Swearing in of counsel coming into question
TOPEKA (AP) — Gov. Sam Brownback's chief spokeswoman said Tuesday that the Kansas Senate's top Democrat has no grounds to suggest the swearing in of Brownback's chief counsel as a state appeals judge is being delayed to avoid a November 2014 statewide vote on whether the appointee stays on the bench.
Senate Minority Leader Anthony Hensley questions why Caleb Stegall isn't scheduled to take his seat on the Court of Appeals until Jan. 3. The GOP-dominated Senate confirmed Stegall's appointment to the state's second-highest court on Sept. 4, during a special legislative session that Brownback called to repair Kansas' first-degree murder sentencing law.
However, Brownback's office pointed to a letter that Kansas Supreme Court Chief Justice Lawton Nuss wrote to the Republican governor and top Republican legislators in late August, telling them the Court of Appeals would need additional money if the new judge joined it later this year.
Court officials have said the timing of Stegall's swearing in was dictated by the budget and a need to remodel space at the Kansas Judicial Center near the Statehouse for a new judge's suite.
"Mr. Hensley's comment that there is some ulterior motive in the timing is unfounded," Brownback spokeswoman Eileen Hawley said.
Even after being confirmed, Court of Appeals members are on the ballot every four years, with voters asked whether each should remain on the bench. A new judge faces such a vote in the first general election after a full year on the court.
If Stegall took his seat before Nov. 4, he'd face his first statewide retention vote in the November 2014 general election. But with his swearing in set for next year, he won't be on the ballot until November 2016.
"Is it possible that what they're trying to do is to distance themselves from the controversial nature of the appointment itself?" Hensley of Topeka said Monday during an interview with The Associated Press. "That's exactly what it suggests to me."
Brownback's nomination of Stegall to a new Court of Appeals seat received an unusual amount of attention partly because of Stegall's ties to the governor.
The appointment is also the first under a law that has the governor name Court of Appeals judges, subject to Senate confirmation. It took effect in July.
Under the previous system, still in place for Kansas Supreme Court justices, a nominating commission screened applications and named three finalists. Legislators had no role after the governor's appointment.
Both systems require retention elections, however.
When ending their regular, annual session in June, lawmakers along with the judicial branch didn't expect a confirmation vote on a new Court of Appeals nominee to occur until early next year — and they budgeted accordingly.
Judicial branch spokeswoman Helen Pedigo said the timing of the swearing in wouldn't be an issue "but for the special session."
Hensley said he already considers Stegall a member of the court because the Senate confirmed him. Stegall plans to remain on Brownback's staff until January.
Also, Hensley noted that Brownback and other conservative Republicans who supported changing the Court of Appeals selection process argue the new method is accountable to the public because elected legislators are involved.
"Then, why shouldn't he stand for retention as soon as possible?" Hensley said of Stegall.
A similar issue arose in 2005, when Justice Eric Rosen joined the Kansas Supreme Court. Then-Democratic Gov. Kathleen Sebelius announced Rosen's appointment in early October 2005, but he wasn't sworn in for another seven weeks, until mid-November. Instead of facing his first retention vote in November 2006 — with GOP conservatives' criticism of Supreme Court decisions on funding for public schools still fresh — Rosen was on the ballot two years later.
At the time, then-Kansas House Speaker Doug Mays, a Topeka Republican, suggested the timing was designed "to get around the will of the people," calling it "fundamentally wrong." Democrats publicly voiced no qualms.
Meanwhile, retention elections haven't proven to be much of a hurdle to judges staying on the bench since the system replaced partisan elections in 1960. No Supreme Court justice or Court of Appeals judge has failed to receive 62 percent of the vote since.