Kansas attorney alleges secrecy, seeks change to Supreme Court justice nomination commission
Sen. Mike Thompson, the Republican chairman of the Senate Federal and State Affairs Committee, presides over a hearing in March 2025 in Topeka. He is part of an effort to publicize information about Kansas Supreme Court justice candidates earlier than current practice allows. (Photo by Tim Carpenter/Kansas Reflector)
TOPEKA — A push in the Kansas Legislature for greater transparency in the way Kansas Supreme Court Justices are selected furthers a revolt against the current merit-based system.
An attorney and Republican legislator teamed up to introduce Senate Bill 299, which would force the Kansas Supreme Court Nominating Commission to make public most of its records, including information on candidates for the commission.
Current Supreme Court rules dictate that all nominating commission records be confidential, but the commission has discretion to release judicial applicants’ names, employment history, educational background and home cities. A nine-member nominating commission selects three candidates based on merit, and the governor appoints a justice from the list of three.
Joshua Ney, an attorney who sits on the 2nd Judicial District’s nominating commission, was the lone proponent who testified Thursday to the Senate Federal and State Affairs Committee.
To him, the Supreme Court nominating commission “sure looks like a smoke-filled room.”
The commission is still subject to public meeting laws and has historically released information on its three selected candidates upon sending them to the governor. The commission’s interviews with hopefuls are also open to the public before members select their three nominees. But Ney took issue with the commission refusing to release the names and information of candidates for commission seats, including the chairman.
Ney said he helped brainstorm the bill, which Republican committee chair Sen. Mike Thompson of Shawnee introduced last April on Ney’s behalf.
“I don’t see a reason for secrecy in nominating commission proceedings,” Ney said. “I don’t see a parallel in any other public office where you can’t get the name of who else has filed for the office you’re considering filing — or someone else is considering filing for — ʼtil afterwards.”
Ney filed last spring to be considered for a vacancy on the nominating commission, he said in written testimony. He and his former law firm partner, Ryan Kriegshauser, who was recently appointed to the U.S. Attorney’s Office for the District of Kansas, repeatedly pressed appellate court clerk Doug Shima for explanations as to why candidate records were exempt from disclosure, according to emails from March included in Ney’s testimony. Shima repeatedly cited Supreme Court rules and existing law, stating he, as secretary of the commission for the past decade, does not release candidates’ names until the nomination process is closed.
The nominating commission consists of one attorney and one non-attorney from each of Kansas’ four Congressional districts, and one attorney chair. The chairman and two members from the 4th Congressional District were appointed last year, and the terms of two members representing the 1st Congressional District will expire in 2026. Lawyers are appointed to the commission by their peers, and the governor appoints non-lawyer members.
No one publicly opposed the bill.
If the House and Senate both pass the bill, and the governor signs it into law, it would go into effect July 1, around one month before voters are scheduled to weigh in on a proposed constitutional amendment to change the way Supreme Court justices are selected.
Voters will have the option on Aug. 6 of retaining the current merit-based system, or voters can choose to switch to a popular vote system, involving ballot races for a seat on the bench and public-facing campaigns.
If voters choose the popular vote system, the proposed records rule would have to be repealed entirely or significantly modified in subsequent legislation, said Jason Long, a legislative researcher and adviser, during testimony.
The issue is layered, with Democrats advocating for retaining the existing system and many Republicans arguing for a popular vote. Some have added the context that motivations for changing the system could be rooted in dissatisfaction among Republican leadership with Kansas Supreme Court decisions on education and abortion.
Former Chief Justice Marla Luckert announced earlier this month her intention to retire by February, and selecting a replacement is likely to be a monthslong process. Luckert began her time on the bench in 2003 after she was appointed by Republican Gov. Bill Graves. Her retirement will be outgoing Democratic Gov. Laura Kelly’s fifth appointment to the court, resulting in four sitting justices out of seven on the bench.
Lisa Taylor, a spokesperson for the Kansas Supreme Court, declined to comment on Ney’s allegations and the merits of legislation, citing an inability to discuss policy issues.