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AP: Legislators hear more on judicial selection

1/18/2013

TOPEKA (AP) — Supporters of Kansas' judicial selection method for its highest courts told legislators Thursday that there is no need to change the process and put politics back into the way the state picks the judges.

TOPEKA (AP) — Supporters of Kansas' judicial selection method for its highest courts told legislators Thursday that there is no need to change the process and put politics back into the way the state picks the judges.

Lawyers, businessmen, the Kansas Bar Association and the chief judge of the Kansas Court of Appeals testified before the Senate Judiciary Committee, completing the second of two days of hearings. They argued against changing the Kansas Constitution to give the governor and legislators more power over appointments to the state Supreme Court and Court of Appeals.

"This is a system that works," said Kansas Bar Association President Lee Smithyman. "This is a system that generates an excellent judiciary."

Proponents of the change had their say Wednesday, arguing that the process is too secretive and undemocratic because there is no accountability to the public. Currently, applicants are screened by a nominating commission, which picks three finalists before the governor makes the appointment. Five of the nine members of the nominating commission are selected by the Kansas Bar Association.

Smithyman said the bar's board of directors voted to approve changes to the nominating commission that would expand its size from nine to 15 members. Four would be chosen by the bar, five by the governor and six by legislative leaders.

Smithyman said he understood the impetus for the changes stems from the 2005 Kansas Supreme Court ruling against the state over school finance and a new district court ruling on the same topic on Jan. 11 that also went against the state. However, he said since that first ruling there had been more than 9,500 opinions issued by the Supreme Court and Court of Appeals, most of which did not generate any legislative or public concern to warrant changes.

Tom Malone, chief judge of the Court of Appeals, said the sitting members of the appellate court supported keeping the system in place, saying it "serves the people of Kansas exceedingly well."

"There is no evidence that anything is broken that needs to be fixed," Malone said.

His comments were in contrast to Anthony Powell, who was recently appointed by Gov. Sam Brownback to the Court of Appeals. Powell testified Wednesday that he favored changing the system to provide more transparency and accountability for judicial selections.

Under the proposed change, the governor still would make the appointments, but the judges would have to be confirmed by the Senate. The proposed constitutional amendment would go before voters if it clears the Legislature. A companion bill would create a commission that would vet the governor's selection and provide the information to the Senate for review, but the panel would only give an advisory opinion about the nominee's fitness for the bench.

Brownback, a conservative Republican and attorney, supports changing the system, even the direct election of Supreme Court justices as was the practice for nearly a century.

The switch from partisan elections was designed to drain the selection process of politics, something Kansans appeared to want after the infamous "Triple Play." In January 1957, the court's ailing chief justice stepped down and the governor, who'd lost his bid for re-election, resigned. Then the lieutenant governor, who was elevated to governor for just eight days, appointed the former governor to the court.

Supporters of Kansas' current method referenced the 1957 incident Thursday during testimony. Several said Kansas residents don't want to go back to such a system that can be influenced by politics or political favors.

Landon Rowland, chairman of Leed Bank in Kansas City, Mo., and a trustee for the Committee for Economic Development and Justice at Stake, said Kansas had a reputation for a fair, impartial and qualified judicial system. He cited results from a poll Justice at Stake conducted in Kansas that found 61 percent of those asked favored keeping the current system.

"We depend on a free market system. Small business depends on a fair and impartial judiciary," said Rowland, a former CEO of Kansas City Southern Industries.

He said people who go before a judge don't want to go to court and have to worry about whether the judge is Republican or Democrat, just that they are fair.

"It introduces the potential for mischief," Rowland said of the proposed change.

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