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Sunday, August 29, 2010

Courts - More on "Lawsuit seeks to change how Kansas Supreme Court judges are appointed"

Updating this ILB entry from August 27, 2010, here is the complaint filed in USDC, District of Kansas on August 25th, and the supplemental brief in support of the Joint MOTION for Temporary Restraining Order and Preliminary Injunction filed by plaintiffs. Here are some quotes from the complaint:

1. This is a facial and as-applied challenge to the constitutionality of the Kansas Constitution, Article III, Section See), and to Kansas Statutes Sections 20-119 through 20-123, under the Fourteenth Amendment to the Constitution of the United States.

2. Plaintiffs challenge Kan. Const. art. III, § See) and Kan. Stat. §§ 20-119 to -123 because the system they establish excludes Kansas voters from participation in the election of the Chainnan and Attorney Members of the Kansas Supreme Court Nominating Commission and, therefore, denies Kansas voters the right to equal participation in the selection of the Justices of the Kansas Supreme Court and denies them the right to vote for these officials.

3. Plaintiffs challenge the system for selecting Supreme Court Justices in Kansas with respect to the composition of the Kansas Supreme Court Nominating Commission. The Commission is given the power to select the nominees for vacant positions on the Kansas Supreme Court, as well as on the Court of Appeals. Kan. Const. art. III, § Sea); Kan. Stat. §§ 20- 132,30-3004. The Governor must select one of the Commission's three nominees to fill a vacancy. Kan. Const. art. III, § Sea). If the Governor fails to make an appointment from the Commission's list, the chief justice of the Kansas Supreme Court is given the power to make the appointment from the list. Id. § S(b). Invariably, one of the three nominees selected by the Commission will become a justice or judge in Kansas, so that the Commission determines the composition of the judiciary in Kansas. Five of the nine members of the Commission are elected exclusively by the members of the bar of Kansas. Kan. Stat. §§ 20-119, -120. This restricted election denies the citizens of Kansas the right to vote and the right to participate equally in the selection of justices and judges in Kansas. * * *

14. Defendants Kerry E. McQueen, Patricia E. Riley, Matthew D. Keenan, and Jay F. Fowler are the four attorney members of the Kansas Supreme Court Nominating Commission.

15. The four attorney members are selected from each congressional district in Kansas through an election limited to the members of the bar of Kansas who are residents of the relevant congressional district and licensed to practice law in Kansas. Kan. Const. art. III, § 5( e); Kan. Stat. § 20-120. * * *

23. The composition of the Commission is set forth in the Kansas Constitution as follows:

One member, who shall be chairman, chosen from among their number by the members ofthe bar who are residents of and licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district.
* * *

25. At all times, provided there are no existing vacancies, five of the nine members of the Commission are members of the Kansas bar. Kan. Stat. § 20-127.

26. The five bar members exercise majority control over the selection of nominees for vacant positions on the state courts of Kansas.

27. Five members of the Commission, that is, the Chairman and four Attorney Members are elected exclusively by the members of the bar in Kansas. Kan. Const. art. III, § 5( e), Kan. Stat. Ann. §§ 20-119, -120.

You'll have to read the 20-page complaint yourself in order to try to understand why the plaintiffs say the Kansas system is unconstitutional.

How does this match-up with Indiana?

The Kansas structure is similar to the Indiana system, with some significant exceptions. Indiana's Judicial Nominating Commission has seven members, three lawyers elected by lawyers, three laymen appointed by the Governor. But in Indiana the chair is the Chief Justice, not another lawyer elected by the bar. The CJ is a lawyer, but is subject to retention by the voters.

As with Kansas, Indiana's constitution provides that if the Governor rejects the entire panel of three nominees, the Chief Justice makes the selection from the list of three nominees. In Kansas, however, the CJ is not a part of the Commission, so the CJ would have had no part in the initial nomination, whereas in Indiana the CJ chairs the Commission. . .

Posted by Marcia Oddi on August 29, 2010 07:00 AM
Posted to Courts in general