FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                                  TENTH CIRCUIT                            September 13, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ROBERT DOOL; JULIE BROWN;
DONALD D. ROSENOW; THOMAS C.
SCHERMULY,

             Plaintiffs – Appellants,
v.                                                          No. 10-3320
                                               (D.C. No. 6:10-CV-01286-MLB-KMH)
ANNE E. BURKE, in her official capacity                      (D. Kan.)
as Chairman of the Kansas Supreme Court
Nominating Commission; KERRY E.
MCQUEEN, in his official capacity as
Attorney Member of the Kansas Supreme
Nominating Commission; PATRICIA E.
RILEY, in her official capacity as Attorney
Member of the Kansas Supreme
Nominating Commission; MATTHEW D.
KEENAN, in his official capacity as
Attorney Member of the Kansas Supreme
Nominating Commission; JAY F.
FOWLER, in his official capacity as
Attorney Member of the Kansas Supreme
Nominating Commission; CAROL
GILLIAM GREEN, in her official capacity
as Clerk of the Kansas Supreme Court,

             Defendants – Appellees.




                             ORDER AND JUDGMENT*

      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
       It is appropriate as it relates to law of the case, issue preclusion and claim
preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir.
R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate
Before O'BRIEN, McKAY, and MATHESON, Circuit Judges.


       A group of Kansas voters, none of them lawyers, sued the attorney members of the

Supreme Court Nominating Commission (Commission) and the Clerk of the Appellate

Courts requesting a temporary restraining order and preliminary injunction to prevent any

vacancies from being filled while this lawsuit is pending. The Commission is composed

of five attorneys elected by attorneys and four non-attorneys appointed by the Governor.

Appellant voters claim the selection of the Commission’s attorney members violates the

one person, one vote principle of the Equal Protection Clause because the franchise is

closed to all but attorneys. The district court denied the preliminary requests for relief

before going on to dismiss the complaint for failure to state a claim. The voters appealed

from the dismissal.

       AFFIRMED.


                                                    Entered for the Court

                                                    Per Curiam




parenthetical notation B (unpublished). 

et al. v. Burke, et al.

O’BRIEN, J. concurring.


       Kansas fills appellate court vacancies using a merit-selection system under which

the governor picks from a shortlist of candidates tendered by a nomination commission.

The commission is comprised of five attorneys and four non-attorneys. Non-attorney

members are appointed to the commission by the governor, while attorney members are

elected by resident attorneys. The effect of the system is to give Kansas lawyers

disproportionate influence over the selection process.

       This case presents an equal protection challenge to the election of the

commission’s attorney members. The challengers, non-attorney residents of Kansas,

claim they must be given an equal opportunity to participate in elections for the

Commission’s attorney members, much as they would in elections for any other public

offices. In their view, denying otherwise qualified voters the right to vote on equal terms

with resident lawyers violates the Equal Protection Clause of the Fourteenth Amendment.

For the reasons stated herein, I concur in the Order and Judgment entered Per Curiam.

                                     BACKGROUND

       Kansas is not alone in its use of merit selection to fill judicial vacancies. The

system is employed in one form or another by more than thirty states. Sandra Day

O’Connor, The Essentials and Expendables of the Missouri Plan, 74 MO. L. REV. 479,

486 (2009). What sets apart merit selection in Kansas is its genesis. Before 1958,

Kansas voters chose judges by popular election, with the governor filling interim
vacancies by appointment. Jeffrey D. Jackson, The Selection of Judges in Kansas: A

Comparison of Systems, 69-JAN J. KAN. B. Ass’n, Jan. 2000, at 33.

       Confidence in that system hit bottom in 1956 when Governor Fred Hall, defeated

in his party’s primary election, set his sights on the state supreme court, specifically the

seat of chief justice, which was soon to be vacated by the ailing Bill Smith, a loyal

supporter of Hall’s. See 

to have the seat but unable to appoint

himself, Hall (in cooperation with Smith) did the next best thing: he waited for Chief

Justice Smith to resign and ceded the governorship to his lieutenant, John McCuish, on

the condition that McCuish appoint him to fill the judicial vacancy. 

that, his first and final decision in his 11-day tenure as governor. Their three-step

maneuver—Smith resigns from the bench, Hall resigns the governorship, McCuish

appoints Hall to take Justice Smith’s seat—would be remembered, disgracefully, as the

Kansas triple play.

       The public was outraged. Within days a joint resolution had been introduced in

the legislature calling for an overhaul of the judicial-selection process and the creation of

a non-partisan judicial nomination commission. See Anatomy of a Merit Selection

Victory, 93 JUDICATURE 6, 8 (2009) (remarks of panelist Greg Musil). Less than two

years later, in the 1958 general election, Kansas voters resoundingly approved a

constitutional amendment establishing the Supreme Court Nomination Commission

(“Commission”). KAN. CONST. ART. 3, § 5. Legislation implementing the amendment

followed in short order, KAN. STAT. ANN. § 20-119 et seq., and two decades later, when

the legislature created the Kansas Court of Appeals, it charged the Commission with

                                             -2-
selecting nominees to fill vacancies on that court and certain trial courts1 as well, KAN.

STAT. ANN. § 20-3004(a).

       The Commission is a nine-member body consisting of a chairperson (a lawyer

licensed and residing in Kansas), as well as one attorney member and one non-attorney

member from each of the four U.S. congressional districts. KAN. STAT. ANN. § 20-119,

20-120. The attorney members are elected by licensed attorneys residing in their

respective congressional districts, the chairperson by Kansas attorneys voting at large.

members are appointed by the governor. KAN. CONST. ART. 3,

§ 5. The attorney-member selection process is administered by the Clerk of the Appellate

Courts. KAN. STAT. ANN. §§ 20-119, 20-120. When a seat opens on the Supreme Court

or the Court of Appeals, the clerk alerts the Commission’s chairperson and sends a notice

of vacancy, along with a deadline for submission of applications, to eligible Kansas

attorneys residing in the state. KAN. STAT. ANN. §§ 20-132, 20-3007; Patricia E. Riley,

Merit Selection: The Workings of the Kansas Supreme Court Nominating Commission, 17

KAN. J. L. & PUB. POL’Y 429, 431 (2008). Once applications are submitted, candidates

undergo interviews and background checks, and the Commission, which may act only by

majority vote, decides which three names will be submitted to the governor. 

. The governor must select one of the three candidates to fill the

       1
         In 1974 the legislature enabled voters in each judicial district to opt into the merit
selection system for selecting trial judges and magistrates. KAN. STAT. ANN. §§ 20-2901-
16. To date 17 districts (embracing 52 counties) use the merit selection system. Stacie L.
Sanders, Kissing Babies, Shaking Hands, and Campaign Contributions: Is this the Proper
Role for the Kansas Judiciary?, 34 Washburn L. J. 573, 580 n. 49 (1995). The remaining
14 districts (53 counties) still select district judges by partisan election. 

CONST. ART. III, § 5(a), (e); 

. Should the governor

fail to appoint one of the three candidates within 60 days of receiving the list, the duty

falls to the the chief justice of the Kansas Supreme Court. KAN. CONST. ART. III, § 5(b).

       Merit selection notwithstanding, Kansas voters retain control over the tenure of the

members of the state judiciary. Supreme Court justices and Court of Appeals judges

stand for retention in the general election after serving for at least a year. 

same goes for trial court judges in the 17 districts that have adopted merit selection for

district judges and magistrates.2 Appointed judges can keep their office if a majority of

those voting elect to retain them, or else the office becomes vacant and the process starts

over. 

justices stand for retention every six years, appellate-

court judges and district judges every four. KAN. STAT. ANN. §§ 20-3006(b), 20-2902.

       National experience demonstrates no timidity by voters in ending the tenure of

judges standing for retention. Although incumbents regularly prevail in retention

elections, victory is hardly automatic. In 2010 alone, the list of failed retention

candidates included (but was not necessarily limited to) three Supreme Court justices in

Iowa, two district judges in Colorado, a district court judge in Alaska, and a magistrate in

New Mexico. Judicial Selection in the States, American Judicature Society,

http://www.judicialselection.us/.3



       2
        The Kansas Judicial Report Card, http://www.kansasjudicialperformance.org/
index.cfm?? Page=TheKansasJudicialReportCard (last visited July 30, 2012). One
hundred twenty-nine of the state’s 244 trial court judges are chosen by merit selection.

is, perhaps, emblematic. Its merit selection system is

                                             -4-
                                       DISCUSSION

                                             A.
       That citizens have a fundamental right to vote for public officials on equal terms

with one another is uncontroversial. Reynolds v. Sims, 

, 562 (1964);

Wesberry v. Sanders, 

, 7 (1964). That the right is comprehensive, extending

beyond statewide legislative bodies to county and municipal offices, and even to smaller

entities such as school boards and college trustees, is similarly beyond dispute. See, e.g.,

Hadley v. Junior Coll. Dist., 

, 53-54 (1970); Kramer v. Union Free Sch. Dist.

No. 15, 

, 626-27 (1969); Avery v. Midland Cnty. Tex., 

, 476-77,

484-85 (1968). The question presented by this appeal is whether it extends even further,

beyond traditional democratic institutions to specialized bodies like the Commission, and

if so, whether the process for electing the Commission’s attorney members violates the

Equal Protection Clause of the Fourteenth Amendment.

       The foundational voting rights decision is Reynolds, the first in a series of electoral

apportionment cases to announce the principle that one person’s vote should count for no

more or no less than 

. Reynolds concerns state legislatures,

and the immediate effect of the decision was to require state legislative districts to be

quite similar to the Kansas system. See WYO. CONT. ART. 5, § 4. Since Wyoming
adopted merit selection in 1972, voters have ousted five judges in retention elections,
four general-jurisdiction trial judges and one Supreme Court justice. Judicial Selection in
the States: Wyoming, American Judicature Society, http://www.judicialselection.us/
judicial_selection/index.cfm?state=WY. Wyoming had five Supreme Court justices and
16 district court (general jurisdiction) judges in 1972. Wyoming Blue Book, Vol. III 29-
30 (Virginia Trenholm ed., Wyoming State Archives and Historical Dept, 2007). As of
July 2012, the number of district judges had risen to 23. WYO. STAT. ANN. § 5-3-102.
The number of Supreme Court Justices has remained the same.


                                            -5-
nearly equal in population. See Branch v. Smith, 

, 268 (2003). But while

Reynolds requires due regard for equal protection in legislative elections, it does not

address whether qualified voters are entitled to participate on equal terms in elections for

non-legislative offices. See 

.

       The Court answered that question in Avery, concluding Reynolds applies with

equal force to officials of a county government who exercise “general governmental

powers over the entire geographic area served by the 

. Central to

the Court’s holding was the idea that citizens should have a voice in the selection of the

public officials charged with ensuring their well-being. The Court observed that “the

States universally leave much policy and decision making to their governmental

subdivisions,” 

that there is no difference, for equal protection purposes,

“between the exercise of state powers through legislatures and its exercise by elected

officials in the cities, towns, and counties.” 

a recurring theme in the post-Reynolds voting rights cases,

with the Court extending one person, one vote to minor elective offices because equal

participation is required whenever a public official has the power to affect the day-to-day

affairs of the electorate. In Hadley, for instance, the Court applied one person, one vote

to elections for trustees of a junior-college district. 

. As in

Avery, the inquiry hinged on whether the elected trustees performed “general

governmental functions,” with a focus on the scope of the official power and its impact

on the electorate:

       We feel that these powers, while not fully as broad as those of the [county

                                              -6-
       commissioners in Avery], certainly show that the trustees perform important
       governmental functions within the districts, and we think these powers are
       general enough and have sufficient impact throughout the district to justify
       the conclusion that the principle which we applied in Avery should also be
       applied here. 

decision in Kramer, perhaps the most sweeping interpretation of

Reynolds to date, is grounded by the principle that voters should be given an equal

opportunity to participate in elections affecting their daily 

.

Kramer involved a challenge to a system for school district elections; it limited voting

eligibility to local parents and those who owned or leased property in the district. 

extending Reynolds to school board elections, the Court considered strict scrutiny

to be appropriate when “a challenged state statute grants the right to vote to some bona

fide residents of requisite age and citizenship and denies the franchise to others. . . .” 

broad language is at the heart of the challengers’ assertion that Reynolds

applies to all state and local elections, without regard to the powers of the office. But as

with Avery before it and Hadley after, the Court’s decision in Kramer frames the right to

vote in terms of its relationship to participatory democracy. The Court described the

franchise as bound up with the “legitimacy of representative government,” 

explained that “[s]tatutes granting the franchise to residents on a selective basis always

pose the danger of denying some citizens any effective voice in the governmental affairs

which substantially affect their lives.” 

Court did not say what force, if

any, Reynolds has in elections for governmental offices which do not affect the daily

lives of the electorate.




                                             -7-
       The Supreme Court has carved out an exception to Reynolds for limited-purpose

bodies exercising narrow government functions and operating to the burden or benefit of

one group of constituents more than others. Ball v. James, 

, 371 (1981);

Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 

, 729 (1973).

The exception is seldom applied, and to date the only special-purpose bodies to have

benefited from the Supreme Court’s relaxed scrutiny are water and power districts in

which the administration is financially independent of local government and the franchise

is restricted to farmers. See 

; Salyer Land 

;

Associated Enters. v. Toltec Watershed Imp. Dist., 

(1973).

       The challengers contend the right to vote for members of the Commission is just

as weighty as their right to vote in other public elections.4 They maintain the right may

not be burdened unless the limitation is necessary to further a compelling state interest,

and no compelling interest has been identified here. They claim the district court’s ruling

runs afoul not only of Supreme Court precedent, but also this court’s decision in

Hellebust v. Brownback, 

(10th Cir. 1994), where this court decided

elections for members of a state agriculture board could not be constitutionally restricted

to delegates from the agriculture industry.5




       4
        To be clear, the challengers do not take issue with the composition of the
nomination commission, only with the restrictions on who is eligible to vote for the
commission’s lawyer members.
       5
       The challengers would have no objection to the nomination process if the
Governor had authority to appoint all nine commission members.

                                               -8-
                                              B.

       Before turning to the merits of the challenge, it is necessary to first resolve a

dispute over the appropriate level of scrutiny. The challengers argue strict scrutiny is

required for any election of “general interest,” which would appear to encompass any

state or local election not satisfying the Salyer and Ball criteria. Kansas proposes a more

limited inquiry, one constrained by a threshold requirement: the elected office in question

must exercise general governmental functions. Under this approach, before determining

whether the elective office is of general or limited interest—that is, before deciding

whether to apply strict scrutiny under Reynolds or rational-basis review under Salyer and

Ball—we must determine whether the office is in fact “governmental,” as that term is

used by the Supreme Court.

       Kansas has identified the correct approach: a threshold inquiry is appropriate. The

strict demands of Reynolds cannot reasonably apply to every election unable to be

wedged into the fact-bound and exceedingly narrow exception established in Salyer and

Ball. Such an inflexible rule would make hash of qualifying language in Avery and other

decisions restricting Reynolds to elective offices exercising “general governmental

powers.” 

; 

. It stands to reason from

this language, which appears in the Court’s decisions as a standalone requirement,

independent of the Salyer/Ball inquiry, see 

, 

, that one person, one vote has boundaries; some elective offices (apart from the

special-purpose districts described in Salyer and Ball) do not exercise the type of

governmental power contemplated in Reynolds. Launching into the Salyer/Ball analysis

                                             -9-
without first considering this limitation would render the “general governmental

functions” language meaningless—an untenable result, for the phrase is too central to the

Court’s voting rights jurisprudence to be ignored. See Bd. of Estimates v. City of New

York, 

, 693 (1989); 

; Town of Lockport v. Citizens of

Cmty. Action, 

, 260 (1977); Concerned Citizens of Southern Ohio v. Pine

Creek Conservation Dist., 

, 659 (1977) (Rehnquist, J., dissenting); Salyer

Land 

; Associated Enterprises, 

; 

; 

.

       What is more, the challengers’ contention that Reynolds applies to all state and

local elections without regard to their subject clashes with the Supreme Court’s

admonition that one person, one vote should not be applied as a “uniform straitjacket” to

restrict states and localities in “devising mechanisms of local government suitable for

local needs and efficient in solving local problems.” 

. Consistent

with the time honored regard for states as laboratories for public policy, the Court has

acknowledged that the voting-rights decisions must be tempered by the need to permit

experimentation with the structure and organization of government. 

; see also Gregory v. Ashcroft, 

, 460 (1991).

       But there is scarce room for experimentation in a world where every election, save

the exceptional Salyer/Ball scenario, is subject to the exacting scrutiny of the federal

courts. The need for flexibility is heightened where, as is true of this commission and

dozens like it around the country, the challenged election involves a government body

serving a structural role in the maintenance of the separation of powers. See Whalen v.

                                           - 10 -
United States, 

, 689 n.4 (1980) (“[T]he doctrine of separation of powers

embodied in the Federal Constitution is not mandatory on the States.”); Sweezy v. New

Hampshire, 

, 255 (1957). The Seventh Circuit recognized as much in

rejecting an analogous interpretation of Reynolds:

       The plaintiffs believe that whenever a state decides to make an office
       elective, all the principles that the Supreme Court has extrapolated from the
       First and Fourteenth Amendments to regulate the electoral process are fully
       applicable. If this were so, it would be inconsistent with the principle that
       the federal Constitution does not prescribe any particular separation of
       powers, or other internal structure, of state government.

Pittman v. Chicago Bd. of Educ., 

, 1101-02 (7th Cir. 1995).

       By the same token, the Third Circuit has distinguished “general public elections”

involving offices performing “general governmental functions” from elections involving

less influential offices like a university board of trustees which “controls no viable

political sub-division and has less power than a local school district.” See Benner v.

Oswald, 

, 182-83 (3d Cir. 1979). Notably, in rejecting a challenge to the

trustees’ election, the Third Circuit did not mention Salyer Land Co. (Ball had yet to be

decided) or the relaxed scrutiny appropriate for elections involving “functionaries whose

duties are so far removed from normal governmental activities and so disproportionately

affect different groups,” Salyer Land 

-28 (internal quotations

omitted). 

. Rather, the Court rejected the challenge at the

threshold, refusing to equate the right to vote for a university trustee and the right to vote

in a participatory democracy. 

trustees] simply does not possess the

minimum governmental powers associated with municipal, school district, county, state,



                                            - 11 -
or federal offices.”); but see Carlson v. Wiggins, 

, 1140 (8th Cir. 2012)

(rejecting similar challenge to Iowa’s merit selection system on the ground that the state’s

judicial nomination commission fit Salyer’s definition of a special-purpose entity).

       In keeping with these decisions, I agree with the Third and Seventh circuits;

simply making an office elective does not trigger the strict demands of Reynolds. See

; 

. Those demands apply only when

the elective office exercises the kind of general governmental functions described in

Avery and its progeny.

                                            C.

       It follows from these principles, that the Commission does not exercise the type of

governmental functions necessary to trigger strict scrutiny. Since this is an appeal from a

dismissal under Federal Rule of Civil Procedure 12(b)(6), our review is without

deference. Peterson v. Grisham, 

, 727 (10th Cir. 2010). Although the

Supreme Court has not provided an exhaustive list of “general governmental functions,”

the meaning of the term can be gleaned from the circumstances in which it is has been

invoked. Without exception, those circumstances involve local governmental bodies

whose activities have a direct and immediate effect on voters. In Avery, it was a body of

commissioners with authority to set tax rates, oversee a budget, and issue bonds, 

; in Kramer and Hadley, education boards which, in addition to

administering a school system, had authority to annex new sites and decide matters of

local taxation, 

; 

. And while the

Court’s decisions in City of Phoenix v. Kolodziejski, 

, 209 (1970), and

                                           - 12 -
Cipriano v. City of Houma, 

, 705 (1969), involved referenda on municipal

bonds rather than elections for public office, the principle informing the rulings was the

same: excluding otherwise qualified voters was improper because all voters, not just

property owners, were affected by the bond offerings.

       The challenge to the Commission has no place in this line of cases. For strict

scrutiny to apply, there must be a causal relationship between the elective office and its

effect on the electorate. See 

. The office must exercise

“general” government power and must exercise it “over” the geographic area served by

the body, so that its work has a “sufficient impact” on the electorate. 

can neither make law nor administer it, plainly has no such general

power. The Commission is removed from the day-to-day decisions affecting the lives of

the electorate. It has no say in matters of safety or welfare—no authority to levy taxes,

issue bonds, condemn property, or build roads. Mostly it sits idle, staffless and

budgetless, and what limited authority it does have is exercised not “over” a political

subdivision, in the way that cities and districts and school boards exercise power over

their constituents, but rather in service of its structural role in the judicial appointment

process.

       Since the powers of the Commission are not of the type typically exercised by a

popularly elected body, the challengers gain no traction by appealing to the principle of

democratic legitimacy. Limiting the franchise to attorneys will neither “strike at the heart

of representative government,” 

, nor deprive qualified voters of

their “inalienable right to full and effective participation in the political process,” 

-
565. Those principles animate the holdings in Reynolds and other landmark voting rights

decisions, but they do not resonate in this case, because the legitimacy of the

Commission’s work is not contingent on the popular election of its members. Forged in

the ashes of the Kansas triple play, the Commission is designed to ensure the conduct of

the executive branch does not threaten the integrity of the judicial branch. Its charter

concerns the distribution of power within and among the various organs of government; it

is a structural body, not a representative one.

       If anything, respect for the democratic process cuts against the challengers’

position, which if adopted would frustrate the will of the Kansas people, as embodied in

the state constitution. The constitutional amendment creating the Commission has been

in place for more than half a century; its vintage a testament to the state’s time-honored

commitment to judicial independence. Cf. Van Orden v. Perry, 

, 702-03

(2005) (Breyer, J., concurring) (noting the long history of a challenged religious display

as one factor in favor of its constitutional legitimacy).

       The challengers maintain the Commission’s governmental function lies in the role

it plays in the appointment process. According to them, appointing judges is a core

executive duty in which the Commission plays an indispensable role. Not only does this

view misconceive the purpose of the Commission, but it conflates the Commission’s

authority with that of the governor. Although the appointment power does traditionally

fall to the executive, it is the governor, not the Commission, who performs it in Kansas.

The Commission, in interviewing candidates and recommending suitable nominees,

performs a carefully circumscribed intermediate role. That role—winnowing a candidate

                                            - 14 -
pool to cabin the governor’s discretion and ensure he chooses from only qualified

nominees—is not a traditional government function, but rather a structural innovation of

the merit-selection system. If anything the role is anti-governmental, in that it is carved

from the governor’s previously unlimited authority to make judicial appointments and

vested in an independent commission of citizens.6

       The Eighth Circuit reached a similar conclusion in rejecting an equal-protection

challenge to Iowa’s merit selection system. See 

, 1141. “[T]he

sole function of the Commission,” the court explained, “is to screen the applications it

receives and select from these applications the three most qualified candidates to forward

to the Governor for judicial appointments.” 

Iowa’s governor retains

the ultimate power to make judicial appointments, the court rejected the challengers’

“attempt to equate the powers of the Commission with the powers of the Governor.” 

the challengers say our decision in Hellebust compels reversal of the

district court’s decision. In Hellebust, this court struck down a statute providing for the

election of the Kansas Board of Agriculture by a select group of delegates from the

agriculture industry on the ground that it violated the one person, one vote rule. 

         Appellants seem to have no quarrel with the Governor’s power to appoint some
Commission members (non-lawyers) and, presumably, all members. But, as history
teaches, the Commission was established to constrain gubernatorial power and influence.
Whether that goal is best accomplished by empowering lawyers with diverse political
interests, but strong institutional loyalty to the third branch of government and intimate
knowledge of the courts and would-be judges, should best be left for the people to decide,
as they have.


                                           - 15 -
at 1332, 1134-35. The challengers contend the facts in Hellebust are materially

indistinguishable: in both cases, they observe, the state held elections for public office

while depriving certain qualified voters of the right to vote on equal terms with others.

       The challengers overlook a crucial distinction between this case and Hellebust.

The issue here—whether the elective office meets the “general government functions”

threshold—was taken for granted in Hellebust, where the analysis focused not on whether

the agriculture board is governmental (it plainly was), but whether the authority it

exercised was sufficiently narrow in reach and disproportionate in effect to satisfy the

Salyer/Ball exception. 

. Since the Commission does not

exercise the type of governmental power contemplated in Reynolds, there is no reason to

address the application of the Salyer/Ball exception, and thus no occasion to consider the

applicability of Hellebust.

       In the end, this court must defer to Kansas in decisions relating to the structure of

its government. See 

(“Through the structure of its government,

and the character of those who exercise government authority, a State defines itself as a

sovereign.”). Kansas voters adopted merit selection as a middle ground between an

appointment process scarred by abuse and an elective process susceptible to

politicization. By giving lawyers a controlling vote on the Commission, Kansas could

cabin the governor’s appointment power while still protecting the judiciary from the

corrosive force of popular politics. The structural role of the Commission, considered in

combination with its decidedly non-governmental functions, takes it out of the heartland

of the voting rights cases, making it unnecessary to consider whether members are

                                           - 16 -
elected in accordance with Reynolds. And since no fundamental right is at stake, the

deference to democratic process that informs rational-basis review requires upholding the

challenged law if we can imagine a conceivable justification for it. See Vance v. Bradley,

, 97 (1979); 

. I would have no difficulty doing that here.

       Kansas designed the Commission to favor lawyers in order to limit the influence

of politics on the nomination process and ensure the quality of its judicial nominees.

Preserving the quality and independence of the judiciary is a legitimate government

interest, and having attorneys elect a majority of the Commission’s members is a rational

way to accomplish that goal. Attorneys are better equipped than non-attorneys to

evaluate the temperament and legal acumen of judicial candidates and more likely to base

their votes on factors other than party affiliation. This is owing in part to their training,

which enables informed judgments about a candidate’s experience—his credentials, his

area of expertise, his body of work—and the extent to which it strengthens or weakens

his candidacy. Another part is propinquity—typical of many tightly knit legal

communities like the Kansas bar, attorney members of the Commission will often be

personally familiar with a candidate, whether by virtue of having worked with her (or

appeared before her), or else because they know someone who has.

       For the foregoing reasons, the equal protection challenge to the election of the

Commission’s attorney members fails.

       I concur in the Order and Judgment.




                                             - 17 -
10-3320, Dool, et al. v. Burke, et al.

MATHESON, J., concurring



       I would affirm on the same grounds as Carlson v. Wiggins, 

(8th

Cir. 2012), which rejected a similar challenge to Iowa’s merit judicial selection system.

The Eighth Circuit determined that Iowa’s limitation on voting for attorney members of

its nominating commission to Iowa lawyers was entitled to rational basis review because

the commission performs a limited purpose, affects attorneys more than others, and

therefore meets the Supreme Court’s Salyer/Ball standard. See 

also

Ball v. James, 

, 370–71 (1981); Salyer Land Co. v. Tulare Lake Basin Water

Storage Dist., 

, 728 (1973).

              Judge O’Brien’s concurring opinion concludes that the election of attorney

members to the Kansas Supreme Court Nominating Commission (“Commission”) does

not fit in the line of strict scrutiny cases that flow from Kramer v. Union Free School

District No. 15, 

(1969). It also maintains that the franchise restriction does

not fit comfortably within the Salyer/Ball exception to Kramer. It concludes that,

because the Commission does not perform general government functions, the restriction

on who may vote for attorney members of the Commission should not require strict

scrutiny.

              I agree that strict scrutiny should not apply, but I would rely on Salyer/Ball

to reach this conclusion. In Hellebust v. Brownback, 

(10th Cir. 1994), we

stayed within the Supreme Court’s Kramer/Salyer framework to affirm a successful equal
protection challenge to a franchise restriction on the election of members to the Kansas

State Board of Agriculture. Limiting the vote to delegates of Kansas agricultural

organizations who attend the Board’s annual meeting fell outside the Salyer/Ball

exception because the Board exercised “normal functions of state government.” 

Board also did not have a disproportionate effect on the voting delegates. 

we can employ the Salyer/Ball standard here to determine

whether rational basis scrutiny applies to restricting the voting franchise for the

Commission’s attorney members to licensed Kansas attorneys. We need only decide

whether the Commission performs a limited purpose and whether it has a

disproportionate effect on the voting population of attorneys. It does both.

              The Commission performs a limited role. It reviews applications for

judicial vacancies and proposes a slate of three candidates from which the Governor

appoints one to an open position. The Commission does not make, administer, or enforce

laws. It has no taxing or borrowing authority. See Hadley v. Junior Coll. Dist. of Metro.

Kansas City, Mo., 

, 53 (1970); 

(noting that the water

and power district at issue could not mandate ad valorem taxes, enact laws, or

“administer such normal functions of government as the maintenance of streets, the

operation of schools, or sanitation, health, or welfare services”).

       To meet the Salyer/Ball standard, it is not necessary that the Commission perform

no government tasks. The water districts at issue in Ball and Salyer exercised some

government functions. For example, both of the districts could issue bonds and condemn

property using eminent domain. See 

; 

n.7.

                                            - 19 -
However, the districts’ powers were limited. The Commission’s power is arguably even

more limited. It performs one step in a judicial appointment process—screening

applicants and selecting three nominees—that concludes when the Governor appoints.

       The Commission also disproportionately affects attorneys. Only licensed Kansas

attorneys may be nominated to serve as judges on a Kansas appellate court. See Kan.

Stat. Ann. § 20-105 (Supreme Court); 

(Court of Appeals). The

Commission’s task is to nominate attorneys to serve on the bench. Because only

attorneys may apply, the screening process affects attorneys more than it affects others.

       The Commission’s selection of judicial nominees may to some degree affect the

makeup of the Kansas judiciary and, therefore, affect the public at large. But the question

is not whether those seeking the vote are affected to some degree, but “whether the effect

of the entity’s operations on [the voting group is] disproportionately greater than the

effect on those seeking the vote.” 

. The voting group need not be

“the only parties at all affected.” 

on the Commission’s effect, not the

effect of the judiciary as a whole. The Commission’s role in choosing from the Kansas

legal community the three most qualified applicants for a judicial vacancy has a

disproportionate impact on the bar relative to the general population.

       Whether the Commission serves a narrow, limited purpose and whether, as Judge

O’Brien’s concurrence suggests, it does not exercise a general government function may

be two sides of the same coin. But keeping a tie to the Kramer/Salyer framework is

consistent with Hellebust and Supreme Court precedent.

       Accordingly, I conclude that because the Commission serves a limited purpose—

                                           - 20 -
arguably more limited than the water districts in Salyer and Ball—and because it affects

attorneys more than others, the franchise limitation on voting for attorney members of the

Commission to Kansas lawyers must bear only a rational relationship to the objectives of

the merit selection process. For many of the reasons stated in Judge O’Brien’s

concurring opinion, that standard is easily met here.

              Finally, one court has questioned whether the selection of attorney

members for a nominating commission even qualifies as a popular election as

contemplated by the Kramer/Salyer precedent because the entire process is essentially

appointive rather than elective. See Bradley v. Work, 

, 1456 (S.D. Ind.

1996) (explaining that a commission nomination system did not constitute a popular

election but was closer to an executive appointment). Under this view, regardless of

whether the Kansas Bar Association’s Board of Governors were to appoint the attorney

members—as the Board of Governors does in Alaska, see Kirk v. Carpenti, 

,

890 (9th Cir. 2010)—or whether members of the Kansas Bar choose them by voting, the

attorney members join with four others appointed by the Governor to become part of an

executive branch appointment process. That seems to be a far cry from the school board

election in Kramer or even the water district election in Salyer. Nonetheless, as this case

can be resolved because the Commission serves a limited purpose and affects attorneys

more than others, I would affirm under Salyer/Ball.




                                           - 21 -
10-3320, Dool v. Burke

McKAY, dissenting.

       The end objective of the process at issue is the selection of judges whose impact is

fundamentally general. The impact of this process on the employment of lawyers is of

little consequence when measured against its impact on litigants and the rules governing

social behavior.

       In Salyer and Ball, the end impact was on discrete groups. That is, the election in

those cases directly determined the governing officers for a water district that

“disproportionately affect[ed] landowners.” Salyer Land Co. v. Tulare Lake Basin Water

Storage Dist., 

, 729 (1973). The general public was only nominally

impacted. Moreover, “the provision of [utilities] is not a traditional element of

governmental sovereignty, and so is not in itself the sort of general or important

governmental function that would make the government provider subject to the doctrine

of the Reynolds case.” Ball v. James, 

, 368 (1981) (citation omitted). “[T]he

relationship between [residents] and the District’s power operations is essentially that

between consumers and a business enterprise from which they buy.” 

by contrast, the election at issue is for a majority of the members of the

nominating commission which limits the governor as judicial-appointing authority to one

of three candidates. The selection of judicial candidates is quintessentially governmental

in nature, and a judicial nominating commission “bears no resemblance at all to the

nominally public business enterprises at issue in Ball.” Nelson Lund, May Lawyers Be

Given the Power To Elect Those who Choose Our Judges? “Merit Selection” and
Constitutional Law, 34 Harv. J.L. & Pub. Pol’y 1043, 1053 (2011). “This nominating

power has to be regarded as a governmental function, and subjected to strict scrutiny, for

the same reason that the Supreme Court applies strict scrutiny to primary elections

conducted by political parties and elections to the electoral college.” 

omitted). The fact that only lawyers may serve on the bench adds little to the

weighing process, given the strong public interest in the selection of state court judges.

       The election at issue, like a primary election, is one step in the process of

determining who will exercise one of the three most critical governmental functions:

here, the judicial function. This election is not shielded from constitutional challenge

simply because its role in this process is indirect: “Presidential elections, for example, are

subject to scrutiny under Reynolds, notwithstanding the intermediating role of the

electoral college.” 

does the governor’s final say in the appointment process insulate the

nominating commission election from constitutional concerns. The nominating

commission does not simply screen and recommend candidates in an advisory fashion—it

presents three possible candidates to the governor, one of whom he must select even if he

finds all three unacceptable. This process is subject to manipulation, as the commission

can effectively choose its own candidate by nominating only one acceptable choice along

with two individuals it knows the governor will not select. See 

delegating to the state’s lawyers the authority to elect a controlling majority of a body that

exercises almost all of the discretion involved in appointing supreme court justices,

                                             -2-
Kansas has virtually given the state bar the authority to elect those who choose the

justices. The State’s choice of a complex procedure that obscures that effect cannot alter

the reality of the effect.” 

there is not even the saving grace of

confirmation of the appointment choice by the legislature (a representative elected body).

       I would find the election unconstitutional under the Supreme Court’s equal

protection jurisprudence.




                                            -3-