Bigger push on Kansas judiciary selection coming

05/19/2013 10:31 AM

05/19/2013 10:35 AM

A prominent conservative Kansas legislator has launched what could become the most aggressive campaign to date to rein in the state Supreme Court after a proposal failed that would have changed how its justices are selected.

House Judiciary Committee Chairman Lance Kinzer wants to make the state's appellate courts, including the Supreme Court, more accountable to the public they're supposed to serve. Conservatives' desire to overhaul the courts intensified in recent years following Supreme Court decisions in abortion, death penalty and education funding cases.

Kinzer, an Olathe Republican, unveiled three proposals last week, only a day after two developments in the debate over the judicial selection system. The Kansas Bar Association's board unanimously rejected a proposal for Senate confirmation of appellate court members, a move that caused supporters to stop their push for it. The decision came hours after Supreme Court Chief Justice Lawton Nuss accused another prominent conservative of trying to exert undue influence on behalf of the measure, an allegation the lawmaker said was “baseless.”

One of Kinzer's proposals would reorganize the state's top courts and remove the Supreme Court as final arbiter of many of the cases that now come before the seven justices.

He said his proposal is a starting point for a discussion about the Supreme Court's role. However, if he's successful, it would lose much of its authority to settle cases – an idea that lawmakers haven't seriously pursued.

“Anytime you're looking at a fundamental reorganization of the structure of the courts, that is a far-reaching proposal,” Kinzer said during an interview.

Another House committee – Federal and State Affairs – agreed last week to sponsor Kinzer's proposals, and he intends to have lawmakers consider them next year. Legislators hope to wrap up their business for the year this week.

Kinzer's measures alarm Democratic legislative leaders. They already consider proposals to change how Supreme Court and Court of Appeals members are chosen as attempts by Republican Gov. Sam Brownback's allies to ensure that the courts become subservient to executive and legislative branches under conservatives' control.

“It's just an overreach,” said Senate Minority Leader Anthony Hensley, a Topeka Democrat. “It's just punitive politics at its worst.”

Legislators are watching the Supreme Court because it's reviewing a school finance lawsuit. In January, a three-judge panel in Shawnee County declared that the state isn't living up to its obligation under the state constitution to adequately und public schools and ordered a boost in spending of at least $440 million a year.

In 2005 and 2006, Supreme Court rulings in a previous education funding lawsuit forced the state to dramatically increase its spending, much to the frustration of GOP conservatives.

What followed then – and now – were proposals to change the judicial selection system and rewrite provisions of the Kansas Constitution to prevent the courts from having a say in how much money is spent on public schools.

Kinzer's proposal to decrease the mandatory retirement age for Supreme Court justices and Court of Appeals judges would ensure at least eight vacancies on those courts for Brownback to fill should he serve two full terms as governor.

But the proposal to reorganize the appellate courts would have an even more dramatic effect. The state constitution says the Supreme Court has the jurisdiction to consider challenges from prisoners to the legality of their incarceration, lawsuits aimed at forcing public officials to perform a public duty and challenges to the right of someone to hold office or a government license or privilege. The constitution says the Supreme Court also hears other appeals “as may be provided by law.”

Thus, much of the Supreme Court's authority to hear cases is set by state law, not the constitution, which is far more difficult to change. A constitutional amendment must be adopted by two-thirds majorities in both chambers and approved by a simple majority of voters in a statewide election. Changing state law takes a simple majority in both chambers and the governor's signature.

Kinzer proposes splitting the existing Court of Appeals into a five-member tribunal to hear the final appeals in criminal cases and a nine-member court that would sit in three-member panels to consider civil cases. His proposal also would not have the Supreme Court hear most civil cases, but Kinzer said he's starting there to push lawmakers to thoroughly examine exactly which cases the justices might handle.

But if Kinzer is successful, a Supreme Court that has yet to authorize an execution under the state's 1994 capital murder law would no longer consider death penalty cases. A high court that has ordered the state to increase education spending might not review such issues ever again.

And such possibilities have undeniable appeal for the conservative Republicans who control the Legislature.

“There is a level of concern, I know, in just talking to rank-and-file legislators,” said Senate Majority Leader Terry Bruce, a Hutchinson Republican who favors changing the judicial selection system.

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