Kansas Judge refuses to bar court nomination Vacancy on court to be filled by the governor

By Roxana Hegeman

Associated Press Writer

WICHITA, Kan. (AP) -- A federal judge has refused to block Kansas from filling a vacancy on its state Supreme Court in a case challenging the constitutionality of its judicial nomination process.

U.S. District Judge Monti Belot rejected an injunction sought in a lawsuit against the attorney members of the Kansas Supreme Court Nominating Commission. The lawsuit filed by four Kansas residents claims the attorneys have too much power because they make up the majority of the commission -- therefore violating the voting rights of other residents.

"While the court agrees that determining the constitutionality of the selection process is a public concern, it does not outweigh the public interest in preventing indefinite vacancies on the Kansas appellate courts," Belot wrote.

An injunction would have immediately stopped the state from filling a vacancy created when Kansas Chief Justice Robert Davis retired on Aug. 3, a day before he died.

Judicial selection has become a compelling issue for conservatives because Democratic Gov. Mark Parkinson will fill the vacancy on the Supreme Court before leaving office in January.

Nine lower-court judges and four attorneys have applied to fill the spot. With Tuesday's ruling now clearing the way, the nine-member nominating commission plans to interview them Sept. 27 and 28 and send the names of three finalists to Parkinson.

"The governor believes our system of selecting justices in Kansas works quite well," said Amy Jordan Wooden, Parkinson's spokeswoman. "The current nomination process keeps politics out of the mix and that's the way it should be. We are pleased that the court decision allows the governor to fulfill his constitutional duty and ensure our Supreme Court is not operating with a vacancy longer than necessary."

An injunction would have also potentially affected the selection of all Kansas appellate judicial officers. One vacancy will open in January upon the announced retirement of Court of Appeals Judge Gary Rulon. The legislature has also created an additional position on the Court of Appeals.

"Over 50 years ago, Kansas voters approved a constitutional amendment on filling court vacancies that has served the state well," Attorney General Steve Six said in a statement. "I will continue to vigorously defend the constitutionality of judicial selection against politically driven lawsuits."

James Bopp, an Indiana attorney who filed the case on behalf of the Kansas residents, was traveling and did not immediately respond to messages left on his cell phone and e-mail.

In his ruling, Belot found the plaintiffs failed to meet all factors that plaintiffs were required to show in order for the court to grant the "extraordinary remedy" of a preliminary injunction.

He found that they failed to show they were likely to win their case.

The judge also said they did not show that they would be irreparably harmed if they did not get the injunction, nor did they show that their interests outweighed those of the defendants. Belot also agreed with the defendants that it was in the public's interest to maintain a selection process that was enacted in 1958.

Belot said he would rule on an anticipated defense motion to dismiss the lawsuit after all sides submit briefs.

The defendants plan to file the motion to dismiss on Friday, said Todd Thompson, one of the defendants' attorneys.

In recent years, judicial selection has been an important issue mainly for conservative Republicans upset with Kansas Supreme Court decisions on abortion and education funding. They contend a lawyer-dominated selection process results in liberal-leaning justices.

Kansas voters decide every six years whether a Supreme Court justice is retained. Since that process began in 1960, no member of the state's highest court has failed to get a two-thirds majority.

Published: Thu, Sep 16, 2010