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§ 5. Selection of justices of the supreme court. (a) Any vacancy occurring in the office of any justice of the supreme court and any position to be open thereon as a result of enlargement of the court, or the retirement or failure of an incumbent to file his declaration of candidacy to succeed himself as hereinafter required, or failure of a justice to be elected to succeed himself, shall be filled by appointment by the governor of one of three persons possessing the qualifications of office who shall be nominated and whose names shall be submitted to the governor by the supreme court nominating commission established as hereinafter provided.

(b) In event of the failure of the governor to make the appointment within sixty days from the time the names of the nominees are submitted to him, the chief justice of the supreme court shall make the appointment from such nominees.

(c) Each justice of the supreme court appointed pursuant to provisions of subsection (a) of this section shall hold office for an initial term ending on the second Monday in January following the first general election that occurs after the expiration of twelve months in office. Not less than sixty days prior to the holding of the general election next preceding the expiration of his term of office, any justice of the supreme court may file in the office of the secretary of state a declaration of candidacy for election to succeed himself. If a declaration is not so filed, the position held by such justice shall be open from the expiration of his term of office. If such declaration is filed, his name shall be submitted at the next general election to the electors of the state on a separate judicial ballot, without party designation, reading substantially as follows:

"Shall ___________________________________
           (Here insert name of justice.)

________________________________________
    (Here insert the title of the court.)

be retained in office?"
If a majority of those voting on the question vote against retaining him in office, the position or office which he holds shall be open upon the expiration of his term of office; otherwise he shall, unless removed for cause, remain in office for the regular term of six years from the second Monday in January following such election. At the expiration of each term he shall, unless by law he is compelled to retire, be eligible for retention in office by election in the manner prescribed in this section.

(d) A nonpartisan nominating commission whose duty it shall be to nominate and submit to the governor the names of persons for appointment to fill vacancies in the office of any justice of the supreme court is hereby established, and shall be known as the "supreme court nominating commission." Said commission shall be organized as hereinafter provided.

(e) The supreme court nominating commission shall be composed as follows: One member, who shall be chairman, chosen from among their number by the members of the bar who are residents of and licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district.

(f) The terms of office, the procedure for selection and certification of the members of the commission and provision for their compensation or expenses shall be as provided by the legislature.

(g) No member of the supreme court nominating commission shall, while he is a member, hold any other public office by appointment or any official position in a political party or for six months thereafter be eligible for nomination for the office of justice of the supreme court. The commission may act only by the concurrence of a majority of its members.

History: Adopted by convention, July 29, 1859; ratified by electors, October 4, 1859; original subject matter stricken, L. 1957, ch. 234, § 1; new subject matter substituted, L. 1972, ch. 392, § 1; November 7, 1972.

Revisor's Note:

Original annotations to this section that are now pertinent to Article 3, Section 2, have been transferred to that section and appear there as case annotations 27 through 34.

Prior to 1958, section related to district courts and district judges.

Vacancies in supreme court. Prior to 1958, see § 11 of this Article; from 1958 through 1972, see § 2 of this article.

Election, appointment and terms of office. Prior to 1972, see § 2 of this article.

Supreme court nominating commission. Prior to 1972, see § 2 of this article.

Cross References to Related Sections:

Implementing legislation, see 20-119 through 20-138.

Law Review and Bar Journal References:

Restoring the Common in the Law: A Proposal for the Elimination of Rules Prohibiting the Citation of Unpublished Decisions in Kansas and the Tenth Circuit, Mark D. Hinderks and Steve A. Leben, 31 W.L.J. 155, 187 (1992).

Selection to the Kansas Supreme Court, Stephen J. Ware, 17 Kan. J.L. & Pub. Pol'y, No. 3, 386 (2008).

Merit Selection: The Workings of the Kansas Supreme Court Nominating Commission; A Response to Professor Ware's Article — From the Perspective of a Supreme Court Nominating Commission Member, Patricia E. Riley, 17 Kan. J.L. & Pub. Pol'y, No. 3, 429 (2008).

The Merits of Merit Selection; A Kansas Judge's Response to Professor Ware's Article, Janice D. Russell, 17 Kan. J.L. & Pub. Pol'y, No. 3, 437 (2008).

The Bar's Extraordinarily Powerful Role in Selecting the Kansas Supreme Court, Stephen J. Ware, 18 Kan. J.L. & Pub. Pol'y, No. 3, 392 (2009).

Attorney General's Opinions:

Judicial; supreme court nominating commission; open meetings act. 82-254.

Qualifications of members of supreme court nominating commission. 87-65.

Supreme court nominating commission; applicability of title 7; 1964 civil rights act, Americans with disabilities act and Kansas acts against discrimination. 93-69.

District judicial nominating commission members; prohibition against holding office in political party. 94-165.

Supreme court nominating commission; prohibition against members holding public office by appointment. 95-68.

Supreme court nominating commission; questions posed to applicants for appellate court positions; age, marital and family status, religious affiliation and mental health. 97-29.

Mentioned; governor has no deadline for appointments per 76-3304, unlike cited examples. 2007-13.

Statute prohibiting disclosure of judicial survey data of elected judges violates 1st Amendment. 2007-27.

CASE ANNOTATIONS

1. Cited; non-lawyer remaining on supreme court nominating commission following issuance of temporary permit to practice law examined. State ex rel. Stephan v. Adam, 243 Kan. 619, 622, 760 P.2d 683 (1988).