Tenth Circuit rejects challenge to Kan. judicial selection process

By Jessica M. Karmasek | Sep 14, 2012

DENVER (Legal Newsline) - A federal appeals court, in a 2-1 ruling Thursday, upheld the way Kansas selects members of its state Supreme Court and Court of Appeals.

The U.S. Court of Appeals for the Tenth Circuit, in a per curiam order and judgment, affirmed a district court's decision to deny a request for a temporary restraining order and preliminary injunction by a group of Kansas voters.

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 claim 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.

In addition to denying their requests for relief, the district court also dismissed the voters' complaint for failure to state a claim.

The voters appealed the dismissal.

Judge Terrence L. O'Brien, in a concurring opinion Thursday, 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."

O'Brien added that attorneys are "better equipped" than non-attorneys to evaluate the "temperament and legal acumen" of judicial candidates, and more likely to base their votes on factors other than party affiliation.

Senior Judge Monroe G. McKay, the lone dissenter, said he would find the election unconstitutional.

"The election at issue, like a primary election, is one step in the process of determining who will exercise one of the three most critical governmental functions: here, the judicial function," he wrote.

"This election is not shielded from constitutional challenge simply because its role in this process is indirect."

Nor does the governor's final say in the appointment process insulate the commission election from "constitutional concerns," McKay said.

"The nominating commission does not simply screen and recommend candidates in an advisory fashion -- it presents three possible candidates to the governor, one of whom he must select even if he finds all three unacceptable," he wrote.

"This process is subject to manipulation, as the commission can effectively choose its own candidate by nominating only one acceptable choice along with two individuals it knows the governor will not select."

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

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