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Kansas chief justice says senator’s proposal on judicial selection is political coercion

  • Eagle Topeka bureau
  • Published Sunday, May 19, 2013, at 9:36 p.m.

— Kansas lawmakers began the year by turning away the chief justice of the state Supreme Court from his traditional speech to the Legislature.

As the legislative session nears an end, that justice is charging a leading senator with political coercion. Meanwhile, efforts are picking up steam to force appellate judges into retirement and to build separate civil and criminal appeals courts.

“Tensions are high between the court system and the Legislature,” said state Sen. Jeff King, R-Independence and chairman of the Senate Judiciary Committee.

Relations between the two branches of government have been rocky for years, especially with controversial court decisions ordering the Legislature to spend millions more on schools and stymieing the state’s use of the death penalty.

“You have a court that on some touchstone issues has been challenging what is mostly a conservative and Republican-dominated Legislature,” said Joe Aistrup, a political scientist at Kansas State University. “It has led to some pretty big showdowns.”

Conservative lawmakers have argued the Supreme Court lacks philosophical diversity. That, they say, feeds decisions they view as going beyond the law.

Those legislators have been particularly upset with the court ordering how much the state should pay to fund schools from a case dating to 2005.

“They appropriated the money, and they don’t have the authority to do that,” said state Sen. Greg Smith, R-Overland Park.

A rough year

Tensions flared last week. Chief Justice Lawton Nuss dueled with King. Then an Olathe legislator introduced a bill that would remake the appellate system by lowering the retirement age for appellate judges.

Nuss accused King of tying approval of parts of the judiciary budget to judges supporting a plan for changing how appellate judges are selected. “We find this linkage distasteful – and unacceptable,” Nuss wrote to judges on May 14.

King said the accusation was “false and baseless.”

He said the accusation was based on a meeting that the chief justice didn’t attend.

Nuss’ letter may have backfired, only aggravating a Legislature focused on changing the makeup of the court by refashioning how judges are picked.

State Rep. Lance Kinzer, R-Olathe and chairman of the House Judiciary Committee, thought the chief justice was out of bounds in his allegations against King. He said the letter was evidence of the politicking he believes the court has undertaken on issues.

“It was indicative of something, from my perspective, that should not have occurred,” Kinzer said.

It’s already been a rough year for the judiciary.

House Speaker Ray Merrick, R-Stilwell, rebuffed the chief justice’s request to address a joint session of the Legislature to present the state of the judiciary report. Merrick said lawmakers complained the report was a waste of time.

The Legislature passed a bill allowing the governor to pick judges for the Court of Appeals with Senate confirmation. Appeals court judges are currently picked by a screening panel made up mostly of lawyers who recommend candidates to the governor.

Lawmakers have unsuccessfully pushed a constitutional amendment preventing the Supreme Court from telling them how much to spend on schools.

“Every part of this effort has been an effort to control the judiciary and change its makeup so that it looks more like the legislative and executive branch philosophically,” said Overland Park lawyer Greg Musil.

Federal model

Most of the debate over the Kansas judicial system is centered on how appellate judges are picked.

The state has used a nine-member nominating commission, which is made up of five attorneys picked by other lawyers and four non-attorneys appointed by the governor. The governor then chooses from among three candidates picked by the commission.

Critics say that system is undemocratic because it puts the judiciary in the hands of an unaccountable group where lawyers outnumber laymen.

Gov. Sam Brownback has pushed hard for changing that system to a federal model, in which the chief executive nominates a candidate for Senate confirmation.

Critics said that would politicize the selections.

One effort this year aimed to let the governor appoint Supreme Court and appeals court judges. But changing the high court requires a constitutional amendment.

The Senate passed the amendment, but supporters couldn’t muster the necessary two-thirds support needed in the House.

Key lawmakers had been negotiating with the Kansas Bar Association to come up with a compromise that would have kept the nominating commission for appellate judges but would have given the governor a majority of appointments to the panel.

The bar association rejected the idea, and Kinzer subsequently introduced three bills that would have changed the court system.

One proposal would lower the retirement age for appeals court judges to 65 from 75. That’s seen by the Kansas Bar Association as an aggressive attack by the Legislature. By 2017, eight of the state’s 20 appeals court judges would be 65 years old. (Three of those nearing the lowered retirement age are on the Supreme Court; seven sit on the court of appeals.)

“That’s the threat,” said Lee Smithyman, president of the Kansas Bar Association. “It certainly is an act of hostility.”

Kinzer said the bill lowering the retirement age originated from lawmakers who have wanted to look at term limits for judges. He thought lowering the retirement age seemed like a more reasonable approach.

He said looking at some kind of limits on how long judges serve would be an option if a consensus can’t be reached on a new selection process.

“I view the retirement age as a starting point for that conversation,” Kinzer said.

Kinzer also is proposing legislation that would split the state Court of Appeals into two, one for criminal cases and another for civil.

The criminal division would have final say on all criminal cases.

House minority leader Paul Davis criticized Kinzer’s proposal, saying it was an effort to bully the courts.

“Gov. Brownback has been fixated on gaining control over the independent judiciary since the district court ordered the Legislature to properly fund Kansas public education,” he said. “It is time for Gov. Brownback and Republican legislative leaders to abandon this power grab and respect the system of checks and balances.”

Kinzer said the timing was right to bring the new proposals forward after an agreement could not be reached on judicial selection.

He expects the issues to be taken up during next year’s legislative session.

“I wanted to get the ball rolling before the legislative session wrapped up this year so that people can have something firm to look at,” he said.

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