Gov. Laura Kelly's administration entered negotiations with legislative leadership staff to draft a bill resolving the simmering dispute about who possesses authority to make a replacement nomination to the vacancy on the Kansas Court of Appeals.
Withdrawal of Kelly's initial pick at close of a 60-day deadline prompted Senate President Susan Wagle, R-Wichita, to argue the Democratic governor forfeited the opportunity to select a nominee. Wagle said Kansas law left the duty to Kansas Supreme Court Chief Justice Lawton Nuss. However, Kelly said her reading of the statute placed the task at her feet.
"The governor’s staff is in discussion with legislative leadership staff on language to clarify the statute," Ashley All, a spokeswoman for Kelly, said Monday. "We’re hopeful we can come to a consensus soon."
An unscientific survey of 10 House and Senate members revealed a slim majority preferred a legislative fix, with a couple siding with the governor and an equal number undecided.
Attorney General Derek Schmidt, serving in the role of mediator, said there were two avenues for resolving the judicial nomination standoff -- one political, the other judicial. First, he said, the House and Senate could send the governor a bill clarifying the law in Kansas. Or, the attorney general said, everybody could go to court.
The Republican attorney general viewed as "plausible" the perspective of Kelly's legal counsel, who believe she retained power to select a nominee after backlash about District Court Judge Jeffry Jack's ill-advised posts to social media led to his withdrawal
On the other hand, Schmidt said, a court could find Wagle justified in arguing passage of the deadline meant Nuss ought to handle the nomination.
"As attorney general," he said in a letter to the governor, "I have no particular preference whether the governor or chief justice now makes this appointment subject to Senate confirmation. I simply want the law to be followed correctly. And, of course, I do have a strong interest on behalf of the legal interests of the state and our citizens in ensuring the correct appointing authority is chosen so the legitimacy of the next judge will be beyond dispute."
He suggested the state reach a "definitive answer" on how who possesses the authority and duty to make a new appointment to the Court of Appeals.
Rep. John Barker, the Abilene Republican and chairman of the House Federal and State Affairs Committee, said the Legislature should work through the issue and send a bill to Kelly. The Kansas Supreme Court was a court ruled by the Kansas Constitution, he said, while the legislative branch could alter operations of the Kansas Court of Appeals.
"It was created by the Legislature, the Court of Appeals, and the Legislature should address the issue," Barker said.
Rep. Annie Kuether, D-Topeka, said she also assumed the Legislature was the best suited to address the problem.
Sen. Dinah Sykes, D-Lenexa, said she would prefer the Legislature not get entangled in the dispute.
"I'd like to hear all the arguments. Both sides," said Sen. Dennis Pyle, R-Hiawatha.
Kelly had 60 days from the time of Judge Patrick McAnany’s vacancy, or until March 15, to nominate a replacement. From three finalists, the governor chose Jack, who was placed on the district court in southeast Kansas in 2005 by Gov. Kathleen Sebelius.
He withdrew his nomination March 19, at Kelly's request, after criticism by Wagle of Jack's profane and coarse criticism of GOP conservatives on Twitter.
The governor said she would reopen the search for a Court of Appeals judge and submit a new nominee to the Senate "for review and confirmation, prior to the end of the legislative session."