Kansas Attorney General Derek Schmidt on Monday asked the Kansas Supreme Court to settle the dispute over whether Gov. Laura Kelly can still nominate a state appeals court judge.
Schmidt filed a lawsuit asking the state’s highest court to sort out the ongoing feud between the governor and the Senate president over the appointment to the Kansas Court of Appeals.
Senate President Susan Wagle has argued that Kelly lost the ability to make the appointment when she withdrew the nomination of Jeffry Jack after a series of his angry tweets against conservative politicians surfaced.
Wagle says the governor had 60 days to nominate a judge, and the Senate didn’t receive notification of the nomination until the 60th day. The 60th day was March 15, when Kelly announced Jack’s nomination.
Wagle believes the appointment should now be made by Chief Justice Lawton Nuss.
Kelly contends that the law does not address a situation like this where a nomination is withdrawn before Senate confirmation
She says the appointment is only transferred to the chief justice when the governor fails to nominate someone within 60 days.
Kelly has called for tweaking state law to solve the matter, an idea Wagle has rejected.
Meanwhile late last Friday afternoon, Kelly announced she had added Assistant Solicitor General Steve Obermeier to a list of finalists that also includes Lawrence attorney Sarah Warner and Wichita lawyer Marcia Wood.
Wagle has said passing new legislation would be “an accommodation of (the governor’s) failure to properly vet her own judicial candidate.”
The attorney general, meanwhile, has urged caution about the nomination. Schmidt has said it is paramount to resolve the dispute or run the risk of undercutting the judicial legitimacy of the person nominated to the Court of Appeals.
The attorney general lightly admonished Kelly and Wagle in a letter sent out on Monday. The letter was sent to Wagle and it was copied to the governor, the House speaker, the Senate majority and minority leaders among others.
“I construe the combined effect of the above actions by Gov. Kelly and you as acting contrary to my advice to fix the statute before proceeding with a new appointment,” he wrote.
“Therefore, to protect the interests of the state as described in my prior correspondence, I have today filed a lawsuit in the Kansas Supreme Court seeking a definitive interpretation of the statute and clear guidance on how the parties may lawfully proceed,” he wrote.
In the petition, Schmidt argues that there is a “gap” in the statute and it does not address the question of a withdrawn appointment.
“In drafting (the law), the Legislature apparently failed to contemplate the prospect of an appointment being withdrawn after expiration of the initial 60-day period, so it made no provision for that eventuality,” he wrote.
If the Supreme Court concludes the current statute does authorize an appointing authority, Schmidt asked the court to make clear whether that is now the governor or the chief justice.
