Details emerge on plan to strip Kansas Supreme Court of all criminal appellate jurisdiction, but would it be constitutional?

I mentioned back in May the situation in Kansas; merit selection had been ended for the Court of Appeals, there were accusations that court funding would be stymied if merit selection wasn’t ended for the Supreme Court, and members of the House wanted to force judges off bench at age 65.

One item that found its way into the mix in mid-May was a plan to strip the state’s Supreme Court of all criminal jurisdiction. At the time I noted that it was unclear is this was intended to create a second court of last resort with criminal jurisdiction (as in Texas and Oklahoma’s Court of Criminal Appeals) or to create a new intermediate appellate C0urt of Criminal Appeals, a model that exists in Alabama and Tennessee.

Since then the language has (finally) come online at the Kansas legislature’s website and it appears clear that it would be an intermediate appellate court. Under HB 2416 the current court of appeals would end August 2014. All current court of appeals judges would be immediately divide into two groups: five would go to the new court of criminal appeals and nine to the new court of civil appeals. The chief judge of the court of appeals would decide which judges go where. This is a marked difference from the last time a state tried something similar; in 2011 Florida’s House approved a plan to create two new supreme courts (one civil and one criminal) and mandated the most senior justices, all of whom happened to have been appointed by Democratic governors, to the new criminal court.

What makes HB 2416 interesting is the provision as to appellate review. Under Section 2 “The court of criminal appeals shall be the final court of appellate review in cases under the court’s jurisdiction.” This would appear to preclude an appeal in any criminal case from the Court of Criminal Appeals to the Supreme Court.

Under Section 3, however, civil appeals would still be subject to an appeal to the Supreme Court: “The court of civil appeals shall be the final court of appellate review in matters under the court’s jurisdiction, except in matters for which the supreme court has appellate jurisdiction.”

This appears to differ from the Alabama and Tennessee models; both specifically provide that determinations made by the Court of Civil Appeals and Court of Criminal Appeals in their states are reviewable by the Supreme Court as the state’s court of last resort (see Alabama here, Tennessee here).

Attempting to convert, or make, an intermediate appellate court into effectively a non-reviewable court of last resort is not unheard of but such efforts have not fared well. This issue came up, perhaps for the first time, in Colorado in 1886. There, the state’s legislature attempt to create a Court of Appeals with final determining power was rejected when the Colorado Supreme Court issued an advisory opinion against the plan (In re Constitutionality of Senate Bill, 9 Colo. 623 (Colo. 1886)).

The Colorado legislature removed the non-reviewable-by-supreme-court provision and the Supreme Court issued another advisory opinion in 1891 giving its approval; so long as a Court of Appeals decision could be appealed to the Supreme Court it was held to be “not obnoxious…to any constitutional objection.” (In re Constitutionality of Court of Appeals, 15 Colo. 578 (Colo. 1891)) That particular iteration of the Colorado Court of Appeals only survived 14 years and was abolished in 1905.