Could Kansas end up killing merit selection for the Court of Appeals but keeping it for the Supreme Court? Only 3 other states use different selection systems for appellate courts

News accounts indicate some Kansas House Republicans may not back the plan to scrap the state’s merit selection system for the Supreme Court, but what about the Court of Appeals?

As I noted, the Kansas constitution established the Supreme Court and its merit selection system, but the Court of Appeals and its merit selection system is a creation of statute. As such, a bare majority of the House and Senate are needed to scrap the plan for the intermediate appellate court, while a 2/3rds majority is needed for a constitutional amendment to do the same for the Supreme Court.

SB 8 discusses what happens when a vacancy occurs in the Supreme Court or Court of Appeals, ending merit selection. However, the provision would only apply to the Supreme Court if the corresponding constitutional amendment passes the legislature and meets with voter approval (SCR 1601). Moreover, SB 8 as currently written provides that there would not be a split: the statute would only go into effect if SCR 1601 is adopted.

This linkage is  in contrast to efforts in 2012 that would have ended merit selection for the court of appeals but, due to a lack of votes needed for a constitutional amendment, left the supreme court’s merit selection system intact. Those efforts passed the House when it was even less Republican controlled.

Of the states that have intermediate appellate courts in statute only (i.e. they are not established in the state’s constitution) some nevertheless provide a constitutional linkage: the method of selection for the IAC can NEVER be different from that of the court of last resort.

For example, while the Colorado Constitution doesn’t require the Court of Appeals to exist, it does provide that if the court is created it shall be subject to the state’s merit selection system (Art. VI, Secs. 20 & 24).

Of the 40 states that have intermediate appellate courts, only 3  provide for different systems for selecting the judges of the intermediate appellate court and in 1 case (North Dakota) the court may or may not even exist in any given year.

New Jersey: The justices of the Supreme Court are appointed by the Governor and confirmed by the Senate. After 7 years of service they may be reappointed and reconfirmed to serve until age 70. The judges of the Appellate Division of the Superior Court are assigned by the Chief Justice from among the Superior Court judges to serve as the intermediate appellate court.

New York: The judges of the state’s court of last resort (confusingly called the Court of Appeals) are chosen via a merit-selection process: a commission submits a list of names to the Governor who must then select and forward a name to the Senate for confirmation. New York has two intermediate appellate courts: the Appellate Divisions of the Supreme Court (the Supreme Court of New York is that state’s main trial court) and the Appellate Terms of the Supreme Court. The justices of the Divisions are assigned by the Governor from among the Supreme Court judges to serve as an intermediate appellate court. The justices of the Terms are appointed by the Chief Administrator with the approval of the presiding justice of the appropriate appellate division.

North Dakota: the selecti0n is an assignment to a “Temporary Court of Appeals” created when the Supreme Court has need for case clearance purposes. The judges are appointed by Supreme Court to handle a set of cases and are, at the conclusion of the cases, removed from office. In 2010 and 2011 it does not appear the court was even called into existence.