Kansas Attorney General Opinion 2022-006

May 23, 2022
ATTORNEY GENERAL OPINION NO. 2022- 6
Douglas T. Shima, Secretary
Kansas Supreme Court Nominating Commission
Kansas Judicial Center
301 SW 10th Avenue
Topeka, KS 66612
Re: 	Constitution of the State of Kansas—Judicial—Selection of Justices of the
Supreme Court; Supreme Court Nominating Commission; Congressional
District; Resident Member of the Bar; Change in Congressional District
Lines; Effect
Courts—Supreme 	Court—Supreme 	Court 	Nominating 	Commission;
Certified Roster of Attorneys; Certificate Evidencing Qualifications and
Voting; Record of Election and Appointment to Commission
Synopsis: 	A vacancy on the Kansas Supreme Court Nominating Commission occurs
when the residence of a lawyer member is no longer located in the
congressional district from which elected due to redistricting changes of the
boundaries of the congressional district. 	The resulting vacancy shall be
filled by the procedure in K.S.A. 20-128. Cited herein: K.S.A. 20-119; 20-
120; 20-124; 20-125; 20-127; 20-129; 25-2022a; 77-201; Kan. Const., Art
3, § 5; Substitute for Senate Bill 355; Substitute for Senate Bill 563.
* 	* 	*
Dear Mr. Shima:
As secretary of the Kansas Supreme Court Nominating Commission (Commission), you
request our opinion regarding the impact on the membership of the Commission when
the Kansas Legislature changed the congressional district lines by enacting 2022

Douglas T. Shima, Secretary
Page 2
Substitute for Senate Bill No. 355 (Sub. for S.B. 355).1 	Specifically, you ask whether a
vacancy occurs when the residence 2 of a member of the bar elected to the Commission
is no longer located in the congressional district from which the member was elected due
to a change in congressional district lines accommodating shifts in the locations of the
state’s population.
Section 5 of Article 3 of the Kansas Constitution addresses the manner of selection of
Supreme Court justices. 3 Under that procedure, a “nonpartisan nominating commission
whose duty it [is] 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” was
established.4
(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. 5
Kansas has four congressional districts. 6 	Thus, under Article 3, Section 5(e), the
Commission is comprised of nine members.
Exercising its authority under Article 3, Section 5(f), the legislature enacted K.S.A. 20-119
through 20-138. 	Under those statutes, licensed lawyers elect a licensed lawyer who
resides in their respective congressional district.7 	Similarly, resident licensed lawyers
1 Sub. for S.B. 355 became effective on February 10, 2022.
2 K.S.A. 77-201, Twenty-third defines residence as “the place which is adopted by a person as the person’s
place of habitation and to which, whenever the person is absent, the person has the intention of returning.
When a person eats at one place and sleeps at another, the place where the person sleeps shall be
considered the person’s residence.”
3 Voters approved this procedure in 1958 following the “Kansas triple play.” 	The “Kansas triple play”
occurred when, after the sitting governor lost the primary election, the ailing chief justice of the Kansas
Supreme Court and the sitting governor resigned their offices, thereby allowing the lieutenant governor to
become governor and appoint the former governor as chief justice of the Kansas Supreme Court. Kansas
Historical Society, https://www.kansasmemory.org/item/228731, accessed March 30, 2022.
4 Kan. Const., Art. 3, § 5(d).
5 Kan. Const., Art. 3, § 5 (emphasis added).
6 Sub. for S.B. No. 355, §§ 4 – 7.
7 See K.S.A. 20-120.

Douglas T. Shima, Secretary
Page 3
select the Commission’s chair in a statewide election. 8 	The term of office for each
Commission member is currently four years.9
The legislature has established a procedure for the election and appointment of
Commission members if redistricting “changes the number of congressional districts in
the state.”10 	Redistricting under Sub. for S.B. No. 355, however, did not change the
number of congressional districts, 11 which makes this procedure inapplicable.
Sub. for S.B. No. 355 included a section that states:
The provisions of this act shall not affect the term of any representative to
congress elected to represent a district at the general election of 2020 or
the term of any successor to such representative serving for an unexpired
term. 	All such representatives shall continue to serve the districts from
which elected until the representatives elected from the congressional
districts established by this act commence their terms of office in January
2023. 12
The Legislature also enacted 2022 Substitute for Senate Bill 563 (Sub. for S.B. 563) that
changed the boundaries for state senatorial, representative, and state board of education
districts.13 	It included the same language above allowing state senators to “continue to
serve the districts from which elected until the senators elected from the districts
established by this act commence their terms of office in January 2025.” 14 This language
was also included in provisions for state representatives and state board of education
members allowing them to continue to serve until the representatives and state board of
education members elected from the districts established under Sub. for S.B. 563
commenced their terms of office in January 2025. 15 	This language in Sub. for S.B. No.
355 	and 	Sub 	for 	S.B. 	563 	is 	clear 	and 	expressly 	applies 	only 	to 	congressional
representatives, state senators, state representatives, and state board of education
members. 	Thus, 	we 	cannot 	interpret 	any 	of 	these 	provisions 	to 	apply 	to 	the
Commission. 16
Additionally, the Legislature has used language that governs a change in boundaries for
school boards. “Changes of member district territory and boundaries such that a member
of a board of education no longer resides in the member district from which elected or
8 See K.S.A. 20-119.
9 K.S.A. 20-125.
10 K.S.A. 20-129.
11 See K.S.A. 2021 Supp. 4-143 (establishing four congressional districts).
12 Sub. for S.B. 355, Section 3.
13 Sub. for S.B. 563 became effective on April 21, 2022.
14 Id. at Section 4.
15 Id. at Section 48 (representatives) and Section 176 (state board of education members).
16 In the Interest of T.S., 308 Kan. 306, 309-10 (2018) (courts read statutory language as it appears, without
adding or deleting words, and statutory construction is used only if the language is less than clear or is
ambiguous).

Douglas T. Shima, Secretary
Page 4
appointed shall not shorten the term of such member.” 17 	Its failure to do so in Sub. for
S.B. No. 355 strongly suggests it did not so intend for Commission members.18
Because the Legislature has not addressed redistricting boundary changes for the
Commission, we must determine whether the current lawyer member continues to serve
or a vacancy occurs.
K.S.A. 20-127 describes when vacancies occur in the Commission. It states:
If the chairman or any other members of the commission elected by the
members of the bar shall cease to be a member of the bar entitled to engage
in the general practice of law in Kansas, or if the chairman shall change his
place of residence from the state or if any other member of the commission,
whether elected or appointed, shall change his place of residence to a
congressional 	district 	other 	than 	that 	from 	which 	he 	was 	elected 	or
appointed, the chairman or such other member as to whom such change of
condition exists, shall no longer be a member of the commission and a
vacancy shall exist as to his membership.19
The statute requires an action by the lawyer member that results in the member either
ceasing to be a member of the bar or changing the physical location of the member’s
residence. 	Here, neither has occurred. 	Specifically, the lawyer member on the
Commission did not “change his place of residence to a congressional district other than
that from which he was elected.” 	Rather, the change occurred by the congressional
district lines being redrawn which resulted in the residence of the lawyer member being
outside of the congressional district from which he was elected. The Kansas Legislature
did not include redistricting as a cause that creates a vacancy. 	Thus, a vacancy
prescribed by K.S.A. 20-127 has not occurred.
In short, the legislature has not addressed whether a vacancy occurs due to a change in
the boundaries of the congressional districts. Nevertheless, we believe a vacancy occurs
when after the congressional district lines were changed, a lawyer member of the
Commission no longer resides in the congressional district from which elected.
In Attorney General Opinion No. 89-51, this office addressed whether a person who was
appointed to the Washburn University Board of Regents as a resident of a senatorial
district under K.S.A. 1988 Supp. 13-1a04 became disqualified if the person no longer
resided in the senatorial district from which he was appointed. 	We concluded that the
requirement of residence in that senatorial district for that person continues throughout
the term of office and voluntary failure of a person to maintain such residence results in
17 K.S.A. 25-2022a.
18 See State ex rel. Schmidt v. Kelly, 309 Kan. 887, 903 (2019) (statutory language showing the legislature
knows how to convey its intent suggests that it did not have such intent when that language was omitted in
another statute).
19 K.S.A. 20-127 (emphasis added).

Douglas T. Shima, Secretary
Page 5
such person’s disqualification to hold the office and creates a vacancy therein. 20 In short,
the official’s residency in the district from which elected was a preliminary and continuing
qualification to hold the office.
We have located only one case in which there was a challenge of the qualifications of a
Commission member. 	In State ex rel. Stephan v. Adam,21 the Kansas Supreme Court
addressed the qualifications of a non-lawyer member of the Commission to continue to
serve after she became the holder of a temporary permit to practice law. The Court held
that a temporary permit to practice law was not within the meaning of the statutes
governing lawyer members of the Commission and she remained qualified to serve as a
non-lawyer member of the Commission. 22 However, the Court rejected her argument that
she would remain qualified to serve her term after receiving her law license as long as
she continued to reside in the congressional district from which she was appointed. The
Court stated:
To insure that non-lawyers retained a voice in the selection of the nominees
to the Supreme Court, the constitution requires that the nonpartisan
nominating commission be composed of a chairman, who is a member of
the bar, and an equal number of members of the bar and non-lawyers from
each congressional district.
If the name of a non-lawyer member of the Commission is placed on the roll
of attorneys licensed to practice law in Kansas, then, as a member of the
bar, that individual will have the right to vote in the election of lawyer
members to the Commission and the qualifications to stand for election to
the Commission as a member of the bar. 	However, such a person, upon
becoming a member of the bar, no longer qualifies as a non-lawyer member
of the Commission. The Clerk of the Supreme Court, after placing the non-
lawyer’s name on the roll of attorneys licensed to practice law in Kansas,
will then be required by statute to notify the governor of a vacancy on the
Commission of the non-lawyer member from that congressional district.23
The rejection of the non-lawyer member’s argument shows that the Kansas Supreme
Court 	determined 	a 	member 	of 	the 	Commission 	must 	possess 	the 	prescribed
qualifications throughout the term of office, and ceasing to possess the legal qualifications
works as a forfeiture of the office.24
In the current situation, if the lawyer member of the Commission no longer resides in the
congressional district from which elected due to redistricting, then that member now
resides in a congressional district that already has a resident lawyer member on the
20 Id.
21 243 Kan. 619 (1988).
22 Id. at 625.
23 Id. at 626.
24 See Attorney General Opinion No. 79-267; 3 McQuillin Mun. Corp., § 12:110 (3 rd ed.).

Douglas T. Shima, Secretary
Page 6
Commission. 	The congressional district from which the lawyer member was elected is
no longer represented on the Commission. In other words, one congressional district has
two lawyer members and the other congressional district has none. This result is contrary
to the composition of the Commission as set out in Section 5 of Article 3.
Because the composition of the Commission no longer complies with Section 5 of Article
3, a vacancy has occurred. K.S.A. 20-128 provides the procedure for filling the vacancy.
It provides in pertinent part:
Any vacancy occurring from any cause 	. . . among the lawyer members
from the congressional districts shall be filled by appointment by the chief
justice of the supreme court of Kansas, such appointee to hold office until
the first day of July following the expiration of four months after such
appointment is made. 	During the four months immediately preceding the
termination of such appointive term an election shall be held in the manner
by this act provided for other elections of subsequent members of the
commission, for the unexpired term, if any, of the member whose vacancy
is being filled.
Thus, 	we 	conclude 	that 	a 	vacancy 	on 	the 	Kansas 	Supreme 	Court 	Nominating
Commission occurs when the residence of a lawyer member is no longer located in the
congressional district from which elected due to redistricting changes of the boundaries
of the congressional district. 	The resulting vacancy shall be filled by the procedure in
K.S.A. 20-128.
Sincerely,
Derek Schmidt
Kansas Attorney General
Janet L. Arndt
Assistant Attorney General
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