Dool v. Burke

ROBERT DOOL; JULIE BROWN; DONALD D. ROSENOW; THOMAS C. SCHERMULY, Plaintiffs - Appellants,

v. ANNE E. BURKE, in her official capacity as Chairman of the Kansas Supreme Court Nominating Commission;KERRY E. MCQUEEN, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission;PATRICIA E. RILEY, in her official capacity as Attorney Member of the Kansas Supreme Nominating Commission;MATTHEW D. KEENAN, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission;JAY F. FOWLER, in his official capacity as Attorney Member of the Kansas Supreme Nominating Commission;CAROL GILLIAM GREEN, in her official capacity as Clerk of the Kansas Supreme Court, Defendants - Appellees.

No. 10-3320

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Dated: September 13, 2012

(D.C. No. 6:10-CV-01286-MLB-KMH)

(D. Kan.)

ORDER AND JUDGMENT^*

Before O'BRIEN, McKAY, and MATHESON, Circuit Judges.

A group of Kansas voters, none of them lawyers, sued the attorney members of the Supreme Court Nominating Commission (Commission) and the Clerk of the Appellate Courts requesting a temporary restraining order and preliminary injunction to prevent any vacancies from being filled while this lawsuit is pending. The Commission is composed of five attorneys elected by attorneys and four non-attorneys appointed by the Governor. Appellant voters claim the selection of the Commission's attorney members violates the one person, one vote principle of the Equal Protection Clause because the franchise is closed to all but attorneys. The district court denied the preliminary requests for relief before going on to dismiss the complaint for failure to state a claim. The voters appealed from the dismissal.

AFFIRMED.

Entered for the Court

Per Curiam

O'BRIEN, J. concurring.

Kansas fills appellate court vacancies using a merit-selection system under which the governor picks from a shortlist of candidates tendered by a nomination commission. The commission is comprised of five attorneys and four non-attorneys. Non-attorney members are appointed to the commission by the governor, while attorney members are elected by resident attorneys. The effect of the system is to give Kansas lawyers disproportionate influence over the selection process.

This case presents an equal protection challenge to the election of the commission's attorney members. The challengers, non-attorney residents of Kansas, claim they must be given an equal opportunity to participate in elections for the Commission's attorney members, much as they would in elections for any other public offices. In their view, denying otherwise qualified voters the right to vote on equal terms with resident lawyers violates the Equal Protection Clause of the Fourteenth Amendment. For the reasons stated herein, I concur in the Order and Judgment entered Per Curiam.

BACKGROUND

Kansas is not alone in its use of merit selection to fill judicial vacancies. The system is employed in one form or another by more than thirty states. Sandra Day O'Connor, The Essentials and Expendables of the Missouri Plan, 74 MO. L. REV. 479, 486 (2009). What sets apart merit selection in Kansas is its genesis. Before 1958, Kansas voters chose judges by popular election, with the governor filling interimvacancies by appointment. Jeffrey D. Jackson, The Selection of Judges in Kansas: A Comparison of Systems, 69-JAN J. KAN. B. Ass'n, Jan. 2000, at 33.

Confidence in that system hit bottom in 1956 when Governor Fred Hall, defeated in his party's primary election, set his sights on the state supreme court, specifically the seat of chief justice, which was soon to be vacated by the ailing Bill Smith, a loyal supporter of Hall's. See id. at 34. Resolved to have the seat but unable to appoint himself, Hall (in cooperation with Smith) did the next best thing: he waited for Chief Justice Smith to resign and ceded the governorship to his lieutenant, John McCuish, on the condition that McCuish appoint him to fill the judicial vacancy. Id. McCuish did just that, his first and final decision in his 11-day tenure as governor. Their three-step maneuver—Smith resigns from the bench, Hall resigns the governorship, McCuish appoints Hall to take Justice Smith's seat—would be remembered, disgracefully, as the Kansas triple play.

The public was outraged. Within days a joint resolution had been introduced in the legislature calling for an overhaul of the judicial-selection process and the creation of a non-partisan judicial nomination commission. See Anatomy of a Merit Selection Victory, 93 JUDICATURE 6, 8 (2009) (remarks of panelist Greg Musil). Less than two years later, in the 1958 general election, Kansas voters resoundingly approved a constitutional amendment establishing the Supreme Court Nomination Commission ("Commission"). KAN. CONST. ART. 3, § 5. Legislation implementing the amendment followed in short order, KAN. STAT. ANN. § 20-119 et seq., and two decades later, when the legislature created the Kansas Court of Appeals, it charged the Commission withselecting nominees to fill vacancies on that court and certain trial courts¹ as well, KAN. STAT. ANN. § 20-3004(a).

The Commission is a nine-member body consisting of a chairperson (a lawyer licensed and residing in Kansas), as well as one attorney member and one non-attorney member from each of the four U.S. congressional districts. KAN. STAT. ANN. § 20-119, 20-120. The attorney members are elected by licensed attorneys residing in their respective congressional districts, the chairperson by Kansas attorneys voting at large. Id. The four non-attorney members are appointed by the governor. KAN. CONST. ART. 3, § 5. The attorney-member selection process is administered by the Clerk of the Appellate Courts. KAN. STAT. ANN. §§ 20-119, 20-120. When a seat opens on the Supreme Court or the Court of Appeals, the clerk alerts the Commission's chairperson and sends a notice of vacancy, along with a deadline for submission of applications, to eligible Kansas attorneys residing in the state. KAN. STAT. ANN. §§ 20-132, 20-3007; Patricia E. Riley, Merit Selection: The Workings of the Kansas Supreme Court Nominating Commission, 17 KAN. J. L. & PUB. POL'Y 429, 431 (2008). Once applications are submitted, candidates undergo interviews and background checks, and the Commission, which may act only by majority vote, decides which three names will be submitted to the governor. Riley, supra, at 432-34. The governor must select one of the three candidates to fill thevacancy. KAN. CONST. ART. III, § 5(a), (e); Riley, supra, at 432-34. Should the governor fail to appoint one of the three candidates within 60 days of receiving the list, the duty falls to the the chief justice of the Kansas Supreme Court. KAN. CONST. ART. III, § 5(b).

Merit selection notwithstanding, Kansas voters retain control over the tenure of the members of the state judiciary. Supreme Court justices and Court of Appeals judges stand for retention in the general election after serving for at least a year. Id. § 5(c). The same goes for trial court judges in the 17 districts that have adopted merit selection for district judges and magistrates.² Appointed judges can keep their office if a majority of those voting elect to retain them, or else the office becomes vacant and the process starts over. Id. Kansas Supreme Court justices stand for retention every six years, appellate-court judges and district judges every four. KAN. STAT. ANN. §§ 20-3006(b), 20-2902.

National experience demonstrates no timidity by voters in ending the tenure of judges standing for retention. Although incumbents regularly prevail in retention elections, victory is hardly automatic. In 2010 alone, the list of failed retention candidates included (but was not necessarily limited to) three Supreme Court justices in Iowa, two district judges in Colorado, a district court judge in Alaska, and a magistrate in New Mexico. Judicial Selection in the States, American Judicature Society, http://www.judicialselection.us/.³

DISCUSSION

A.

That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial. Reynolds v. Sims, 377 U.S. 533, 562 (1964); Wesberry v. Sanders, 376 U.S. 1, 7 (1964). That the right is comprehensive, extending beyond statewide legislative bodies to county and municipal offices, and even to smaller entities such as school boards and college trustees, is similarly beyond dispute. See, e.g., Hadley v. Junior Coll. Dist., 397 U.S. 50, 53-54 (1970); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626-27 (1969); Avery v. Midland Cnty. Tex., 390 U.S. 474, 476-77, 484-85 (1968). The question presented by this appeal is whether it extends even further, beyond traditional democratic institutions to specialized bodies like the Commission, and if so, whether the process for electing the Commission's attorney members violates the Equal Protection Clause of the Fourteenth Amendment.

The foundational voting rights decision is Reynolds, the first in a series of electoral apportionment cases to announce the principle that one person's vote should count for no more or no less than another's. 377 U.S. at 562. Reynolds concerns state legislatures, and the immediate effect of the decision was to require state legislative districts to benearly equal in population. See Branch v. Smith, 538 U.S. 254, 268 (2003). But while Reynolds requires due regard for equal protection in legislative elections, it does not address whether qualified voters are entitled to participate on equal terms in elections for non-legislative offices. See Avery, 390 U.S. at 484.

The Court answered that question in Avery, concluding Reynolds applies with equal force to officials of a county government who exercise "general governmental powers over the entire geographic area served by the body." 390 U.S. at 485. Central to the Court's holding was the idea that citizens should have a voice in the selection of the public officials...