Crime & Courts

Challenge to judicial process continues

Plaintiffs challenging how Supreme Court and appellate justices are nominated in Kansas want a federal judge to issue an immediate ruling in their favor, and asked a federal judge Friday to declare parts of the state constitution unconstitutional.

Their lawsuit argues that the state's judicial nominating process gives lawyers too much power and violates voting rights. They asked U.S. District Judge Monti Belot on Friday to ignore the state's request to have the lawsuit tossed, and on Thursday requested that the judge issue a summary judgment in their favor.

Thursday's motion also asked Belot to hear oral arguments and issue a permanent injunction against the state. The court documents argued that parts of the Kansas Constitution and some state statutes are unconstitutional.

The latest legal maneuvering comes a week after the state filed its own paperwork seeking to dismiss the lawsuit. Belot had earlier rejected a request for a preliminary injunction.

At issue is a process created more than a half-century ago that uses a nine-person nominating commission to fill vacancies on the Kansas Supreme Court and appellate courts. Lawyers elect five of those commission members.

Four residents have filed a legal challenge claiming the system is unconstitutional because it gives lawyers too much power, violating the voting rights of other residents. They sued the attorney-members of the nominating commission and the Kansas Supreme Court's clerk.

On Friday, the plaintiffs argued that the state wrongly believes that lawyers are more affected by judicial power than other citizens and should therefore have a greater say in the process of nominating Supreme Court justices.

They argue that all Kansas residents have a substantial interest in having a fair, qualified and independent judiciary.

Kansas voters decide every six years whether a Supreme Court justice is retained. Since the process began in 1960, no member of the state's highest court has failed to get a two-thirds majority — making such an appointment tantamount to a lifetime tenure on the bench.

Judicial selection has taken on a greater urgency of late for conservatives because Democratic Gov. Mark Parkinson will fill a vacancy on the Supreme Court before leaving office in January. The nominating commission plans to interview applicants next week and send the names of three finalists to Parkinson.

The vacancy was created by the Aug. 3 retirement of Chief Justice Robert Davis, who died a day later. Two weeks ago, a federal judge refused to issue an injunction blocking Parkinson's nomination.

The lawsuit could also affect the selection of all Kansas appellate judicial officers. One vacancy will open in January upon the announced retirement of Court of Appeals Judge Gary Rulon. The legislature has also created an additional position on the Court of Appeals.

In their latest court filings, the plaintiffs contend that the commission can continue to operate and fill judicial openings without its attorney-members even if Belot rules in their favor.

Also before the judge is the defendants' motion asking him to toss out the entire case, arguing in part that the "one person, one vote" principle doesn't apply because other judges are appointed in Kansas and lawyers are disproportionately affected by the nominating process.

Similar legal challenges mounted in Alaska, Missouri and Indiana have failed.

The judicial selection process is not unique to Kansas: 27 other states select at least some of their judges through the use of a nominating commission that proposes a slate of nominees from which the governor makes the appointment.