The Sedgwick County district attorney rejected Thursday the Kansas Senate president's complaint alleging the state nominating commission vetting applicants for a Kansas Supreme Court vacancy violated the open meetings law during deliberations and voting.
District Attorney Marc Bennett, called in to referee the dispute by the attorney general of Kansas, said the Supreme Court Nominating Commission didn't run afoul of the Kansas Open Meetings Act as alleged by Senate President Susan Wagle, a Wichita Republican who previously tangled with Democratic Gov. Laura Kelly on judicial selection.
"There is no violation of the Kansas Open Meetings Act," Bennett said at the conclusion of a 15-page investigative summary.
The nine-member nominating commission had released the signed ballots cast during a public meeting in October that resulted in forwarding three nominees to Kelly. She holds authority to make the appointment, likely to occur in December. The recommendation listing the three finalists was affirmed by the commission on an 8-0 vote with the chairman abstaining.
The Kansas Open Meetings Act complaint submitted by Wagle, a critic of the commission and a candidate for U.S. Senate, asserted the process was flawed because the commission engaged in four rounds of voting on applicants with written ballots and that these individual votes weren't immediately disclosed at the meeting. That constituted "secret" voting under state law, Wagle said, and the commission's preferences ought to be set aside.
Mikel Stout, a Wichita attorney and chairman of the nominating commission, said before the D.A.'s ruling the panel's selection process could be considered clunky but shouldn't be viewed as improper.
"We ended up with three great nominees however we got there," Stout said. "There was nothing hidden about what we did. We have every commissioner's vote on every round."
The commission considered 19 applicants and recommended the Democratic governor choose either Dennis Depew, a deputy attorney general; Steven Obermeier, assistant solicitor in the attorney general's office; or Evelyn Wilson, chief judge of the Shawnee County District Court.
"Because two of the three nominees are employees of the office of the attorney general, we have a conflict of interest and cannot handle this matter," Schmidt said. "The Shawnee County district attorney also has statutory authority to enforce the KOMA in Shawnee County, but because the third nominee is the current chief judge for the Shawnee County District Court, I thought it inappropriate to refer the complaint to him."
Under state law, Schmidt said, the deadline for a Kansas court to intervene by setting aside action by the commission would have expired Friday.
Wagle said Oct. 18 that voting by the commission should be voided because preferences of members weren't publicly voiced for members and the public to hear during the meeting as each round of voting occurred. Instead, members' written votes were counted and cumulative totals shared aloud as the commission worked toward consensus.
"Each commissioner voted by secret ballot and neither the public nor any individual commissioner was able to ascertain how each individual voted. We only saw a total tally after each of the four rounds. That’s clearly not how the Open Meetings Act is intended to work," Wagle said.
Interviews conducted by the nominating commission, as well as the panel's deliberations, were open to the public.
Wagle is among legislators who object to the nominating commission, especially the choosing of a five-person majority by the legal community. Kansas attorneys select one person from each of the state's four congressional districts to serve on the panel. The state's governor appoints four members. The chairman of the commission is picked by lawyers in a statewide vote.
Kansans for Life, a lobbying organization opposed to abortion, denounced nomination of Wilson to the Supreme Court vacancy created by retirement of Justice Lee Johnson in September. The organization objected to Wilson because of her husband's political contributions to politicians supportive of abortion rights.
Wilson, of Topeka, has been a district court judge since 2004 and the district's chief since 2014. She was a partner in a Topeka law firm from 1992 to 2004 and in private practice in Oberlin for seven years.
Depew, a Neodesha resident, has worked for the attorney general since 2015. He is chief of the civil litigation division. Previously, he was in private practice for 32 years.
Obermeier, of Olathe, has served as assistant solicitor general for the attorney general since 2017. He was an employee of the Johnson County District Attorney's office for 31 years.
The commission's voting resulted in clear support for Depew. He received nine votes in the opening round accompanied by six votes for both Obermeier and applicant Tom Malone, a member of the Kansas Court of Appeals. The second round produced a comparable result, and consensus formed to nominate Depew. A third round resulted in a tie among Obermeier, Wilson and Melissa Standridge, a judge on the Court of Appeals.
The final round delivered six votes to Obermeier, five votes for Wilson and four votes to Standridge. Robert Hayworth, a nominating commission member from Stilwell, made the unanimous motion to nominate Depew, Obermeier and Wilson.