UPDATE on Court of Appeals Confirmation
May 15, 2019
In less than 40 minutes, the Kansas Senate voted down the confirmation of Judge Jeffry Jack to the Kansas Court of Appeals. This was a foregone conclusion which was reflected by the unanimous vote. The negative vote was unanimous, 0-38. The debate focused largely on the process for selecting judges in Kansas. Sen. Rucker (R-Topeka) alluded to a change in that process to bring greater transparency to picking judges. Sen. Ty Masterson (R-Andover) previously made a motion to bring SCR 1620 to the Senate floor for a vote. The concurrent resolution would switch the selection method from merit selection to an appoint/confirm model. That vote is scheduled for Sine Die.
Sen. Hensley (D-Topeka) proposed amending KSA 20-3020 to include a withdrawal provision as was previously incorporated. He said the statute is unclear and should be corrected.
Sen. Wilborn (R-McPherson) prepared a letter to the Commission on Judicial Conduct setting out grievances against Judge Jack. The letter was available for any senator to sign and sponsor.
Immediately after the final vote, Gov. Laura Kelly nominated Sarah E. Warner to fill the Court of Appeals position. Sen. Wilborn set a judiciary committee meeting for May 28th, time and location to be announced later. A vote on the confirmation will take place on May 29th when senators return for Sine Die.
News articles covering the confirmation vote:
Previously posted on May 13, 2019:
Last Friday, the Kansas Supreme Court unanimously ruled that the nomination of Judge Jeffry Jack to the Kansas Court of Appeals must be voted on by the Kansas Senate.
This decision comes after an expedited review of the nomination process to fill the Court of Appeal position vacated when Judge McAnany retired. The Court held that KSA 20-3020 does not allow the governor to withdraw a nominee once that nomination is made. The statute previously dealt with the withdrawal of a nominee, but that provision was removed when the statute was amended in 2013. The State argued that a general withdrawal provision found in KSA 75-4315b(c) was sufficient for the Jack withdrawal. However, the Court found that it could not rely upon this statute because it was not specific enough to the court of appeals confirmation statute to be binding. Furthermore, KSA 20-3020 provides only one way that an appointment can fail, and that is through a failed senate confirmation vote. The Court interpretation of withdrawal is analogous to nominees for elected office who die prior to an election. In those situations, the names had to remain on the ballot for that election.
The ruling does two things. First, it requires the Kansas Senate to vote on the Jack nomination because his withdrawal was improper. The Kansas Senate had 60 days to vote on the Jack nomination, and if my math is correct, that would mean they need to vote today, May 14th, 2019. If the senate fails to vote within the 60 days, the nomination becomes effective. The Kansas Senate anticipated this possibility and called a special meeting of the Senate to deal with it. The Jack nomination is anticipated to fail 40-0.
Second, once the Jack nomination fails, the process begins again, and Gov. Kelly may nominate other lawyers for the Court of Appeal positions. Gov. Kelly had previously nominated Sarah E. Warner for the spot, but that nomination was deemed invalid. As such, Kelly will have to re-nominate Warner or a lawyer of her choosing. It is anticipated that Kelly will nominate Warner again and request a hearing on Sine Die.
See also; https://www.wibw.com/content/news/KS-Supreme-Court-Appellate-Court-nominee-cant-withdraw-509769291.html;
See as well; https://www.salina.com/news/20190510/gov-laura-kellys-selection-of-next-court-of-appeals-judge-hangs-in-balance
Gov. Laura Kelly issued a press release as did Senate President Wagle.
See; https://governor.kansas.gov/statement-on-the-kansas-supreme-courts-decision-today/; See; https://twitter.com/SenatorWagle
One interesting fact about this case is that the KSAG was suing the Governor, Chief Justice and the Kansas Senate. Many believe this was the first time all three branches of government were named in a lawsuit.