President's Message

• Publication year: 2013
• Pages: 06
• Citation: Vol. 82 No. 2 Pg. 06

President's Message No. 82 J. Kan. Bar Assn 2, 06 (2013) Kansas Bar Journal February, 2013

From the President

Lee M. Smithyman

Merit Selection Endorsed by the Tenth Circuit

As the legislature now considers merit selection alternatives to appoint appellate court judges and justices, the recent decision of the Tenth U.S. Circuit Court of Appeals endorsing the merit selection system is instructive. Four months ago, in the unpublished opinion of Dool et al. v. Burke et al., 2012 WL 4017118, the Tenth Circuit affirmed a district court decision endorsing the present Kansas merit selection panel composition of five attorneys and four non-attorneys. Speaking for the majority, Judge Terrence O'Brien stated:

Forged in the ashes of the Kansas triple play, the Commission is designed to ensure the conduct of the executive branch does not threaten the integrity of the judicial branch. Its charter concerns the distribution of power within and among the various organs of government; it is a structural body, not a representative one.

If anything, respect for the democratic process cuts against the challengers' position, which if adopted would frustrate the will of the Kansas people, as embodied in the state constitution. The constitutional amendment creating the Commission has been in place for more than half a century; its vintage a testament to the state's time-honored commitment to judicial independence. (Id. at 14.)

The opinion also addressed the need for attorneys on the panel:

Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation....The Commission's role in choosing from the Kansas legal community the three most qualified applicants for a judicial vacancy has a disproportionate impact on the bar relative to the general population....The Commission serves a limited purpose and affects attorneys more than others. (Id. at 17-21.)

The court's reasoning reinforces why merit selection has been a topic in the last three president's columns. While judicial appointments greatly affect our citizens, they have a disproportionate impact on the bar. Lawyers, more than any other entity within our society, understand the importance of good and impartial justice. Timely decisions, well reasoned and well presented, guide the district courts and lawyers in daily practice. Court funding reductions and open...