Kansas judicial selection should be reformed

By Karl Peterjohn.

Removing politics from the Kansas judiciary is about as likely as removing the moo from a cow. In Kansas the there is no transparency and a great deal of discrimination in this back room judicial selection process. Judge Ricard D. Greene’s defense of appellate judge selection (February 24, 2011 Wichita Eagle) in Kansas neglected these odious features in his defense of this terribly flawed system.

I write this as a second-class Kansan who has been disenfranchised in the process of selecting a majority of this powerful governmental committee that is dominated by the members of the Kansas bar and the group that picks who will become its appellate judges. There is no other government panel in Kansas that empowers one small class of special citizens at the expense of the rest of us. I recently asked the Secretary of State’s office for the election results for selecting this powerful state committee’s lawyer members. I was told that information is not available.

Five of the nine members of this powerful committee are elected solely by the members of the Kansas bar. The other four are appointed by the governor. While this committee selection process is used in a number of other states, none of them provide for making a majority of its members are lawyers.

This type of closed door selection process which occurs outside the public’s view is a reason why a few years ago, six of the seven members of the Kansas Supreme Court who had been selected using this process were members of one political party while the seventh who wasn’t, was a friend of the governor (see kansasmeadowlark.com). The latter was judicially reprimanded but that admonishment and the underlying egregious misbehavior that led to this punishment did not keep Lawton Nuss from his current promotion to be the Chief Justice of the Kansas Supreme Court.

Yeah, there aren’t any politics here. Yeah, only the best and the brightest are being added to the court according to Judge Greene. I must note that none of the Eagle’s news coverage of Nuss during his retention election last year mentioned his reprimand or kept the Eagle’s editorial page from endorsing him despite his ex parte abuse with litigants in the Montoy case.

Judicial selection is important and decisions will impact state policy. Must the state spend $853 million more for K-12 schooling to comply with the KS Constitution? Yes says the unanimous supreme court in overruling its own earlier decision. Are state owned casinos constitutional? Yes again, despite the fact that there never was a statewide vote on legalized casinos. Was the Kansas death penalty constitutional? The Kansas Supreme Court overruled itself from an earlier case and said no, but then Attorney General Kline took this case to the US Supreme Court. Kline won in Washington and that decision was reversed.

Today, the politics of the Kansas judiciary are now occurring behind the closed door-back rooms of the bar association. Transparency is non existent when the meetings of the government committee occur behind closed doors and without any public records being recorded from these meetings.

KU law professor Stephen J. Ware has written that this is an inequality that goes against the “one person, one vote” principle of democracies. The power of a vote of a member of the bar is “infinitely more powerful” than the votes of non-lawyers.

When comparing the method of judicial selection in Kansas to other states, Ware said that “Kansas is the only state that gives its bar the power to select the majority of its supreme court nominating commission.”

The Kansas House majority supporting HB 2101 should be praised for eliminating this vestige of elite discrimination by one class of specially empowered citizens. The attorneys and their hand picked judges won’t like this bill, but the politics of judicial selection should be out in public where everyone has a say as well as a clear view, instead of hidden in back rooms. I hope that a majority of the Kansas senate as well as Governor Sam Brownback agree and HB 2101 becomes law as a first step in reforming appellate judicial selection in Kansas.


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