TOPEKA — Kansas Attorney General Derek Schmidt on Monday asked the Kansas Supreme Court to decide who, if anyone, now has legal authority to appoint a new judge to the current vacancy on the Kansas Court of Appeals after withdrawal of the governor’s first nominee.

In a lawsuit filed Monday, Schmidt asked the Supreme Court to rule swiftly on the dispute between Governor Laura Kelly and Senate President Susan Wagle over how a state statute governing Court of Appeals appointments applies to the unusual circumstances surrounding the current vacancy. The dispute arose after the governor withdrew her first nominee after the deadline for the governor to make the appointment had passed but before the Senate could vote on the nominee. The governor now argues that the appointments statute authorizes her to make a second appointment, but Senator Wagle argues that the statute shifts the appointing authority to the chief justice of the Kansas Supreme Court.

In the lawsuit filed Monday, Schmidt asked the Supreme Court to decide who is correct. And he suggests a third possibility: That no one currently has authority to make the appointment because of a gap in the statute, and therefore the Legislature needs to amend the statute and decide how it should apply to the current unusual situation.

“In the State’s view, the words of the statute are plain and unambiguous and the gap in the statute is obvious: (The appointments statute) simply does not address the circumstance that has arisen here,” Schmidt wrote in his filing with the court. “In drafting (the appointments statute), the Legislature apparently failed to contemplate the prospect of an appointment being withdrawn after expiration of the initial 60-day period, so it made no provision for that eventuality. The defect in the statute is one that only the Legislature can cure. This Court should exercise restraint, decline to speculate how the Legislature might have wished the statute to address this circumstance, and instead leave to the Legislature the task of repairing the statute as it may see fit.” 

However, in the event 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.

On Monday Schmidt filed a Petition in Quo Warranto, a Memorandum in Support of Petition in Quo Warranto, and a Motion to Expedite. The lawsuit, State ex rel. Derek Schmidt, Attorney General, v. Governor Laura Kelly, Chief Justice Lawton Nuss, and Kansas Senate, is Original Action No. 121061. The three documents filed with the court are available at http://bit.ly/2ZqYyL5. A letter Schmidt sent to Senator Wagle on Monday and copied to Governor Kelly is available at http://bit.ly/2VXqOm9.