December, the Speaker of the Kansas House indicated the Chief Justice would not be invited to deliver a state of the judiciary address in 2013.

In early January a lower Kansas state court enforcing a 2005 Kansas Supreme Court decision directing more state funding for schools ordered the state to spend$400 million more on education.

At almost the same time pressure was put on the state’s bar to change the way the merit selection system in the state worked. Currently 5 of the 9 members of the nominating commission are picked by the state’s lawyers.

I noted that the Kansas House Republicans in 2011 and 2012 used a series of parliamentary maneuvers to try and get the merit selection system ended for the state’s Court of Appeals (a statutory change). None succeeded, however now Republicans control super-majorities in both chambers plus the governorship, enough to pass a constitutional amendment if all GOP members approve it. Governor Brownback is likely to press for such changes after his picks for a Court of Appeals vacancy failed to be among the 3 names submitted by the merit selection commission in November 2012.

Last week the Kansas Bar agreed to a 4-5-6 plan: keep the merit selection system but provide the nominating commission would be made up 4 attorneys chosen by the state’s lawyers, 5 people chosen by the governor, and 6 by legislative leadership.

At almost the same moment the Bar approved the 4-5-6 plan, SB 8 and SCR 1601 were introduced ending merit selection and switching to a quasi-federal system.

Under the proposals (not yet available online at the legislature’s website) a commission on judicial qualifications made up of mostly non-lawyers and with no input by the state bar would vet individuals AFTER appointment (under the current merit system candidates are vetted BEFORE appointment and a list of names sent to the governor).

Interestingly, the governor would have NO appointment power over the commission: that power would be exercised by the speaker of the house (2 non-lawyer), the minority leader (1 non-lawyer), the state treasurer (1 non-lawyer), the chief justice (1 lawyer), the attorney general (1 lawyer) and a retired district judge chosen by the state’s prosecutors (1 lawyer, since all district judges must be attorneys).

The commission on judicial qualifications would review the appointee and make its recommendation to the Senate which would then have a set number of days to act or the appointment is deemed confirmed. Judges would remain subject to yes/no retention elections.