September 18, 2012
Tenth Circuit Rejects Challenge to the Kansas Judicial Nominating Commission
A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause. The ruling affirms a lower court decision and means that the procedure remains in place. We posted on the complaint and motion for preliminary injunction here.
The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts. The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large. The non-attorney members are appointed by the governor.
Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process. The governor then selects the appointee to fill the vacancy from among those on the short list. Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.
The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims.
The Tenth Circuit disagreed. In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.
Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body." Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.
Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others. Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.
Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).
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