Courts - Kansas Choice of high court justice proceeds under legal cloud Lawsuit contends lawyers unfairly dominate the selection process

By John Hanna Associated Press Writer TOPEKA, Kan. (AP) -- Kansas moved ahead toward selecting a new state Supreme Court justice this week, while facing a federal lawsuit alleging that voters' rights are being violated because lawyers unfairly dominate the process. Nine lower-court judges and four attorneys hoping to fill the high court vacancy met a noon deadline for submitting applications to the Supreme Court Nominating Commission. The panel plans to interview the applicants Sept. 27 and 28, then submit three names to Gov. Mark Parkinson for him to choose from. Five of the nine commission members are attorneys chosen for the posts by fellow attorneys. If the governor refuses to appoint one of the finalists named by the commission, the choice falls to the Supreme Court's chief justice. The Legislature has no role. Four Kansas voters filed a federal lawsuit in Wichita last week, hoping to block the nominating commission's lawyer-members from participating in the selection of the new justice. But Supreme Court spokesman Ron Keefover said the process will go forward as planned unless a federal court intervenes. Parkinson, a Democrat who leaves office in January, said the process has eliminated politics from selecting justices. "We're coming up with our most qualified attorneys and judges who are willing to serve as appellate judges," Parkinson said at a news conference. "This is not a problem that needs to be fixed." The Supreme Court vacancy was created by the retirement of former Chief Justice Robert Davis on Aug. 3, a day before he died. The applicants for the vacancy include Court of Appeals Judges Michael Buser, Nancy Caplinger and Thomas Malone. Under Kansas law, Parkinson will have 60 days to make an appointment once the finalists are named. Voters decide every six years whether a justice is retained on the court, but since such votes began in 1960, no member of the court has failed to get a two-thirds majority. Many critics of Kansas' selection process are conservative Republicans who have been upset in recent years by rulings in abortion and education funding cases. Critics argue the process shuts out the public and makes the court less accountable to voters than it should be. According to the American Judicature Society, supreme court justices in 13 states are appointed by the governor after applicants are screened by a nominating commission, with no legislative involvement. But only in Kansas are attorneys who are selected by other attorneys a majority of the commission's members. "The problem with that is that it denies average voters a voice in selecting these important public officials," said James Bopp Jr., the lead attorney for the voters filing the lawsuit. At least three of those voters are registered Republicans. Bopp's other clients include the National Right to Life Committee and Focus on the Family. Bopp said selection processes like Kansas' let trial lawyers dominate, and "they're much more likely to produce liberal activist judges." He said the legal issue is letting a small group control the selection process, shutting out most voters. Bopp said it doesn't matter that Kansas voters approved an amendment to the state constitution to set up the system in 1958, switching from partisan elections. "Could the people vote to just have the Ku Klux Klan select the judges in the state?" he said. "There was a time in some states when that would have passed." Last year, Bopp represented three Alaska voters who challenged a similar selection process in that state. Three of the seven members of the Alaska Judicial Council are attorneys chosen by the state bar association's governors. A federal judge dismissed the lawsuit, but the decision has been appealed. In Kansas, Attorney General Steve Six will "vigorously defend" the current selection process, spokesman Gavin Young said. Six is the son of a retired Supreme Court justice. "Policy matters need to be address by the Legislature, not by lawsuits," Young said. Legislators have considered proposed changes but haven't been able to muster the two-thirds majorities necessary in both houses to put a proposed constitutional amendment on the ballot. Published: Fri, Sep 3, 2010

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