AG Schmidt asking Kansas Supreme Court to decide appointing authority, if any

Capitol Bureau

TOPEKA, Kan. (KSNW) – Kansas Attorney General Derek Schmidt has submitted a lawsuit to the Kansas Supreme Court, asking the judiciary to solve an ongoing battle between the governor and legislative leaders.

The lawsuit essentially asks the court who, if anyone, now has legal authority to appoint a new judge to the current vacancy on the Kansas Court of Appeals after withdrawal of the governor’s first nominee.

A court decision could end the dispute between Governor Laura Kelly and Senate President Susan Wagle over how a state statute governing Court of Appeals appointments applies to the unusual circumstances surrounding the current vacancy.

This issue at hand is complicated because Kansas law (Article 3.§5.(a)(b)(d)) does not clearly point to an appointing authority, so that authority is up for grabs. Here’s the dilemma:

  • The Kansas constitution gives the governor authority to appoint nominees to fill vacancies in the judicial branch. The Kansas Senate has the power to confirm those nominees.
  • A nonpartisan committee will submit a list of candidates for appointment to the governor.
  • The governor must submit a nomination to the Senate within 60 days of receiving the list.
  • If the governor misses the 60 day deadline, the appointing authority goes to the Chief Justice of the Kansas Supreme Court.

So, problem solved? Not really.

Earlier this month, the governor withdrew her nominee after the 60 day deadline passed. The withdrawal also came before the Senate could vote on the nominee. Nonetheless, she did not miss the deadline.

Because she did not miss the deadline, the appointing power cannot go to the chief justice; however, Kansas law does not provide a contingency for when the deadline is not missed and a nomination is withdrawn.

Who has authority, then?

If you ask Governor Kelly, she’ll say the appointments statute authorizes her to make a second appointment.

If you ask Senate President Susan Wagle, she’ll say the statute shifts the appointing authority to the chief justice of the Kansas Supreme Court.

If you ask Attorney General Schmidt, he’ll say they need the Supreme Court to decide.

In the lawsuit filed today, also suggests a third possibility: That no one currently has authority to make the appointment because of a gap in the statute, and therefore the Legislature needs to amend the statute and decide how it should apply to the current unusual situation.

Here’s what the Attorney General said in the lawsuit:

“In the State’s view, the words of the statute are plain and unambiguous and the gap in the statute is obvious: [The appointments statute] simply does not address the circumstance that has arisen here,” Schmidt wrote in his filing with the court. “In drafting [the appointments statute], the Legislature apparently failed to contemplate the prospect of an appointment being withdrawn after expiration of the initial 60-day period, so it made no provision for that eventuality. The defect in the statute is one that only the Legislature can cure. … This Court should exercise restraint, decline to speculate how the Legislature might have wished the statute to address this circumstance, and instead leave to the Legislature the task of repairing the statute as it may see fit.”

However, in the event the Supreme Court concludes the current statute does authorize an appointing authority, Schmidt asked the court to make clear whether that is now the governor or the chief justice.

“We need to get somebody on the Court of Appeals,” Kelly told reporters Monday. “We just need to get that language clarified, but in the meantime, I think it’s important that we go ahead with the process.”

Meanwhile, the a seat at the Kansas Court of Appeals will continue to be vacant.

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