441 P.3d 67
Kan.2019Background
- Judge Patrick McAnany retired effective Jan. 14, 2019, creating a Court of Appeals vacancy. Governor Kelly announced her appointment of Judge Jeffry Jack on March 15 (the 60th day) and hand-delivered appointment materials to the Senate Majority Leader that day.
- On March 18–19, Judge Jack (at the Governor’s request) sent a written withdrawal and the Governor informed the Senate she would nominate another person within 60 days.
- Dispute arose about whether the original appointment had begun the statutory 60‑day Senate consent period and whether the Governor or appointee could withdraw the appointment; the Attorney General filed quo warranto seeking resolution. Governor later announced a second appointee, Sarah Warner, after the suit was filed.
- The controlling statute is K.S.A. 2018 Supp. 20-3020(b) (appointment by governor, Senate consent within 60 days, and procedure if Senate does not consent). The parties relied on the more general withdrawal statute, K.S.A. 75-4315b(c), arguing it authorized withdrawal.
- The Court concluded the Senate was not a proper or necessary party and dismissed it from the action, but considered its arguments in reaching the statutory interpretation questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Kansas Senate is a proper party to the quo warranto action | AG: Senate can be named; court may resolve appointment authority questions | Senate: consented to be party but lacked procedural authorization; Speech or Debate and capacity issues | Court: Senate is not a proper or necessary party and was dismissed |
| Whether Governor made a valid appointment within the 60‑day window | AG: Governor’s public announcement and hand‑delivery commenced the 60‑day Senate process | Governor: she made an appointment on day 60 and transmitted it to Senate | Court: Governor made and transmitted a valid appointment on the 60th day; the 60‑day confirmation window began |
| Whether the Governor or appointee could withdraw the appointment once made (invoking K.S.A. 75‑4315b) | AG: Withdrawal was asserted; but argued that statutory gap could make appointment void | Governor & Senate: argued K.S.A. 75-4315b(c) allows an appointing authority to withdraw before confirmation | Court: K.S.A. 75-4315b does not apply; K.S.A. 2018 Supp. 20-3020(b) is specific and silent about withdrawal, so neither Governor nor appointee may withdraw once appointment is made |
| Legal effect of Jack’s withdrawal letter and Governor’s second appointment | AG: withdrawal should prevent vesting and allow new appointment (or leave uncertainty) | Governor: withdrawal permitted, so she could submit a new nominee | Court: Jack’s withdrawal had only practical effect for Senate voting strategy; it did not stop the statutory 60‑day process nor permit a second simultaneous appointment—the later appointment is ineffective and treated as never made |
Key Cases Cited
- Barrett v. Duff, 114 Kan. 220 (court 1923) (incoming governor could not withdraw prior appointments once offices were filled)
- Matassarin, 114 Kan. 244 (court 1923) (duty of governor to transmit appointments to Senate)
- Leek v. Theis, 217 Kan. 784 (court 1975) (appointment can be changed before confirmation; Senate refusal creates vacancy allowing new appointment)
- State ex rel. Schmidt v. City of Wichita, 303 Kan. 650 (court 2016) (quo warranto standard: challenge to authority to hold public office)
- Nauheim v. City of Topeka, 309 Kan. 145 (court 2019) (statutory interpretation: courts will not add language not found in statute)
- Tucker v. Watkins, 737 So. 2d 443 (Ala. 1999) (interpretation of "effective at the time it is made" in appointment statute)
- Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926 (court 2009) (absence of statutory language indicates legislative intent not to do something)