Kansas Attorney General explains rationale behind involving Kansas Supreme Court in Court of Appeals appointment dispute

With oral arguments now having been scheduled before the Kansas Supreme Court in the flap over who has the authority to appoint a judge to the Kansas Court of Appeals, whether or not Kansas Governor Laura Kelly ran out of time or if she can appoint again after the withdrawal of the appointment of Judge Jeffry Jack over social media posts he made, Kansas Attorney General Derek Schmidt explained why he asked the Court to take up the case.

“There are legitimate, good faith differences of opinion on what’s supposed to happen next,” said Schmidt. “The reason we care at the Attorney General’s office on behalf of the State, not on behalf of the Senate, or the Governor, or the Senate President or the Chief Justice, but on behalf of the State, is that, if people guess and get it wrong, what that means is, a judge would ultimately be seated on the Court of Appeals whose legitimacy is subject to challenge in every case that judge hears going forward.”

Given that the Court of Appeals hears some of the state’s toughest cases, it’s important to make any legitimacy arguments moot.

“The last thing we want is to put this question off until say, there’s a murder case or a robbery case or whatever it may be, in front of this judge and then an aggrieved litigant is able to say, you know what, we lost, but we get a do-over, because the judge who heard and decided our case wasn’t even supposed to be on the court in the first place,” said Schmidt.

Schmidt says the state’s argument to have the case heard is what it would have told both parties if it had issued an advisory opinion on the matter.

“Our view is actually, the statute just doesn’t answer the question,” said Schmidt. “On these facts, the statute’s created a dead end and nobody gets to make the next appointment. What really needs to happen is that the Legislature must go back and fix the statute.”

The oral arguments in the case are scheduled for 2 p.m. Thursday, May 9.