Jessica M. Karmasek Mar. 28, 2013, 2:00pm

TOPEKA, Kan. (Legal Newsline) -- Kansas Court of Appeals judges now will be chosen by direct gubernatorial appointment with Senate confirmation, under legislation signed into law by Gov. Sam Brownback Wednesday.

House Bill 2019 requires the clerk of the Kansas Supreme Court to give prompt notice of a vacancy to the governor, who must then make an appointment within 60 days.

If the governor does not make the appointment within 60 days, the chief justice of the Supreme Court will appoint a qualified person for the position.

The Kansas Senate then must vote to confirm the appointment within 60 days of being received.

If the Senate is not in session and will not be in session within the 60-day time limit, it must confirm the appointment within 20 days of the next session.

If the Senate fails to vote within the time limit, its consent will be deemed given.

If the appointee does not receive a majority vote in the Senate, the governor would appoint another qualified person within 60 days, and the same consent procedure would be followed.

The bill also creates a 14th Court of Appeals position as of July 1.

"The guiding principle of our American democracy must be that every citizen stands equal before the law, with an equal voice in this long running American experiment in self-government," Brownback said in a statement Wednesday.

"Kansans expect and are entitled to a government that is not beholden to any special interest group. Unfortunately in Kansas, our current system of selecting our appellate judges fails the democracy test."

Brownback continued, "Rather than providing an equal voice to all Kansans in the selection of our Appeals and Supreme Court judges, Kansas is the only state in the union that allows a special interest group -- to control the process of choosing who will be judges for the rest of us."

Prior to the new law, Court of Appeals judges were chosen by merit selection.

Under merit selection, a panel of lawyers and non-lawyers interviews applicants to be judges, checks their references and sends the most qualified finalists to the governor. The governor then selects one of the finalists to fill the vacancy.

The new process -- also known as the "federal process" -- is similar to how justices for the U.S. Supreme Court are appointed.

"This is not about controlling judges," Brownback said. "Judicial independence is vital and necessary for fair and just rulings from our courts. But judicial independence must rest firmly on the consent of the people. Public confidence is the best and only hedge around the independent judgments of our courts.

"We must give all Kansans an equal voice, whether directly or indirectly through elected representatives, in choosing our judicial leaders."

HB 2019 is the first bill signed into law by Brownback this legislative session.

Poll results released in January showed that a majority of Kansas voters, including Republicans and Democrats, opposed amending the state constitution to change the way in which Court of Appeals judges and 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.

Justice at Stake Executive Director Bert Brandenburg said Wednesday that Brownback has "discarded" a judicial selection system that has worked well for decades.

"Unfortunately, his action empowers the governor's office at the expense of the courts -- and at the expense of the citizens of Kansas, who have made it clear that they do not want these additional powers granted to a governor," he said in a statement.

"Supporters of this change should be more cautious about seeking to inject Washington, D.C., style politics into the picking of judges, which has fueled hyper-partisanship, deterred qualified nominees from applying, and led to record delays in filling open court seats.

"This can happen in the states, too."

Brandenburg pointed to New Jersey.

Gov. Chris Christie, a Republican, has battled a Democratic-controlled state Senate for months. The Senate has refused to confirm his judicial nominees, leaving vacancies on state courts and two open seats on the New Jersey Supreme Court.

"Some might say political gridlock is less likely while the governor and Senate majority both represent the same party. But judicial selection systems should be forward-looking and lasting, not fashioned to suit the politics of a moment," Brandenburg said.

"The possibility of a split government battling over judicial appointments should have given the governor pause."

He noted that because the Kansas legislature does not stay in session throughout the year, a vacancy that occurs when the Senate is out of session could leave the court short-handed for several months.

Earlier this year, the Kansas Senate, with Brownback's backing, passed a constitutional amendment to scrap the existing merit selection program for both the Court of Appeals and Supreme Court, but that measure has stalled in the House.

Lawmakers subsequently shifted focus to the bill signed Wednesday, which required fewer votes to pass.

From Legal Newsline: Reach Jessica Karmasek by email at

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