The conflict over the vacancy on the Kansas Court of Appeals is simply a situation where the Kansas Legislature did not pass a statute that covered every potential eventuality, according to a University of Kansas law professor.
“It says that after there’s a vacancy on the Court of Appeals, the Governor has 60 days to name a new appointment, which the Senate gets to confirm,” said University of Kansas Law Professor Lumen ‘Lou’ Mulligan.”If the Governor fails to make an appointment within 60 days, the Chief Justice of the Kansas Supreme Court gets to make the appointment. They have provisions in the statute which would govern if the Senate rejects the Governor’s appointment, then the Governor gets a new 60 days. What the statute does not cover is exactly what happened here.”
In ordinary circumstances, Kansas Attorney General Derek Schmidt would likely have issued an advisory opinion that would have clarified the issue. That’s not what he did.
“He urged them to create a legislative fix,” said Mulligan. “They could write one paragraph of legislative text, stick this into Article 20, Section 30-20 and fix this problem, but they don’t want to, because they’re having this political spat.”
Another interesting angle to this is that the type of action is a lawsuit that goes directly to the Kansas Supreme Court without a series of appeals first.
“In this particular one, he’s proceeding, so called ‘quo warranto’ which is Latin, it means, by what authority,” said Mulligan. “His petition says, well, who’s right? Does the Governor get a new 60 days? Does the Chief Justice have to pick? Or, should you just do nothing and say the statute doesn’t cover anything.”
If the Supreme Court takes the case, it’s also possible that Chief Justice Nuss could recuse himself, since in theory, the case would involve a power that could go to him depending on how it’s decided.