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Members knock judicial process

By JOHN HANNA

Associated Press

TOPEKA -- The state's judicial nominating commission was biased against conservative candidates for the Kansas Court of Appeals and finally nominated one in an effort to appease legislators trying to change the selection process, a commission member said Tuesday.

In a rare move, two commission members publicly criticized the nominating process during a meeting Tuesday of the House Judiciary Committee.

Felita Kahrs, Topeka, told legislators she believes the panel was biased, and Bob Hayworth, Stilwell, said claims the nominating process isn't political are disingenuous.

Both were appointed by conservative Republican Gov. Sam Brownback and are among four non-lawyers serving on the nine-member commission.

Two Democrats on the committee later said they are skeptical of claims of problems in the judicial process.

Kahrs, a manager for an educational services company, said the selection process is political and unfair. She cited the commission's discussions of applicants for two recent vacancies on the Court of Appeals.

Hayworth, the chief operating officer for an insurance brokerage and consulting firm, was less specific but said in his written testimony the commission's deliberations late last year "quickly morphed into areas that were suspect to me."

The House committee is reviewing multiple proposals but plans to debate measures to have the governor appoint and the state Senate confirm appellate court members. Brownback has said he'd support the idea -- or changing to electing Court of Appeals judges and Supreme Court justices.

The commission screens applications for the Court of Appeals and the Kansas Supreme Court, picking three finalists for each vacancy. The governor then makes the appointment, with no role for the Legislature. Kahrs said during the most recent deliberations, "our discussions became extremely heated and sometimes even hostile" over conservative applicants.

"I witnessed disdain for these candidates by some of the commission members," Kahrs told the House committee. "Listening to these things, I was really quite shocked at what I was hearing."

The commission's four non-lawyer members are appointed by the governor, while the five lawyer-members are chosen by fellow lawyers, including the commission's leader.

Critics contend the makeup biases the selection process toward well-connected, centrist or left-of-center attorneys favored by the Kansas Bar Association. But supporters argue the process minimizes political considerations and focuses on candidates' legal skills and professional demeanor, ensuring strong appellate court members.

Commission Chairwoman Anne Burke, an Overland Park attorney, did not immediately return a telephone message left at her office but submitted written testimony to the House committee praising the current process as rigorous and fair. Last week, she told a Senate committee that the process "searches out the most qualified."

Rep. Jim Ward, a Wichita Democrat and an attorney, noted that some legislators have pushed to change the judicial selection process for seven or eight years and said participants have consistently testified that it ignored political considerations.

As for Kahrs' criticism, Ward said, "Until today, I've never heard any of that kind of comment."

Rep. Annie Kuether, a Topeka Democrat, noted Kahrs and Hayworth are Brownback appointees -- and that Brownback favors change.

"I'm rather skeptical," she said.

Brownback's chief counsel, Caleb Stegall, applied for both vacancies on the Court of Appeals, as did Tony Powell, a former conservative Kansas House member who served eight years as a Sedgwick County District Court judge.

Stegall wasn't nominated for either vacancy. Powell was a finalist for one vacancy, and Brownback appointed him to the appeals court.

Kahrs said that during the commission's discussion of the second vacancy, there was a "shift" toward an unnamed conservative candidate.

"I honestly felt like I was in the Twilight Zone because of this change," Kahrs said. "One of our commission members said to all of the commissioners -- reminded us -- that this whole process is in danger of reform and that to not send a conservative name to the governor this second time would be very unwise."

Kahrs also said one candidate for the vacancies was "immediately dismissed" by a strong majority of the commission "because of his affiliation with the governor."

Most proposals before the House committee would amend the Kansas Constitution, because it spells out how the Supreme Court's seven justices are to be selected. A constitutional change must be adopted by two-thirds majorities in both legislative chambers and approved by a simple majority of voters in a statewide election.

Kansas' current process resulted from a constitutional change adopted by voters in 1958.