Friday, August 27, 2010
A group of Kansans this week challenged the selection and appointment process for Kansas Supreme Court justices under the Fourteenth Amendment Equal Protection Clause. Plaintiffs argue that the process deprives them of their fundamental right to vote and seek to halt the process for the replacement of Chief Justice Robert Davis, who retired on August 3 and passed away on August 4. Here's the complaint; here's the motion for a temporary restraining order and preliminary injunction.
The process, set out in Article III, Section 5, of the Kansas Constitution, provides that the governor shall appoint a replacement from among three persons nominated by the nominating commission. If the governor fails to make the appointment within 60 days of the nomination, the chief justice of the supreme court makes the pick.
Here's the (non-attorney) plaintiffs' problem: the nominating commission consists of nine members, five of whom, including the chief, are elected only by Kansas attorneys. (Non-attorneys get to elect the other four members.) Kansas Const., Article III, Section 5(e).
According to the motion, "[a]s a result, Plaintiffs are denied the franchise in the elections for the Commission members and their participation in the selection of state judges is much inferior to that of attorneys."