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Sup Ct Nominating_TROOrder

Sup Ct Nominating_TROOrder

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Published by Ron Sylvester
A federal judge's order denying a temporary restraining order to block the Kansas Supreme Court Nominating Comittee.
A federal judge's order denying a temporary restraining order to block the Kansas Supreme Court Nominating Comittee.

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Published by: Ron Sylvester on Sep 14, 2010
Copyright:Attribution Non-commercial


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This matter comes before the court on plaintiffs Robert Dool,Julie Brown, Donald Rosenow, and Thomas Schermuly’s motion for atemporary restraining order (“TRO”) and a preliminary injunction.(Doc. 5). Defendants have responded (Doc. 9). The court held astatus conference on September 10, 2010. Plaintiffs declined to filea reply to defendants’ response, properly electing to make aconsolidated argument with respect to the TRO and preliminaryinjunction. Defendants concurred. Following helpful argument anddiscussion, the matter was taken under advisement. For the reasonsstated more fully herein, plaintiffs’ motion is denied.
Plaintiffs bring this action under 42 U.S.C. § 1983 against AnneBurke in her official capacity as chairman of the Kansas Supreme CourtNominating Commission (“the commission”), Kerry McQueen, PatriciaRiley, Matthew Keenan, and Jay Fowler in their official capacities asattorney members of the commission, and Carol Green in her officialcapacity as Clerk of the Kansas Supreme Court. Plaintiffs allege that
Case 6:10-cv-01286-MLB -KMH Document 18 Filed 09/14/10 Page 1 of 9
The parties agree that for the purposes of the preliminaryinjunction, it is unnecessary for the court to discuss the claimsregarding Carol Green, whose duties generally are discussed in K.S.A.20-119 through 123.
Kan. Const. art. III § 5(e) and K.S.A. 20-119 through 123
violate theEqual Protection clause and fundamental right to vote under theFourteenth Amendment. Specifically, plaintiffs allege that theelection of the five lawyer members of the commission, in which onlymembers of the Kansas bar are eligible to vote, violates the EqualProtection Clause.Kansas Constitution article III § 5 provides, in part:(a) Any vacancy occurring in the office of any justice ofthe supreme court and any position to be open thereon asa result of enlargement of the court, or the retirementor failure of an incumbent to file his declaration ofcandidacy to succeed himself as hereinafter required, orfailure of a justice to be elected to succeed himself,shall be filled by appointment by the governor of one ofthree persons possessing the qualifications of office whoshall be nominated and whose names shall be submitted tothe governor by the supreme court nominating commissionestablished as hereinafter provided.* * *(d) A nonpartisan nominating commission whose duty itshall be to nominate and submit to the governor the namesof persons for appointment to fill vacancies in theoffice of any justice of the supreme court is herebyestablished, and shall be known as the “supreme courtnominating commission.” Said commission shall beorganized as hereinafter provided.(e) The supreme court nominating commission shall becomposed as follows: One member, who shall be chairman,chosen from among their number by the members of the barwho are residents of and licensed in Kansas; one memberfrom each congressional district chosen from among theirnumber by the resident members of the bar in each suchdistrict; and one member, who is not a lawyer, from eachcongressional district, appointed by the governor fromamong the residents of each such district.Presently the commission is in the process of reviewing
Case 6:10-cv-01286-MLB -KMH Document 18 Filed 09/14/10 Page 2 of 9
applications and interviewing applicants for the open seat on theKansas Supreme Court created by Chief Justice Robert Davis’ retirementand unfortunate death. At the end of September, the commission willsubmit its three nominees to the governor. Therefore, the parties arein agreement that an expedited briefing schedule is necessary.Defendants will soon file a motion to dismiss and plaintiffs’memorandum in opposition will follow shortly thereafter. The partiesagree that the court’s ruling on that motion will resolve the case,one way or the other.
 A preliminary injunction is an extraordinary remedy. Schrierv. University Of Co., 427 F.3d 1253, 1258 (10th Cir. 2005). In orderfor the court to grant a preliminary injunction, plaintiffs mustclearly and unequivocally show that: (1) there is a substantiallikelihood of success on the merits; (2) they will suffer irreparableinjury unless the injunction is issued; (3) the threatened injuryoutweighs whatever damage the proposed injunction may cause theopposing party; and (4) the injunction, if issued, will not be adverseto the public interest. “[T]he limited purpose of a preliminaryinjunction ‘is merely to preserve the relative positions of theparties until a trial on the merits can be held[.]’” Id. In thiscase, there will be no “trial on the merits” in the sense ofpresentation of contested evidence because of the parties’ agreementthat the case can be resolved on its merits by the court’s ruling ondefendants’ motion to dismiss.Three types of preliminary injunctions are disfavored: “‘(1)preliminary injunctions that alter the status quo; (2) mandatory
Case 6:10-cv-01286-MLB -KMH Document 18 Filed 09/14/10 Page 3 of 9

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