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Imbalance in selection process for Kansas Court of Appeals Judges?

By   /   March 10, 2011  /   2 Comments

[Updated 4/15/2011].  Seven Democrats, Five Republicans, One Independent.

This political makeup of the Kansas Court of Appeals concerns State Rep. Lance Kinzer (R, Olathe).  Kinzer introduced legislation for the last five years in the Kansas House to change how Court of Appeals judges are selected.  

A constitutional amendment is required to change how Kansas Supreme Court judges are selected, but the legislature can change how Court of Appeals judges are chosen.

“The reality is Kansas has a judicial selection system that is unbalanced and provides a greater amount of control than is reasonable to the Bar,” according to Kinzer.

Trend in Voters by Party in Kansas

Kinzer said confidence in our judicial system demands an open, transparent system where citizens who are politically accountable are responsible for the appointment process.

Political Party Makeup of Kansas

Kansas Watchdog analysis last year showed political party affiliation in Kansas does not change much over time, with about 45 percent Republican, 27 percent Democrat and 27 percent Unaffiliated (independent) voters.

Political Party Makeup of Kansas Court of Appeals

Democrats now hold almost 54 percent of Kansas Court of Appeals seats; 27 percent of Kansans are Democrats.

The Kansas Court of Appeals has had several recent changes. On Jan. 7 Justice Nancy Moritz moved to the Kansas Supreme Court leaving a second vacancy in the Court of Appeals.  On March 1 Justice Karen Arnold-Burger was sworn in to fill one of the vacancies.

On April 15 Gov. Sam Brownback appointed David E. Bruns to the Court of Appeals.

The other vacancy will be filled soon when Gov. Sam Brownback selects one of three names forwarded to him by the nomination commission.

On Feb. 8 Justice Tom Malone changed his affiliation to Unaffiliated after having been a Democrat since at least 2002.  Malone declined to comment about this change through an inquiry via Kansas judiciary spokesman Ron Keefover.

The table below shows a summary of the current political makeup of the Kansas Court of Appeals.

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// Kansas Court of Appeals: Political Parties and Political Donations

Note:  The 3/10/2011 version of the above table incorrectly showed a $2,500 contribution as reported by Open Secrets  from Steve Leben to Kerry Patrick for Congress in 1992.  The value should have been $250.  The contribution limit in 1992 was $1,000.

Party Affiliation InformationKansas VoterView and voter registration files from the Kansas Secretary of State (2002-2010)

Political Contribution Information  Sources:

Kinzer said the current system is producing judges who are qualified, but Kinzer said the current system will not consider in a serious way “a whole host of folks” who are qualified because of the extent of control by one particular group.  According to Kinzer the result is a “lack of intellectual diversity” in the judiciary.

Hearing in the House

Kinzer likes the Federal judicial selection process and wants Kansas to move in that direction.  According to Kinzer, confidence in the judicial branch demands people have a voice in the process through their elected representatives.  Kinzer sees the elected governor as being too constrained by the current process.

Kinzer, who is the chair of the House Judiciary Committee, recently held a hearing for his HB2101 bill, “Court of appeals judges appointed by the governor, confirmed by the Senate; eliminating the nominating commission for the court of appeals appointments.”

Keith Esau, 3rd District Republican Chair, gave his views to the House panel about the process of picking the group that picks the judges:

As a typical citizen of Kansas, I get an equal vote with everyone in Kansas regarding who will be Governor. The Governor picks four of the nine selection committee members and in this selection, my vote counts equally with everyone in the state.

As a non-attorney however, I have no voice in the other five committee members. My neighbor who is an attorney has a voice in two members, the Chair of the selection committee (who must be an attorney), and a member from our congressional district (who must also be an attorney). The remaining three members are also chosen by attorneys in Kansas within the other three congressional districts.

“This [process] seems biased toward the Democrats.” according to Esau.

Kansas Republican Party attorney Clay Barker, who spoke at the hearing, expressed concern that some attorneys may not understand the election process for the judicial nominating commission.  Barker said “most lawyers don’t participate in this process,” and presented numbers to back up his claims.

Kansas Watchdog articles documented the response rate in recent Supreme Court Nominating Commission elections where only Kansas Bar members could vote:

Barker provided Kansas Watchdog an E-mail with numbers he received from a clerk in the Kansas Judiciary showing the breakdown of Bar members by congressional district:

Number of Kansas Bar members by Congressional District



1st 1,041
2nd 2,207
3rd 4,238
4th 1,791
Total 9,277

Because of the differences in Bar membership by congressional district, one vote in the 1st Congressional District in a selection commission contest appears to have almost four times the weight as one vote in the 3rd congressional district.

The number of attorneys in the 3rd congressional district is so large because of the proximity to Kansas City, MO and attorneys practicing in both states.

Will there be a Hearing in the Senate?

Kinzer says “the bill is not scheduled for a hearing for the balance of the session” in the Senate.  “It appears that Senator [Tim] Owens made a decision not to have hearing … I would presume he is not supportive of the bill.”

Senator Owens has not responded to E-mail and phone requests for comments about the bill and whether or not he plans to hold a hearing in the Senate Judiciary Committee.

Response from Democrats about HB 2101

Kansas Watchdog invited comments about HB 2101 from Kenny Johnston, Executive Director of the Kansas Democratic Party.

Comments about HB 2101 were solicited from State Rep. Janice Pauls and State Senator David Haley, the minority members of the House and Senate Judiciary Committees.

As of this writing no comments have been received from Kansas Democrats about HB 2101.

Judicial Financial Disclosure Reports for Kansas Court of Appeals (Reports from 2009 filed in 2010)


Contact: Earl F Glynn, [email protected], KansasWatchdog.org

Reprinting: Kansas Watchdog is a free wire service and we welcome reprinting and only ask for attribution and notification. If you’d like to reprint this story we ask that you e-mail the author with the date the story will run and the outlet name.


  • rick adams

    According to you 45% of Kansans are Republican and over 46% of Kansas Court of Appeals seats are Republican.

    Sounds about right.

    Also sounds like a great reason to not bring politics into the judicial system which is what you are trying to do.

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