KS Supreme Court: Appellate Court nominee can't withdraw

Published: May. 10, 2019 at 4:39 PM CDT
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Asked to decide who gets to pick the next nominee for the state’s Court of Appeals, the Kansas Supreme Court says no one – at least, not yet.

On Thursday, attorneys for the Governor’s Office and the Kansas Senate made their cases to the state’s highest court, asking them to decide if Gov. Laura Kelly or Chief Lawton Nuss got to choose. The dispute arose after Kelly withdrew her appointment in March of Labette County District Judge Jeffry Jack because of his political tweets in 2017.

The Democratic governor argued that she has the authority under a 2013 law to submit another nominee to the Republican-controlled Senate for potential confirmation. Senate President Susan Wagle (R-Wichita) says the next appointment goes to Supreme Court Chief Justice Lawton Nuss.

Less than 30 hours later, the Justices said it doesn’t matter who gets to pick a nominee right now, because neither Kelly nor Jack had the power to withdraw the appointment and the 60-day clock for the Senate’s confirmation vote is still ticking.

"This court will not read a statute so as to add that which is not readily found in the language," Justice Dan Biles wrote for the court. "We will not do so in this case, even if the policy reasons are seductive."

With time running out following the March nomination, Wagle's office confirmed to 13 NEWS that state senators would return to Topeka on Tuesday to act on Jack's nomination.

"Next week, the Kansas Senate will return to Topeka to solve this issue created by Governor Kelly,” Wagle said, accusing the Governor of mishandling the nomination and wasting taxpayer dollars. She described it as "just another display of her incompetence as governor."

Kelly appears to welcome their return and the likely rejection of her original nominee, saying she "encourage(s) the Senate to act swiftly to vote down the jack appointment next week."

Kelly says she intends to appoint Sarah Warner to fill the vacant Appellate seat after Jack is voted down.

"It's time to move forward and fill this vacancy with one of the brightest lawyers in our state," she continued. Warner, an attorney out of Lenexa, had been tapped by Kelly as the nominee to replace Jack late last month, a week after Attorney General Derek Schmidt asked the high court to settle the nomination issue.

Schmidt, who had requested the court expedite its decision, said he was grateful the Court settled the matter so quickly, so the new Appellate Court judge, whomever it was, would not have to assume office under "a cloud that would call into question the legitimacy of his or her decisions."

"Going forward, I encourage all involved to carefully adhere to the process in the appointments statute so future disputes of this sort can be avoided,” Schmidt.

As the person who would select the nominee should his fellow Justices decide in favor of the Senate's position, Chief Justice Lawton Nuss did not take a position on the matter, the Court noted its statement announcing the decision.