The Kansas Supreme Court engaged in unprecedented oral argument Thursday about a vacancy on the state’s second-highest court pitting the attorney general against the governor, chief of the Supreme Court and the Kansas Senate.
The confluence of all three branches of government responding to a lawsuit filed by Attorney General Derek Schmidt brought obvious discomfort to the six justices and Chief Justice Lawton Nuss’ replacement. Several on the panel suggested one option was to dismiss Schmidt’s suit and allow the political squabble between Senate President Susan Wagle and Gov. Laura Kelly about appointing authority for the Kansas Court of Appeals to play out in the Capitol.
“This is a most unusual case,” Schmidt said, “that arises from a most unfortunate series of circumstances.”
In short, Kelly on March 15 nominated Labette County District Judge Jeffry Jack to the Court of Appeals. Within a few days, Jack withdrew from consideration because of controversy about his political posts on social media. The governor vowed to make a new appointment within 60 days. However, Wagle claimed the governor forfeited power to make a replacement selection and that authority to fill the Court of Appeals’ seat fell to Supreme Court Chief Justice Nuss.
Schmidt, in an effort to referee the escalating dispute, recommended the 2019 Legislature quickly pass a law clarifying the process. Wagle declined to work on a legislative fix. Kelly announced her new Court of Appeals nominee. The attorney general filed suit under a procedure placing the case directly before the Supreme Court. Nuss recused himself.
Schmidt said his objective was for the court to pass judgment on state laws guiding appointments to the Court of Appeals and to settle the appointment jurisdiction issue.
Before Schmidt could outline four potential scenarios for resolution of the case, the justices began bombarding him with questions whether Jack’s withdraw was properly executed. Justices Dan Biles, Lee Johnson, Carol Beier and Caleb Stegall pointed out that state law overhauling the Court of Appeals selection process was strangely silent on nominee withdrawals.
“It seems to me we can’t be reading words into statute,” Biles said. “That kind of suggests to me that there is a strong argument there is no right to withdrawal.”
Stegall, a former general counsel to Gov. Sam Brownback, said the Supreme Court decided in reaction to Secretary of State Kris Kobach’s challenge in 2014 of withdrawal by Topeka Democrat Chad Taylor in a U.S. Senate race that the justices were obligated to read plain language of statute in deciding such matters. In other words, Stegall said, existing state law couldn’t be interpreted by justices to allow Kelly to withdraw the appointment and pick another person before action by the Senate.
It is an interesting point because, if true, the nominee still pending before the Senate would be Jack, rather than the governor’s replacement pick, Lenexa attorney Sarah Warner.
If the Supreme Court were to adhere to that logic, the Senate would need to vote on Jack’s nomination by Tuesday or his nomination would be considered affirmed. On Sunday, the Senate passed a resolution that contemplated returning May 14 to vote on Jack’s status.
“It makes absolutely no sense that we would be put into that position,” Senate Minority Leader Anthony Hensley, D-Topeka, said in an interview. “I don’t think Jeff Jack would get a single vote.”
Clay Britton, chief counsel to the governor, said Kelly properly submitted Jack’s nomination within 60 days of the vacancy occurring, was free to withdraw Jack’s appointment and within her right to make a replacement nomination during a fresh 60-day period.
Johnson and others on the Supreme Court said they were puzzled the Legislature didn’t include in the statute on Court of Appeals nominations the legislative intent for dealing with withdrawal of a nominee.
“This isn’t a rarity that appointments are withdrawn,” Johnson said. “It’s not a weird circumstance.
“Withdrawing the appointment is the right thing to do.”