Poll: Kansans say state SC justices should continue to be chosen based on qualifications

Jessica M. Karmasek Feb. 1, 2013, 2:05pm

WASHINGTON (Legal Newsline) -- Poll results released last month show that a majority of Kansas voters, including Republicans and Democrats, oppose amending the state constitution to change the way in which state Supreme Court justices are selected.

The poll was commissioned by Justice at Stake, a nonpartisan organization "dedicated to the preservation of fair and impartial courts." Its results were released Jan. 16.

According to the survey, 61 percent of state voters oppose making any changes to the current system.

Kansas voters adopted merit selection for their high court in 1958. Under merit selection, a panel of lawyers and non-lawyers interviews applicants to be justices, checks their references and sends the most qualified finalists to the governor. The governor then selects one of the finalists to fill the vacancy.

Once on the court, justices can keep their seat if they periodically win a retention election.

"Kansans don't want to tamper with their constitution," JAS executive director Bert Brandenburg said in a statement. "They want their judges chosen based on their qualifications, not partisan politics.

"They're not comfortable vesting so much power in the hands of a governor, even one that they like. They'd rather see judges go through an interview process that identifies the best candidates before, not after, the governor makes his pick."

The JAS poll results show that, by a nearly three-to-one margin, state voters oppose abandoning their current system and replacing it with a model that would allow the governor to choose judges without first having candidates screened and recommended by a panel.

Polling was conducted by 20/20 Insight LLC, which surveyed a representative sample of 975 registered voters over a period of two days, Jan. 13-14. The margin of error was 3.1 percent.

The findings came days before the Kansas Legislature began holding hearings on a proposed change to the state's merit selection system.

The change would allow the governor to appoint both state Court of Appeals and Supreme Court judges, with confirmation by the state Senate.

Voters would have to approve the constitutional change, however.

The proposal comes months after a federal appeals court ruled in a lawsuit filed over the current system.

In September, the U.S. Court of Appeals for the Tenth Circuit upheld the way the state selects members of its two highest courts.

In its 2-1 ruling, the Tenth Circuit affirmed a district court's decision to deny a request by a group of state voters for a temporary restraining order and preliminary injunction.

The voters, none of them lawyers, sued the attorney members of the state's Supreme Court Nominating Commission and the Clerk of the Appellate Courts requesting the order and injunction to prevent any judicial vacancies from being filled while the lawsuit is pending.

The nine-member commission includes five attorneys elected by attorneys and four non-attorneys appointed by the governor.

The voters claimed the selection of the commission's attorney members violates the one-person, one-vote principle of the federal Equal Protection Clause because the franchise is closed to all but attorneys.

Judge Terrence L. O'Brien, in a concurring opinion, explained that the effect of Kansas' merit selection system is to give lawyers disproportionate influence over the selection process.

"The challengers, non-attorney residents of Kansas, claim they must be given an equal opportunity to participate in elections for the commission's attorney members, much as they would in elections for any other public offices," he wrote.

"In their view, denying otherwise qualified voters the right to vote on equal terms with resident lawyers violates the Equal Protection Clause of the Fourteenth Amendment."

However, the commission does not exercise the type of "governmental functions" necessary to trigger strict scrutiny, he said.

"For strict scrutiny to apply, there must be a causal relationship between the elective office and its effect on the electorate. The office must exercise 'general' government power and must exercise it 'over' the geographic area served by the body, so that its work has a 'sufficient impact' on the electorate," O'Brien explained.

The commission, which can neither make law nor administer it, "plainly" has no such general power, the judge said.

"The commission is removed from the day-to-day decisions affecting the lives of the electorate. It has no say in matters of safety or welfare -- no authority to levy taxes, issue bonds, condemn property or build roads," he wrote.

"Mostly it sits idle, staffless and budgetless, and what limited authority it does have is exercised not 'over' a political subdivision, in the way that cities and districts and school boards exercise power over their constituents, but rather in service of its structural role in the judicial appointment process."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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