Kansas effort would create Courts of Civil and Criminal Appeals, strip Supreme Court of all criminal appellate review

A 2013 plan discussed here to strip the Kansas Supreme Court of appellate review of all criminal cases has been reintroduced this morning by an unknown author (the official sponsor is the Committee on Appropriations). (h/t to @JohnCelock).

HB 2411 of 2015 is an almost verbatim repeat of HB 2416 of 2013. The current Court of Appeals would end effective August 2016. Of the 14 judges of the Court of Appeals, 9 would move to a new Court of Criminal Appeals and the other 5 to the Court of Civil Appeals (the 2013 version flipped these numbers). 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 2411 interesting is the provision as to appellate review. Under Section 2(b)

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(b), 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 statutory 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.

HB 2411 has been filed in the House but not yet assigned to a committee.