Kansas Attorney General Opinion 2017-016

November 13, 2017
ATTORNEY GENERAL OPINION NO. 2017- 16
Christopher Phelan
Coffey County Attorney
110 S. 6th Street, Room 204
Coffey County Courthouse
Burlington, KS 66839
Re: 	Courts—Nonpartisan Selection of Judges of the District Court—Members
Ineligible for Certain Positions
Synopsis: 	K.S.A. 20-2906(a) prohibits a member of the district judicial nominating
commission from concurrently holding an office in a political party but not
from holding a public office. Attorney General Opinion No. 94-10 is hereby
withdrawn. Cited herein: K.S.A. 20-2905; 20-2906.
* 	* 	*
Dear Mr. Phelan:
As the Coffey County Attorney, you ask for our opinion on whether K.S.A. 20-2906
prohibits a member of the board of county commissioners from concurrently serving as a
member of a judicial nominating commission. 	As you note, different conclusions were
reached by this office in Attorney General Opinion No. 94-10 and the Johnson County
District Court in Moore v. Robert T. Stephan and State of Kansas. 1 	For the reasons
discussed below, we concur with the Moore decision and withdraw Opinion No. 94-10.
The pertinent part of K.S.A. 20-2906(a) states: 	"No member of a district judicial
nominating commission, while such member is a member, shall hold any office or official
position in a political party."
1 Case No. 94-C-4864 (June 13, 1994).

Christopher Phelan
Page 2
In Attorney General Opinion No. 94-10, Attorney General Robert T. Stephan concluded
that K.S.A. 20-2906(a) prohibited a member of the board of county commissioners from
being appointed to serve as a member of the district judicial nominating commission.
There were two reasons for this conclusion. 	First, the "or" between "office" and "official
position" was used as a disjunctive term. The other reason was the word "office" meant
"public office" and a member of the board of county commissioners holds a public office. 2
In Moore, the plaintiff brought a declaratory judgment action in Johnson County District
Court challenging the conclusion in Opinion No. 94-10. 	The plaintiff claimed the word
"office" referred only to an office in a political party, not a public office. The district court
agreed the language of K.S.A. 20-2906(a) was ambiguous and subject to statutory
interpretation; thus, it looked to the legislative history of K.S.A. 20-2906(a).
The 	adoption 	of 	K.S.A. 	20-2906 	resulted 	from 	the 	passage 	of 	the 	constitutional
amendment now found in Article III, Section 6, of the Kansas Constitution. In 1973, the
Legislature 	appointed 	the 	Kansas 	Judicial 	Study 	Advisory 	Committee 	(Advisory
Committee) to make recommendations on the implementation of a legislative scheme for
the merit selection of district court judges.3 	The district court relied upon the following
comment to recommendation number 59 of the Advisory Committee:
This proposed process for selecting district court judges in Kansas is similar
to the present proven method of selecting Kansas supreme court justices-
nomination by a non-partisan commission and appointment of one of the
nominees by the Governor. 	However because trial court judges are to be
selected, certain modifications of the supreme court model are appropriate. 4
The district court also relied upon recommendation number 63 and the comment
appended thereto in the Advisory Committee's report, which stated:
While on a [district judicial nominating] commission, no member should be
an officer of a political party, nor should he be eligible for nomination to the
district court.
This recommendation provides safeguards against partisanship and bias
similar to those established for the Supreme Court Nominating Commission
in Article III, Section 5(g) of the Kansas Constitution. 5
The Advisory Committee's recommendations were adopted, in part, by the Kansas
Legislature in 1974. Although there was no discussion about the contested language in
the legislative history, the district court concluded that the purpose of K.S.A. 20-2906(a)
was obvious—"to protect against bias and partisanship in a manner similar to the
2 Opinion No. 94-10 at p. 2.
3 Moore, Johnson County District Court Case No. 94-C-4864 at p. 4.
4 Id., citing 13 W.J. at 380.
5 Id. at p. 5, citing 13. W.L.J. at 383.

Christopher Phelan
Page 3
safeguards established for the Kansas Supreme Court Nominating Commission in Article
III, Section 5(g), of the Kansas Constitution as it pertains to supreme court justices."6 That
provision states in pertinent part: 	"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." 7
The district court, however, rejected the defendants' argument that "office" referred to all
public offices, noting the Supreme Court Nominating Commission restriction only applied
to appointed public offices; 8 thus, under the defendant's preferred interpretation, district
court nominating commission members would have stricter requirements than the state
Supreme 	Court 	Nominating 	Commission 	members. 9 	The 	district 	court 	noted
recommendation number 63 and the accompanying comment made no reference to
prohibiting a member of the district judicial nominating commission from being a public
officer or employee. 10 	The district court also noted the omission of the word "public" in
K.S.A. 20-2906(a) was conspicuous when the legislature had used the term "public office"
in other statutes to describe the prohibited conduct. 11 The district court also rejected the
cases cited by the defendants to support their suggestion that the terms "public office"
and "office" are synonymous or interchangeable. 12
Based upon the above legislative history and purpose of K.S.A. 20-2906(a), the district
court determined "that the only exclusion sought from membership on the district judicial
nominating commission by the advisory committee was for officers of political parties and
not public office holders." 13 In other words, as stated in recommendation number 59, the
safeguards for a district judicial nominating committee were modified from the safeguards
for the Supreme Court Nominating Commission.
In Attorney General Opinion No. 94-165, we concluded that a precinct committee person
for a political party is a person who holds an office or official position in a political party
and may not serve as a member of a district judicial nominating commission. In doing so,
we acknowledged that the district court in Moore had reached a different conclusion than
the one in Attorney General Opinion No. 94-10. While the opinion agreed with the district
court's conclusion that the purpose of K.S.A. 20-2906(a) is to protect against bias and
partisanship, Opinion No. 94-165 did not expressly withdraw Opinion No. 94-10.
After reviewing Opinion No. 94-10 and the district court's decision in Moore, we agree
with the district court's reasoning and conclude that K.S.A. 20-2906(a) prohibits a member
of the district judicial nominating commission from concurrently holding an office in a
6 Id.
7 Emphasis added.
8 Id. at p. 5.
9 Id. at p. 6-7.
10 Id. at p. 6.
11 Id. at p. 7-8.
12 Id. at p. 8-10.
13 Id. at 6.

Christopher Phelan
Page 4
political party but not from holding a public office. 	Thus, Opinion No. 94-10 is hereby
withdrawn.
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
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