April 4, 2007
(2nd revision, April 5, 2007)

Reno County Republicans miffed by Governor Sebelius' Appointment of Magistrate Judge.  
Kansas Judicial Nominating Process Flawed by Huge Political Money?

Governor Sebelius establishes a nominating committee and then appoints a Democratic Party activist to Magistrate Judge in Hutchinson. ALL members of Sebelius' nominating committee (except the chair) were Sebelius' political contributors.

The selection of judges in Kansas continues to be a biased, partisan  process and in need of reform, yet the Kansas press pretends it's a fair and impartial process and devoid of any politics.

Instead of holding a special election when an elected official resigns, Kansas Law states how a replacement should be chosen.  In partisan elections, where the winners of Democratic and Republican primaries meet in a general election, a replacement is chosen using the party precinct committee process as outlined in Kansas Law KSA 25-3902. The party of the person leaving office picks a replacement of the same party, who serves in office until the next regular election.  

Attorney General Robert Stephan issued Opinion No 94-157 on Nov 22, 1994:

In case of filling a vacancy of district office (including the offices of district judge, district magistrate judge, county commissioner, state representative, state senator, district attorney or county attorney), a county chairperson "shall call a convention of all committeemen and committeewomen of the party of the precincts in such district for the purpose of electing a person to be appointed by the governor to fill the vacancy." KSA 25-3902.

While Stephan's opinion reflects the common impression on how replacements are made in partisan elected offices, there seems to be a contradiction with KSA 24-3902, which Stephan cited.

KSA 25-3902.   Procedure for filling vacancy in district office other than judge of district court; district convention; appointment by governor. (a) Except as provided in KSA 25-312a and amendments thereto when a district convention is provided by law to be held to elect a person to be appointed to fill a vacancy in a district office, the county chairperson designated in subsection (b) or (c), within 21 days of receipt of notice that a vacancy has occurred or will occur, shall call and convene a convention of all committeemen and committeewomen of the party of the precincts in such district for the purpose of electing a person to be appointed by the governor to fill the vacancy

Before looking at KSA 24-312a, which was mentioned above, we need further clarification of "judge of district court" from KSA 20-301a:

KSA 20-301a.  Classes of judges; judge of the district court defined; jurisdiction, power and authority. There shall be two classes of judges of the district courts established pursuant to K.S.A. 20-301: District judges and district magistrate judges. As used in this act, "judge of the district court" means any of such judges.

One might assume the KSA 20-301a definition of "judge of the district court" should be applied to KSA 25-3902, which means KSA 25-3902 should NOT be used for the replacement of a magistrate judge even if elected in a partisan contest. This is the authority Sebelius assumed:  

KSA  25-312.  Vacancies in state and county offices, how filled. All vacancies in any elective state or county office, unless otherwise provided for by law, shall be filled by appointment by the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election.

It's not clear what statute authorized the use of a judicial nominating committee selection followed by a Gubernatorial selection.  Now that it's relatively clear who should make the selection (some Reno County Republicans disagree), let's review how this opening occurred and learn more about those involved in the selection process.  

In 2004 the state authorized a "new" magistrate judge position in Reno County to alleviate the court docket load to handle mostly first appearances, misdemeanors, traffic and small-claims cases.  In August 2004, partisan primaries were held.  The Aug 4, 2004 Hutchinson News reported:

Two Reno County attorneys will vie for the newly created magistrate judge position after securing a win Tuesday night in their primaries.

Joe McCarville, 56, captured a little more than half the votes, defeating five other candidates with a resounding win in the Republican primary.  ...

In the Democrat primary, Randy McEwen, 54, edged out his only opponent, Cheryl Allen, an attorney for Legal Services for Prisoners, with almost 60 percent of the vote at presstime.

The results of the November general election were reported by the Nov 8, 2004 Hutchinson News:

Magistrate Judge/Dist. 27
Joseph McCarville III, R 14,112
Randall McEwen, D 11,006
Karen Lyons (write-in)
...

Canvassing of election returns Friday morning at the Reno County Courthouse did not reverse the outcome of any races.

Karen Lyons received 606 write-in votes, but Republican Joe McCarville collected 14,112 and will be sworn in as district magistrate judge.

In 2006 Joe McCarville ran for a vacated District 27 court judgeship and was elected in Nov. 2006.  This election left a vacancy for the Magistrate Judge position held by McCarville.  Right after the Nov. election, some members in the leadership of the Reno County Republican Party started planning for a meeting of Republican precinct committees to make the selection of a replacement for Republican McCarville.  That process had just stated when the Hutchinson News announced the Governor was getting involved in the replacement process.  

The  Nov 10, 2006, the Hutchinson News said the replacement process would start once  "Gov. Kathleen Sebelius establishes a selection committee in Reno County."    Complaints by Reno County  Republicans to Secretary of State Thornburgh and Reno County legislators were ignored.   Why didn't the Hutchinson News allow public discussion of this issue?  Why did the Hutchinson News never report anything about this conflict?

The selection of judges in Kansas is becoming a more heated issue with the debate on which is the more "fair" process for selecting/replacing judges:

• Partisan elections of judges to keep judges responsible directly to the voters.  The party affiliation gives voters some clue about the political philosophy of the judicial candidate.

• Appointment of judges using a judicial nominating committee, with half the members being attorneys, and half the members being members of the community.  This process is intended to get the politics out of the selection process.  Unfortunately under Sebelius, this has become a blatantly political process, which is never reported by the press.

So, which is better?  An openly-partisan selection of a replacement judge by elected precinct committees?  Or, a "non-partisan" but quite partisan process involving political appointees, and political contributors on a "nominating committee" to hide the politics behind the selection of a new judge?

The selection of judges in Kansas continues to be a biased, partisan  process and in need of reform, yet the Kansas press pretends it's a fair and impartial process and devoid any politics.  

Let's review the replacement of a District Magistrate Judge that recently occurred in Reno County (27th Judicial District).  The Hutchinson News recently reported that Randy McEwen was sworn in as Reno County magistrate judge.  

McEwen endured a months-long appointment process to win the appointment from Gov. Kathleen Sebelius. ... McEwen beat out contender Cheryl Allen, whose name a selection committee also sent to the governor after interviewing six candidates for the position.

Governor Sebelius' press release about this appointment fails to mention McEwen's long involvement in Democratic Party politics:

Citing his legal experience and community involvement, Governor Kathleen Sebelius has appointed Randall H. McEwen to serve as district magistrate in the 27th Judicial District, which covers Reno County.

“Randy has strong ties to the community and a strong commitment to ensuring justice for all.  He also has a great deal of experience in a variety of settings, including public service and as an attorney in private practice,” Sebelius said.

Why doesn't the press report how political this appointment is? 

• Randy and wife, Kam, are alternate 1st District Democratic Party delegates.  

• Randy McEwen's Law Office was used in April 2006 for a Democratic Party event, "Hope in the Heartland: Democratic Victory in Reno County"

Be a part of the team that lays the groundwork to re-elect Governor Kathleen Sebelius, replace out-of-touch Republicans

Host: Lindsay Gentry Location: Randy McEwen's Law Office (Hutchinson, KS) 200 W. 6th Hutchinson, KS 67504

• Randy McEwen is the Treasurer of Reno County Democrats (Aug 2006).  As Treasurer Reno County Democrats received $1000 from Sebelius' Blue Stem Fund PAC on 11/3/2006 and gave $750 to Paul Morrison for AG on 11/6/2006. 

• Randy McEwen gave $65 to Reno County Democrats (2/23/2005).  

• Randy McEwen was the Reno County Democratic Chair for Candidate Recruitment, as pictured below.

From Democratic Party Photo Gallery:
Not only do we work, but we also play!  Here are some pictures
of Reno County Democrats working and playing!

• Rand McEwen lost partisan District Magistrate Judge 27 race in Nov 2004:
      Joseph L McCarville III  14,342 (R)
      Randall H McEwen  11,252 (D)

• Randy McEwen lost partisan District Court Judge 27 race in Nov 2000:  
      Timothy J Chambers 13,788 (R)
      Randall H McEwen 10,992  (D)

• Randy McEwen was part of tye Reno County Democrats' group in a Hutchinson Christmas parade (see below):

Was the involvement in the Reno County Democratic Party the best selection criteria for a magistrate judge?

The other candidate for this judgeship was Cheryl Allen, who was a Democratic candidate for Magistrate Judge in 2004.  Allen was a Democrat in 2005 but in early 2006 apparently became a registered Republican.  That reason alone is likely why Sebelius didn't pick her over a Democratic Party activist Randy McEwen.   Both were interviewed by a KBI special agent.  Any political questions on the 26-page questionnaire they were both asked to fill out?

Did the KBI agent talk to Dan Deming?  Deming on his blog on Feb 22, 2006 said  McEwen "managed to scare the hell out of a number of people earlier this month – and of all places, at an old folks home."   McEwen "walked into a public legislative forum at Wesley Towers Retirement Community carrying a shotgun." ... but it wasn't loaded.  See the whole story here.  Is this the behavior of a magistrate judge?  From the Hutchinson News, Feb 5, 2006:

McEwen, a Democrat who ran for Reno County magistrate judge in 2004, walked in with the shotgun while Rep. Jan Pauls, D-Hutchinson, made her opening remarks.

Later, during question-and-answer time, moderator Richard Shank read McEwen's question to the panel of five lawmakers: "Did you feel safe when I walked in with a 12-gauge shotgun, and do you support concealed carry?"

Following the meeting, McEwen said the shotgun he's had since high school illustrated his stance against concealed carry of firearms.

"I'm concerned that people that are behind you in the grocery store line might have a firearm under their coat. That's not going to make me feel any better," he said.

"I just don't see the need to try to make people feel safe by allowing people to carry firearms concealed," McEwen said.

Is the local nominating committee a group of concerned citizens, who want the best legal mind in their courtroom?  Or, is the nominating committee a political group, all with political connections, wanting to make some sort of political appointment that has nothing to do with justice for the citizens of Reno County?

Let's look at the political make-up of this "non-partisan" nominating committee:

Members of Reno County Judicial Nominating Committee

Sources: 

• names from  Hutchinson News, Jan 21, 2007, "Judge panel hears hopefuls"

• Party affiliation from Secretary of State's voter registration list, Dec, 2006

• Federal contributions from Open Secrets

• Kansas contributions from Kansas Governmental Ethics Commission

State Rep Pauls is an honorable public official and should be commended for her social concerns.  I have no problem with Rep Pauls being on this selection committee, especially since she is a local elected official.  She must be involved in politics just to be elected.

However,  as shown above, the other four members of this committee were ALL Sebelius contributors. THREE of the four members of this committee were also contributors to Democrat Paul Morrison for Attorney General.  Why are we pretending that politics had nothing to do with the nomination by this committee, and the selection by Sebelius?

We wish Judge Randy McEwen the best as he starts his service as a magistrate judge.  Since this is an elected position, and this seat will be on the 2008 ballot, the voters in Hutchinson can decide then if this political money, and this selection process,  matters to them.  

The Kansas Meadowlark has written about how Sebelius has abused the judicial system in her appointments, including:

• Nov 1, 2003:  Judge rules in Sebelius' favor but doesn't disclose wife's contribution to Sebelius?
  [In 2005 Judge Rosen was given his reward:  Sebelius appointed Rosen to the Kansas Supreme Court]

• Jan 4, 2005:  A new judicial activist? Did $750 to Sebelius help get Six the Seventh?

• June 18, 2005:  Kansas Supreme Court Usurps Power of Legislature?  Kansas needs "Suitable" Supreme Court now?

• July 22, 2005:  Sebelius continues packing Kansas Supreme Court with Democrats ... when Kansas only has 27% Democrats.

• Sep 10, 2005:  Kansas Supreme Court Discovers "Education" as Fundamental Right

• July 3, 2006:  Sebelius appoints wife of "dean of Ellis County Democratic politics" to Supreme Court Nominating Commission

• Aug 13, 2006:  Sebelius Replaces Appointee to Supreme Court Nominating Commission After 42 Days

• July 3, 2006:  Political Profile of Kansas Supreme Court Nominating Commission:  6 Democrats, 2 Republicans, 1 Republican for Moore

K a n s a s M e a d o w l a r k @ g m a i l . c o m