Archive for the ‘Supreme Court Applicants’ Category

Newest Justice’s first opinion

May 1, 2009

May 1st. The Kansas Supreme Court today issued two opinions, which will be covered here shortly. One of these opinion’s was written by the newest member of the Court, Justice Dan Biles.


Newest Justice to be sworn in

March 5, 2009

March 5th. As Governor Sebelius prepares to depart for Washington, her final appointment to the Kansas Supreme Court (bringing her total appointments to four of seven Justices) will be sworn in Friday, March 6th. Details about Justice Biles’ swearing in ceremony are contained in a Court press release here.

Opinions are also generally issued on Fridays. If any decisions are announced, check back here over the weekend for coverage.

Analysis: The Sebelius Court

January 7, 2009

The appointment of Daniel Biles to fill the vacancy created on the Kansas Supreme Court by Chief Justice McFarland’s retirement is in some ways an anti-climax. When the nominating commission announced its three choices it was fairly clear which one Governor Sebelius would pick. As an attorney, Biles does not have a judicial track record that can be pored over to determine where he will take the law, but it is pretty safe to say that his appointment represents another significant leftward shift of the court. A major part of that is Chief Justice McFarland’s retirement*, but one must consider Biles’ record as a litigator (where for example he successfully advocated the Court’s ordering the Legislature to increase education spending). Now, an attorney has a job to do irrespective of his own beliefs, but it is implausible that he would be such a well-connected operator if he did not believe in what he argued for.

But while we must wait to see what impact Justice Biles will have on the law of Kansas it is worth noting that for the first time in its history a majority of the Justices of the Supreme Court will have been appointed by one Governor. For Kathleen Sebelius, a Democrat in an overwhelmingly Republican state, to claim this achievement is doubly notable. The Court she leaves behind as her tenure draws to a close has been stamped with her imprint.

And it is through those last two years of her tenure that we will see how the Court reflects the rest of her legacy. Conservative Republicans will doubtless note the symbolism of her appointing the architect of the Montoy case to the court as the State stumbles into a billion-dollar deficit they largely blame on that case. Democrats will see the Court as a firewall that can protect their interests in what looks to be an exceptionally challenging election cycle for them. And Sebelius herself ponders a Senate bid – one which is now uniquely vulnerable to the Court she picked handing down an unpopular decision.

Long after the Governor has moved on to other things, or retired from public life, the Kansas Supreme Court will extend her influence into the laws and precedents of the state. With Chief Justice McFarland’s retirement, the leadership of the State Judiciary automatically passes to Justice Robert Davis, but at least for the time being this won’t be the Davis court, but rather the Sebelius court.

*The Chief Justice has penned a few dissents in criminal cases in recent years, often the lone dissent. Most notable of these was Kansas v. Marsh which was ultimately overturned by the US Supreme Court. It is also fairly likely that that court will again endorse McFarland’s position and not her colleagues when it considers the case of Kansas v. Ventris later this month. [Note: both referenced cases were named as State v. … during their earlier history].

As predicted here, Sebelius names Biles to Kansas Supreme Court

January 7, 2009

Governor Kathleen Sebelius today named Overland Park Attorney and Democrat-donor Dan Biles to the vacancy on the Kansas Supreme Court caused by Chief Justice Kay McFarland’s mandatory retirement. We predicted that she would choose Biles last month. Of the three nominees, Biles was the most controversial, given his involvement in a number of high profile cases.

We will have more coverage later today.


Justice Biles is expected to formally take office next month. He will be up for a retention election in November 2010.

Click here for a link to our coverage of Dan Biles at the time he applied for the position.

Kansas Liberty covers the Biles appointment here.

Kansas Defenders covers it here.

Kansas Supreme Court Vacancy: list down to three

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

November 14th. There has been a lot of speculation recently about Governor Kathleen Sebelius’ future as a member of the Obama Cabinet. However, before she leaves us, Sebelius will be naming Chief Justice Kay McFarland’s successor to the Kansas Supreme Court. In doing so, she has an opportunity to shift the court decidedly to the left – with apparently no electoral future here in Kansas, it is not clear that there is any reason she won’t do so.

For that reason, it rather looks like Overland Park Attorney, Dan Biles, is the favorite for the Supreme Court vacancy. The eight applicants for the position have been described on this blog, and on November 14th the nominating commission narrowed the list to Biles (who represented the State Board of Education in the controversial Montoy school funding case), Douglas County Chief Judge Robert W. Fairchild and Court of Appeals Judge Tom Malone.

Both Fairchild and Malone are plausible-looking candidates, however Sebelius has twice had the opportunity to name Fairchild to the Court and has declined to do so – it is hard to see why she would choose differently on this third occasion. Malone has been nominated once before, and was also passed over by Sebelius. Of the three candidates he is the lowest profile, having spent many years as a trial judge before Sebelius elevated him to the Court of Appeals.

Sebelius must make her decision between now and January 13th.

Supreme Court Applicant: Thomas E. Malone

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

Thomas Malone (Washburn, 1979) is a member of the Kansas Court of Appeals, to which position he was appointed by Governor Kathleen Sebelius in 2003. Previously he was a district judge in the 18th Judicial District (Sedgwick County). He was elected to that position in 1990. His workload then was mainly as a trial judge. He has also been active within the Kansas Bar Association and Kansas Judicial Council.

This is his second attempt to gain a place on the Supreme Court – in 2006 he was one of three proposed by the Nominating Commission for the position ultimately filled by Justice Lee Johnson. Malone has actually sat on the Supreme Court under the substitution rules where for a given case a vacancy or recused justice’s place may be filled by another judge.

Publicly available campaign finance records show no political contributions by Judge Malone, either at the State or Federal levels.

Supreme Court Applicant: Ward E Loyd

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

Ward Loyd, who served in the Kansas State Legislature from 1998-2006, representing the 123rd District (Garden City) is an attorney who works for his own law firm. A Republican, he was described by the Kansas NEA as a “pro-public education stalwart”. In 2006 he was appointed as member and Chairman of the Kansas Advisory Group on Juvenile Justice and Delinquency by Governor Sebelius. Loyd’s Law Degree is from Washburn.

He is on the Executive Committee of the Kansas Alliance for Education, which endorsed Democrat Sue Storm in her successful candidacy for the State Board of Education. He has also made recent campaign contributions to Jerry Moran and Pat Roberts.

Interestingly, his old campaign website still lists a number of position papers which outline his views on several topics as a self described Eisenhower Republican, but raise a few questions. For example his paper on the Montoy case and surrounding controversy points out that he was one of a group of lawmakers who wanted to concentrate on fixing the funding issue before worrying about the (ultimately unsuccessful) appeal case. He makes an argument for why that was the right approach, but at the same time does not present his views on whether the courts involved in the Montoy case were correct under the law. In another example he partially dismisses concerns over gay marriage, saying that “this is Kansas, not Massachusetts, and especially not California”, but does not state how this fact of geography has a bearing on why the Kansas Courts would not follow the same path as the ones in those states.

Supreme Court Applicant: Steve A. Leben

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

Steve Leben, is a member of the Kansas Court of Appeals, to which position he was appointed in 2007 by Governor Sebelius. Previously he was a District Judge in the 10th Judicial District since 1993. Leben lives in Fairway. He received his law degree from KU, where he also took his undergraduate degree and was student body president. Leben retains ties to KU Law where he teaches a course on Statutory Interpretation.

Additionally, he was president of the American Judges Association, editor of Court Review (a journal for judges) and author of several law review articles and other publications. He has been recognized by the National Center for State Courts for his contribution to the improvement of the justice system. He even shows up on a review at

Politically speaking, Leben has made no contributions, but according to the Kansas Meadowlark he has switched party affiliation between Democrat and Republican more than once and his wife Ann Warner was a member of ‘Republicans for Moore’ in 2004. In December of 2007 he co-wrote an article in the Seattle Times criticizing Mitt Romney for an attack he had made on one of his own appointees. In all fairness, Romney’s attack was driven not so much by legal theory as by an attempt to insulate himself from blame for that judge’s release of a prisoner awaiting trial who subsequently absconded and murdered two people in Washington state.

The criticism of Romney is a hook on which the article hangs but it goes on to detail an issue which Leben and his co-author have published other works: the notion of procedural fairness in the justice system. This idea goes beyond traditional due process constraints (based around ensuring that all receive a fair and equal treatment under the law) and is concerned with ensuring that all who are involved in the justice system have the perception of a fair hearing as well. If Leben is appointed to the Supreme Court this would be expected to be an area of especial focus for him.

Supreme Court Applicant: Robert W. Fairchild

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

Robert Fairchild, Chief Judge of the 7th Judicial District (Lawrence), has the distinction of twice having been nominated to the Supreme Court by the Nominating Commission, only on both occasions to be passed over by Governor Sebelius, in favor of now Justices Rosen and Johnson. This track record certainly makes it likely that he will again make it to the shortlist. A graduate of KU Law (1973) he was appointed a judge by Governor Bill Graves in 1996.

A public records search shows no federal donations. Fairchild has faced some criticism over sentencing policies and has been a forceful defender of the judiciary. During a previous nomination he hit back at criticisms of the judicial system, stating:

“The judiciary is under attack, both on a state level and a national level, by individuals, by interest groups and by legislators — not only the judiciary, but the methods by which judges are selected,” … “I think you need to be prepared to speak out and to defend the system, and be prepared to be attacked.”

In the context of Kansas’ recent controversies over the role of the Supreme Court these remarks pretty clearly indicate where he positions himself.

Supreme Court Applicant: Dennis D Depew

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live.

Dennis Depew is an attorney at Depew Law Firm in Neodesha. His primary practice includes family law, estate planning, real estate, corporate, municipal, and alternative dispute resolution, and he is listed as the contact of several tax-exempt institutions. He graduated from KU Law in 1983 and has worked at Depew Law firm since then.

Depew is a member of the Board for Discipline of Attorneys, and is a District representative on the Kansas Bar Association. Public records indicate some political activity with Depew Law Firm donating $1000 to Paul Morrison in 2006. Depew himself donated $150 to Kathleen Sebelius during that political cycle too.