I mentioned yesterday the ongoing fight over merit selection for the Kansas Supreme Court. Yesterday was a very, very busy day and night.
During the day, the Kansas Bar Association’s executive committee unanimously rejected a proposal to change the state’s merit system that would give the governor the power to name 5 members of the merit selection commission and the state bar the power to elect 4 (currently it is bar 5, governor 4). The governor’s picks would serve at the pleasure of the governor and NOT for fixed terms. In addition the governor’s pick would be subject to senate confirmation.
During the night the fight took a new twist as members of the Kansas House Federal and State Affairs committee approved constitutional amendments that would end merit selection, split the supreme court, and change the mandatory judicial retirement age downward. (h/t Gavel Grab)
1) Split the Supreme Court: taking a page out of similar efforts in 2011 in Florida when that state’s House was angry with the Supreme Court (HJR 7111) the committee approved a plan to create a Kansas Court of Criminal Appeals to take over all criminal cases currently heard by the Supreme Court. Details remain fuzzy as the bill has not yet entered into the Kansas House’s bill tracking system. One news account seems to make it appear that the court would be on equal status and footing with the Supreme Court, a model that exists in Texas and Oklahoma. Another news account seems to indicate the new Court of Criminal Appeals would be an intermediate appellate court, a model that exists in Alabama and Tennessee.
2) End merit selection: The second proposal submitted by House committee would end merit selection and replace it with a form of federal system that includes executive (governor) appointment, senate confirmation, and possible life tenure. This may be similar if not identical to a House plan put forth in 2011 (HB 2101) for the Court of Appeals that included life tenure, a provision that was stricken after it was noted the KS constitution forbids life tenure for anyone (Art. 15, Sec. 2 “The tenure of any office not herein provided for may be declared by law; when not so declared , such office shall be held during the pleasure of the authority making appointment, but the legislature shall not create any office the tenure of which shall be longer than four years, except that appointments under a merit system in civil service shall not be subject to such limitation.”)
3) Reduce mandatory retirement age: At a time when most states are looking to INCREASE the mandatory retirement age, the House Federal and State Affairs Committee approved a measure to reduce it for Kansas from 75 (or more accurately the term in which they turn 75) down to 65. The mandatory retirement age is set by statute and therefore does NOT require the supermajorities the other two proposals would require.
House Democrat Minority Leader Paul Davis told the Wichita Eagle: “Trying to mess with their retirement age and creating new courts are just simply an effort to try to bully the Supreme Court,” he said. “But there’s just no place for that.”
Lead proponent Rep. Lance Kinzer who chairs the House Judiciary Committee also told the Eagle that while the court-split and merit-selection end amendments were put forth with an eye towards 2014, the reduction in the mandatory retirement age for justices from 74 to 65 may get through the 2013 session.
With respect to the retirement age, it is unclear what justices would be impacted. The Kansas Supreme Court’s website gives the birthday or birth year of the 7 justices; a reduction from 75 down to 65 would not appear to result in an immediate forced resignation (assuming the provision is retroactive).
|Birth year||Retire during term each 75 (current)||Retire during term each 65|
|Chief Justice Lawton Nuss||1952||2027||2017|
|Justice Marla J. Luckert||1955||2030||2020|
|Justice Carol A. Beier||1958||2033||2023|
|Justice Eric S. Rosen||1953||2028||2018|
|Justice Lee A. Johnson||1947||2022||2012|
|Justice Dan Biles||1952||2027||2017|
|Justice Nancy Moritz||1960||2035||2025|