TOPEKA — A petition filed with the Kansas Supreme Court alleges Gov. Sam Brownback abandoned a legal obligation to fill a district magistrate judge vacancy in southwest Kansas and intends to await outcome of the August primary to determine whether to make the appointment.
Election-year gyrations prompted three judges to seek a Supreme Court order against Brownback to force action on the opening. Court records show the Republican governor, who purportedly skipped a statutory 90-day deadline for naming a new magistrate, decided he wouldn’t consider the matter again until reviewing outcome of the Aug. 2 primary election.
“The law is very clear. The governor shall make the appointment. He’s abandoned his duty,” Pedro Irigonegaray, a Topeka attorney for the three judges, said Monday. “The governor, once again, is placing a political interest above the law.”
Brownback’s top staff lawyer indicated the Kansas chief executive was in possession of constitutional and statutory authority to postpone action. The governor’s office hasn’t formally responded to the petition.
Nine Republicans — no Democrats — filed as primary candidates in the 26th Judicial District to replace District Magistrate Judge Tommy Webb, who presided in Haskell County from 1988 until retirement Feb. 19.
The all-GOP contest would determine the presumed winner of the November general election, absent a robust write-in candidacy.
Brownback could appoint victor of the primary or, if the governor disliked that person, someone else could be given the post temporarily. He could sustain refusal to make an appointment and keep the slot vacant until installation of an elected magistrate in January.
“The governor has said he will defer to the voters of Haskell County,” said Eileen Hawley, spokeswoman for Brownback. “Once the voters have spoke, the governor will revisit the vacancy.”
Brant Laue, chief counsel to the governor, confirmed Feb. 5 in a letter to Chief Judge Bradley Ambrosier that notice of Webb’s impending resignation had been officially received by the governor. Laue said at that time an interim appointment would be made within a 90-day window in compliance with state law because the post was a partisan, elective position.
Letters signed by the governor were sent May 25 to applicants for the vacancy, indicating he no longer wanted to make the appointment in advance of the primary.
In correspondence with Irigonegaray on June 15, Laue said the governor concluded the nature of the position, number of candidates and other issues meant “proper exercise of his constitutional and statutory authority” allowed Brownback to delay.
Ambrosier and District Judges Linda Gilmore and Clinton Peterson filed their petition last week with the Supreme Court in a bid to mandate the governor make the appointment. That document argued Brownback failed to perform a “clearly defined duty.”
“This case also presents a matter of great public interest and concern, as it involves a decision by the state’s chief executive to intentionally disregard a duty imposed upon him by statute,” the filing said.
Ambrosier said in an affidavit accompanying the petition he personally was aware Brownback met the statutorily provided timeframe when dealing with a previous magistrate vacancy in Morton County and a district judge opening when Judge Kim Schroeder was appointed to the Kansas Court of Appeals.
Webb’s departure left four magistrate judges in a six-county area of southwest Kansas, while state law mandates five magistrate judges.
“The vacancy at the magistrate judge position has adversely affected all of the judges in the district,” according to the judges’ filing with the Supreme Court.
The three district court judges named in the legal action have driven more than 2,100 miles to ensure residents of Haskell County had adequate coverage in court. Inconsistent schedules for that court made it difficult for the Kansas Highway Patrol to schedule activities, the petition said.