By Rachel Whitten/KansasReporter

Some Kansans are not satisfied with the way state judges are chosen, and they’re doing something to fix the process.

Not only was a lawsuit filed last week in federal court in Wichita, but separately, a grassroots petition effort has put a question on the ballot for the Nov. 2 election in Atchison and Leavenworth counties to change their judicial selection process.

The part of the process that both the lawsuit and the ballot question challenge is the fact that   Kansas nominating commissions, which are formed to presenting three nominees for each position to the governor for appointment, are partly made up of lawyers elected by the Kansas Bar, not by Kansas citizens.

The lawsuit will be argued by James Bopp, an election law and campaign finance lawyer from Terre Haute, Ind., representing four Kansas voters, Bob Dool and Thomas Shermuly of Wichita, Julie Brown of Olathe and Donald Rosenow of Clay Center, who are plaintiffs in the suit.

Bopp is seeking a temporary restraining order to stop the five members of the Kansas Supreme Court Nominating Commission who were elected by lawyers in the Kansas Bar from participating in the selection of the nominees for the open state Supreme Court position. The restraining order has not yet been granted.

Separately, voters in Kansas’ first judicial district, which includes Atchison and Leavenworth Counties, held a petition drive to change the way judges in their district are put on the bench. Currently, a local nominating commission, that has four of its nine members elected by lawyers, is in charge of presenting nominees to the governor. Voters in those counties will get the chance to decide if they want to elect their judges in the future by partisan election, just like the process in 52 other Kansas counties.

“The appointment system denies the citizens of this district the right to participate equally in the selection of our judges,” said Donna Gillett, a Leavenworth resident who organized the petition drive.

Gillett said she became interested in the issue after listening to University of Kansas law professor Stephen Ware speak about Kansas’ judicial selection process at a public event.

Gillett, as well as Bopp, contend that the current method of selection by way of the nominating commission violates the U.S. Constitution.

“[It] violates the 14^th amendment of the U.S. Constitution, dealing with equal protection of the law,” Gillett said. “‘No state shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws. In other words, just because one is occupied as a lawyer, his vote should not count for more than another citizen’s vote, when it comes to who will be placed in any public office.”

Bopp said that when Kansas voters ratified an amendment to the Kansas Constitution in the 1950’s to establish judicial selection by a nominating commission made up partly of lawyers elected by the Kansas Bar, it violated the U.S. Constitution.

“If the Kansas Constitution said that the AFL-CIO is going to select judges, or the Right to Life or KKK or whoever, it would be perfectly obvious that would be wrong and this is equally wrong,” Bopp said. “There is nothing special about lawyers, and they’re more conflicted because their bread and butter is personal injury, and judges determine those cases, so many lawyers have an interest in who is the judge.”

If the case wins in federal court, only the members of the Supreme Court Nominating Commission who were elected by lawyers will be prevented from participating in the nomination process. If that happens, the four members who were appointed by a governor can continue the selection process. It will then be up to the legislature to either select a new way of appointing members to the commission, or try to repeal the constitutional amendment that mandates the nominating commission.

“There’s a lot of different ways of doing it that are constitutional. If the governor appointed all the members of the commission, or the state legislature appointed members; the legislature and the governor are all accountable to the people and they could certainly come up with a commission that was constitutional,” Bopp said.

For now, it’s wait and see, both for Bopp and Gillett. Bopp and his firm are waiting for a federal judge to grant the temporary restraining order against lawyer elected members of the nominating commission, and to set a date for a hearing for arguments. Gillett will wait and see what happens on Nov. 2 in Atchinson and Leavenworth County voting booths.

“We the people get to vote on who represents us in the legislature and executive branches of government, and we need to extend that to the judicial branch by voting yes to elect judges,” Gillett said.

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