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Appeals court chief: keep "merit system" for selecting judges

MaloneTOPEKA – The chief judge of the Kansas Court of Appeals asked lawmakers Thursday to turn aside a request by the governor to change the way judges are selected for the Supreme and appellate courts.

Chief Judge Thomas Malone told the Senate Judiciary Committee that the current method of selecting judges is open and transparent and finds better judges than the alternatives that have been proposed.

Malone made his remarks on the second day of hearings before both the Senate and House judiciary committees, who are acting on a request by Gov. Sam Brownback and others to change the way Kansas selects its top judges.

At present, the judges are selected by what is called the "merit system." A panel of nine people — five lawyers elected through the Kansas Bar and four non-lawyers appointed by the governor – select three finalists. The governor then appoints a judge from among those finalists.

The Bar Association offered Wednesday to give up its majority on the commission if lawmakers think lawyers have too much influence.

In his State of the State speech Tuesday, Brownback called on the Legislature to change the system to either direct election by voters or the "federal model," in which the governor would select and appoint the judges with the consent of the Senate.

Thursday was set aside for supporters of the current system to make their case to the legislative committees. Proponents of changing the system testified Wednesday.

The battle over judicial selection is largely fallout from the unending controversy over school finance.

Brownback and conservative lawmakers have bristled at court orders to increase money for schools to meet the constitutional mandate that the Legislature provide "suitable" education funding.

A companion proposal, also backed by Brownback, would strip the courts of the authority to determine what "suitable" funding is and place the decision entirely with the Legislature.

Malone said the Court of Appeals has been noncontroversial and hardworking.

In 2012, the court handled more than 1,800 cases and issued 1,286 written opinions, he said.

"Few of our decisions garnered any mention in the press or stirred up any controversy," he said.

Although Supreme Court and appellate judges are selected the same way, the Court of Appeals could see its judge-selection process changed first.

The selection process for Supreme Court justices is written into the state Constitution and can't be changed without a two-thirds vote in the House and Senate, followed by a vote of the electorate.

The Legislature can change the selection process for appeals judges with a simple majority in both houses.

Supporters of the current system concede that conservative Republicans probably have the votes to change the selection process for the Appeals Court, but changing the selection of Supreme Court justices is far less certain. There are probably enough votes in the Senate to put an amendment to voters, but the forces for change in the House may have trouble getting the two-thirds majority they need there.

Malone said whatever the lawmakers decide to do, they should continue to have the same system for selecting Supreme Court and Court of Appeals judges.

"The Kansas Court of Appeals is not a pilot project for the Legislature to test out the federal model or any other method of judicial selection," he said.

And if they want to change the system for either or both courts, they should do it through a constitutional amendment, he said.

The current system for picking the Supreme Court was approved by about 60 percent of Kansas voters in 1958.

The vote was spurred by public outrage after a lame-duck governor who had been voted out of office engineered his own appointment to the Supreme Court, by resigning before the end of his gubernatorial term and having his former lieutenant governor appoint him.

"Our current merit selection process reflects the people's will and the system should only be changed by a public vote," Malone said.

Among the other speakers at the hearing was Jack Focht, a 79-year-old lawyer from Wichita.

Looking up at the portraits of Supreme Court justices that line the chamber where the Judiciary Committee meets, he said he remembered many of the jurists from his more than 50 years of practicing law.

"Some were good and some were bad," he said. "The best ones were the ones picked under the merit selection system."