TOPEKA, Kan. — The Kansas Supreme Court's chief justice plans to retire before the end of the year, allowing first-year Democratic Gov. Laura Kelly to leave a bigger mark on the state's highest court than her conservative Republican predecessors.
Chief Justice Lawton Nuss announced Friday that he would step down Dec. 17 after serving on the court since 2002 and as chief justice since 2010. During Nuss' tenure as chief justice, GOP conservatives increasingly criticized the court as too liberal and too activist for the state over rulings on abortion, capital punishment and public school funding.
Nuss, 66, was an appointee of moderate Republican Gov. Bill Graves and voted repeatedly to direct legislators to increase education funding in recent years. He was part of the 6-1 majority that declared in April that the state constitution protects access to abortion as a "fundamental" right. He has also voted to overturn death sentences in capital murder cases.
His announcement came a little more than two weeks after Justice Lee Johnson, an appointee of Democratic Gov. Kathleen Sebelius, announced plans to retire in September. That means Kelly will have two appointments to the seven-member court since she took office in January. Conservative GOP Govs. Sam Brownback and Jeff Colyer had only one appointee between them in eight years.
Nuss noted in a letter to Kelly that Kansas governors and legislative leaders traditionally serve no more than eight years and, "By those measures alone, certainly, it is time I depart."
Kelly's appointments to the Supreme Court will not be subject to Kansas Senate confirmation under a process outlined in the state constitution. Instead, a nominating commission led by lawyers will screen applications, hold public interviews and submit three finalists' names to Kelly. The group has already set a Sept. 3 deadline for applications for Johnson's seat.
Many Republican lawmakers were already expecting to push for changing the selection process after the Legislature reconvenes in January. But lawmakers won't be able to act quickly enough to get changes in place before Kelly replaces Johnson and Nuss.
"Gov. Kelly and her political allies on the bench are clamoring to pack the high court before the Kansas people, through their elected representatives, have a chance to reform the process," state Sen. Ty Masterson, a conservative Wichita-area Republican, said in a statement. "Kansans deserve to have a voice in who sits on the highest court in the state and that comes through a requirement for Senate confirmation."
Nuss' retirement automatically will elevate the next senior justice, Marla Luckert, another Graves appointee, to chief justice. Johnson was among four justices appointed by Sebelius, while Justice Caleb Stegall was appointed by Brownback.
Justices face a statewide, yes-or-no vote every six years on whether they should remain on the Supreme Court, and its rulings in recent years inspired campaigns to oust all of them except Stegall. They all narrowly failed, including one against Nuss and three other justices in 2016.
Kansas law would have allowed Nuss to stand for retention again in 2022 and serve through 2028.
"He's been in the arena, doing difficult work on behalf of Kansans," Kelly said. "And he has done it well."
Prior to being appointed to the court, Nuss served in the Marine Corps for four years before attending law school at the University of Kansas and practicing law in the central Kansas town of Salina for two decades. He also has an affinity for cowboy poetry and has judged state contests.
Nuss was at the center of a brief but intense political controversy in 2006 — later named the "Nuss Fuss" — over a short lunchtime conversation he had with two state senators about education funding with a lawsuit pending. Nuss said he was trying to gather information and removed himself from the case. But lawmakers had hearings and a judicial disciplinary panel admonished him not to have such conversations in the future.
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