After an off-and-on legislative battle, the House passed a bill making the selection of judges more transparent but denying Gov. Sam Brownback expanded authority in appointing members of the Supreme Court Nominating Commission.
The bill approved by the House does give Secretary of State Kris Kobach oversight of the list of Kansas lawyers who can participate in the election of the lawyers who serve on the commission.
And it gives Kobach and Attorney General Derek Schmidt a role in counting the lawyers’ votes.
Writing the governor out of the bill rescued SB 128, which was rejected by the House on Saturday morning, revived and revised Saturday evening, and then passed on a re-vote late Saturday night.
The bill was a test of power for Brownback and conservative legislators who want to change the way Supreme Court justices are selected.
But after the initial rejection of the bill, the House and Senate judiciary conference committee took Brownback out to save the less-controversial portions of the proposal, including opening judicial selection to more public scrutiny and streamlining the process for having some municipal court convictions expunged from court records.
“It sounded like the provision on having the governor fill a vacancy on the Supreme Court Nominating Commission was causing a lot of consternation,” said Sen. Jeff King, R-Independence and chairman of the Senate Judiciary Committee. “In my humble and personal opinion, that was the least important part of the bill we sent over.”
Rep. John Carmichael, D-Wichita and the ranking minority on the House Judiciary Committee, led opposition to the bill.
He succeeded in getting Brownback removed from it. But in a late-night speech laced with religious analogy, he failed to convince the House that Kobach’s role should also be eliminated.
“We’ve eliminated the sin as it relates to our governor,” Carmichael said. “But we have retained the sin unforgiven, as it relates to the involvement of the secretary of state.”
House Judiciary Chairman John Barker, R-Abilene, contended that the secretary of state should oversee the bar association election that selects the lawyers to serve on the nominating commission. He said legislators shouldn’t base their decision on who currently occupies the office.
“We’ve probably some good ones and some bad ones,” he said. “We should not look at that. We should look at making good laws.”
How commission is selected
Under the Kansas Constitution, a nine-member commission makes the recommendations for justices to fill vacancies on the Supreme Court. The commission sends three nominees to the governor, who then has to appoint one to the court.
The nominating commission is made up of five lawyers elected by the attorneys in the state bar and four non-lawyers selected by the governor.
The lawyers elect four nominating members by congressional district and one at-large member to serve as chair of the commission.
SB 128 would have given Brownback the power to appoint lawyer members or the chairperson if there were a vacancy among the lawyers.
That power currently rests with Supreme Court Chief Justice Lawton Nuss.
Conservatives in the Legislature have sought to change the way justices are selected after clashing with the court for years on school-finance and death-penalty cases.
The surviving provisions of SB 128 would put Kobach and Schmidt on the committee that canvasses the lawyers’ votes, replacing two attorneys appointed by the chief justice.
Lawyers also would be required to report to the state within 10 days if they change their address or names.
The clerk of the Supreme Court would be required to create a roster of all the attorneys in the state and transmit it to Kobach, who would assign identification numbers to the lawyers to allow them to vote on the selection of commissioners.
The deadline for lawyers to qualify to vote would be about two months before the distribution of ballots.
The bill contained several provisions that were virtually undisputed.
One of those provisions would open the nominating commission’s meetings and records under the Kansas open meetings and open records acts.
Critics of the nominating process have long complained that it was opaque and undemocratic.
Another provision would require Brownback to disclose the identities of candidates he considers for seats on the Kansas Court of Appeals.
Until three years ago, the selection of appellate judges followed the same procedure as for the Supreme Court. But in 2013, the Legislature gave the governor the power to appoint appeals judges himself, with a confirmation vote of the Senate.
Open-government advocates have bristled at the process because the governor is not required to disclose who applied for the appellate court.
SB 128 would require Brownback to make all applicants’ names and cities of residence public after the application period closes but at least 10 days before he makes an appointment.
“I think it’s very simple. This is transparency,” Barker said. “Do you like transparency?”
The bill also makes it easier to get some convictions expunged from court records.
If a person were convicted of a crime in municipal court and the conviction was overturned on appeal to district court, the district court would have to inform the municipal court so the conviction could be expunged from the record.
Carmichael said he strongly supports the transparency and expungement provisions in the bill.
The Senate adjourned for the day just before midnight and is expected to take the measure up when it returns Sunday afternoon.