A federal appeals court has rejected a challenge to the judicial selection process in Kansas brought by a group of voters who claim that attorneys have too much say in state court appointments.

The U.S. Court of Appeals for the Tenth Circuit, in a 2-1 decision on September 13, upheld a lower court’s denial of an injunction sought by four plaintiffs who want to strip the Kansas Supreme Court Nominating Commission of its power to fill state appellate judge vacancies.

The plaintiffs claimed that the commission, composed of five attorneys appointed by attorneys and four nonattorneys appointed by the governor, violates the one-person, one-vote principle of equal protection clause of the U.S. Constitution.

Kansas’ commission, which recommends to the governor three candidates from which he or she must choose to fill each vacancy, is similar to systems in more than 30 states, according to the Tenth Circuit’s opinion. Judges appointed to fill the vacancies are subject to a general election retention vote after serving for one year.

The plaintiffs were a group of Kansas voters, none of whom are attorneys. The defendants were the attorney-members of the Kansas Supreme Court Nominating Commission.

In a per curiam ruling with a concurrence by Terrence O’Brien, the appeals court determined that the composition of the commission was rationally related to the objectives of Kansas’ judicial selection process. As such, the court held that the commission did not give lawyers an unconstitutionally disproportionate influence in the selection process.

“Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the commission’s members is a rational way to accomplish that goal,” O’Brien wrote. “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.”

Judge Monroe McKay dissented, writing that the appointment process was “subject to manipulation.”

“[T]he commission can effectively choose its own candidate by nominating only one acceptable choice along with two individuals it knows the governor will not select,” McKay wrote. “I would find the election unconstitutional under the Supreme Court’s equal protection jurisprudence.”

Attorney James Bopp, who represents the plaintiffs, said that his clients were considering whether to seek an en banc review by the Tenth Circuit or to appeal to the U.S. Supreme Court.

“We continue to maintain that having lawyers pick all the judges in the state violates the right of people to vote for public officials,” said Bopp, of The Bopp Law Firm in Terre Haute, Ind.

Representing the attorney commission members is Thompson Ramsdell & Qualseth in Lawrence, Kan.

Contact Leigh Jones at ljones@alm.com.