Kansas Gov. Wins Latest Spat With Judiciary

     TOPEKA, Kan. (CN) — The Kansas Supreme Court ruled that Republican Gov. Sam Brownback acted within his discretion by refusing to appoint an interim district magistrate judge until after the state primaries are held on Tuesday.
     In denying a mandamus petition filed by three sitting judges, the state high court found that Brownback was not bound by statute to act immediately, as the judges had alleged.
     “We hold that a 90-day time limit set out in the statute is directory rather than mandatory under our precedent. This means that the timing of the governor’s appointment is discretionary rather than ministerial,” Justice Carol Beier wrote in the 11-page ruling. “Mandamus cannot be invoked to compel a discretionary act. The governor may therefore, consistent with his stated intention, wait for the result of the primary election on Aug. 2, 2016, before he appoints the magistrate judge.”
     This latest dispute between Brownback and the state’s judges began in early February when District Magistrate Judge Tommy B. Webb gave notice of his retirement. The governor immediately began accepting applications to fill the vacancy on an interim basis, with the intention of filling the spot within the usual 90-day period.
     However, on May 25, after the period had expired, Brownback sent a letter to applicants saying that he had decided not to make an appointment at all.
     “Instead, I will defer to the voters of Haskell County,” the letter said, alluding to the Aug. 2 primary election.
     The mandamus action was filed in June, seeking a writ requiring Brownback to “immediately appoint an interim district judge for Haskell County” and alleging that the governor “has failed, and in fact refused, to appoint a successor district magistrate judge, in violation of [his] duty.”
     The Kansas Supreme Court disagreed with that interpretation of state law on Friday, finding in a 7-0 ruling that the word “shall” in the applicable statute should be interpreted as discretionary rather than mandatory, specifically since the judgeship in question is subject to partisan election procedures, as opposed to other judges who are appointed via a nonpartisan process.
     As such, Brownback is off the hook as far as his delay tactics go, even if the justices don’t necessarily agree with his inaction.
     “Although the governor should appoint an interim district magistrate judge in a partisan election district within the 90-day time limit set out in the statute, we construe the statute to permit him to do so later,” Friday’s ruling states.
     The mandamus petition was filed by Chief Judge Bradley E. Ambrosier, along with District Judges Linda P. Gilmore and Clinton B. Peterson, all of Kansas’ 26th Judicial District.
     This dispute over the district magistrate judge vacancy is not the first time Brownback’s court-related actions have stirred controversy. In February, the Kansas Legislature repealed his attempt to kill funding for state courts unless lawmakers acceded to his effort to gain more power over judges.

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