Keep merit-based judicial selection in Kansas
In early January, there’s a good chance that the Kansas Legislature will consider a proposal to scrap the merit-selection system that has been used to select Kansas appellate judges since 1958, when Kansas voters adopted it by constitutional amendment.
The change is most likely to start with the court I sit on — the Kansas Court of Appeals, which hears most of the state’s appeals. The Kansas Supreme Court, which reviews our work on request while also handling some appeals directly (like death-penalty appeals), hears fewer cases, though it certainly hears some very important ones.
Altering the way judges are selected is an important change, so it’s crucial to ask: Why do it?
Why begin with the Court of Appeals is the easy part — our court was created by statute in 1977 and can be changed by a majority vote of the Legislature. The Kansas Supreme Court was established by the Kansas Constitution, so its selection system can only be changed through a constitutional amendment. That requires a two-thirds majority in the Kansas House and Senate, followed by voter approval.
So why change the selection system for the Court of Appeals? I’ve asked some legislators whether they’ve ever heard a complaint about our court. I haven’t heard one yet. We handle about 1,800 cases a year, issuing written opinions in about 1,200 of them. Our decisions are timely, and we do our best to get the cases right. We must hit it right quite a bit; the Kansas Supreme Court over the past decade granted only about 10 percent of the requests for review, and in many of those cases, our decision was approved.
Rather than a reflection on court quality, the reason to change seems political. The Kansas Supreme Court’s 2005 decision on school finance ruffled feathers, and some other decisions may have too. But the merit-selection system was designed specifically to limit — to the greatest degree possible — the influence of politics on judicial selection. And we want the judicial branch of government to be out of the political realm as much as possible; we rely on courts and judges to protect our constitutional rights, even when that may be unpopular at a given moment.
So do judges selected by merit selection — in Kansas or elsewhere — do a worse job in some way? That could be a reason for change. But a survey of attorneys and company managers at large businesses says that judges in Kansas and other merit-selection states are among the best in the country.
Specifically, the U.S. Chamber of Commerce surveyed attorneys at businesses with at least $100 million in annual revenues, asking a series of questions designed to determine the quality of the state’s judges and — in the opinion of these business leaders — whether the state’s “lawsuit climate” was reasonable and balanced. This year, Kansas ranked fifth overall, and four of the top five states use merit-selection systems for their appellate judges. For the specific questions about Kansas judges, these business attorneys ranked Kansas judges in the top ten states in all categories — impartiality, competence, and fairness.
I don’t mean to suggest that the only way to evaluate Kansas judges is to ask business leaders. Their views are only one indicator. But the politicians who are seeking to change the system also tend to associate themselves with the Kansas Chamber of Commerce and business interests. So if businesses that operate nationally recognize the Kansas courts as among the nation’s best, we must again wonder about the real issue here.
So when you see proposals this January to change the way appellate judges are selected, ask: What’s the problem we’re trying to fix? Is this the best way to do it? And shouldn’t the decision be one for the voters to make, given that they chose the present system?
Steve Leben, of Fairway, has been a member of the Kansas Court of Appeals since 2007. He served as a district judge in Johnson County from 1993 until 2007.
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