A proposed Wyoming Constitution change to make state Supreme Court nominees clear a state Senate confirmation died Tuesday – after numerous attorneys brought fierce debate to the legislative Judiciary Committee.
Wyoming lawmakers started contemplating changing the state’s largely non-transparent judicial selection process and adding an electoral check like state Senate confirmation after multiple high-profile cases raised concerns in the public.
Chief among those was Teton County District Court Judge Melissa Owens’ Nov. 18 ruling, saying abortion is health care and a fundamental right under the state Constitution.
That decision is pending in the Wyoming Supreme Court.
In another high-profile decision, Laramie County District Court Judge Peter Froelicher concluded in February that the legislature is not funding K-12 public education properly, and that the state Constitution requires state provision of one technological device per student, school resource officers, and mental health counselors in elementary schools.
The legislative Joint Judiciary in May directed the drafting of a proposed constitutional amendment to require the governor’s Wyoming Supreme Court appointees to clear a state Senate Confirmation before they could be seated.
On Tuesday at the same committee’s meeting in Casper, two former Wyoming Supreme Court Justices and numerous attorneys converged to oppose the draft resolution.
It died a narrow defeat hinging on the committee’s rule that drafts can’t advance without a majority vote from its members on the Senate side and its members on the House of Representatives side, independent of one another.
Committee Co-Chair Jared Olsen, R-Cheyenne, and Republican Senators Barry Crago (Buffalo) and Gary Crum (Laramie) voted “no,” killing the resolution in a 3-2 split.
Their fellow Republican Sens. Larry Hicks (Baggs) and John Kolb (Rock Springs) weren’t entirely sold on the resolution despite voting aye, but said they wanted to advance it to keep similar ideas in circulation.
Hicks characterized it as a bargaining chip, toward an alternate solution that some of the protesting lawyers conceded and some opposed: having the judicial nominating commission that selects three attorneys for the governor’s selection of one open its vetting process to the public.
“If we don’t have this amendment now, this discussion will not take place,” said Hicks. “That’s my rationale.”
Detractors of that idea say it will “chill” good candidates from applying to be justices because they won’t want to announce to the people who depend on them for case continuity that they’re willing to leave.
Proponents of the idea say it will give the public more insight into the way their potential judges operate and the way the system works.
On the House side and voting in favor were, Republican Reps. Marlene Brady (Green River), Laurie Bratten (Sheridan), Tom Kelly (Sheridan), Jayme Lien (Casper), Daniel Singh (Cheyenne), and Joe Webb (Lyman).
Rep. Ken Chestek, D-Laramie, voted no, along with Republican Rep. Lee Filer (Cheyenne), and Committee Co-Chair Art Washut, R-Casper.
The Swordfight
Hicks, Kolb and Kelly sparred with Alaina Stedillie, President of the Defense Lawyers Association of Wyoming, a body involved with civil litigation.
Stedillie pointed to the origins of Wyoming’s modified Missouri plan for judicial selection.
A judicial nominating commission consisting of three lay people chosen by the governor three attorneys elected by the Wyoming State Bar – presided over by the Wyoming Supreme Court Chief Justice – vets applicants for vacant judgeships and justice seats.
Those processes occur in private without announcing candidates’ names to the public or airing their applications or interviews.
The commission sends its three nominees from that slate to the governor, who appoints one of the three to the bench.
It’s a system dating back to 1972 and hatched in part by the late, former U.S. Sen. Al Simpson, who was a state legislator when he spearheaded the 1971 resolution to change the state Constitution.
Stedillie said lawmakers should trust the will of the people on that 1972 vote.
Kelly countered, noting that this provision would have to pass election ratification by the voters at the next election – after clearing a two-thirds majority of both legislative chambers.
“Is not moving forward the bill today a statement that we trust the people of Wyoming – today?” asked Kelly.
Stedillie questioned whether lawmakers are representing a cry of the people in the first place, in advancing the proposition.
“To me this smacks of out-of-state influences trying to hijack a system that is literally the envy of jurisdictions throughout the country,” said Stedillie.
She and other attorneys who have worked out of state and with out-of-state litigators attested to that: people being impressed by Wyoming’s generally apolitical courts.
The Weighted Hand
But the selection process even now isn’t free of political influence, said Hicks. He said “three of the last four” justices chosen were appointed prior to positions under the governor.
The assertion is close to the reality if imperfect: Wyoming Supreme Court justice biographies indicate that three of the last five appointees worked under the governor prior to being seated.
Fresh in state memory is the most recent: Gov. Mark Gordon this year appointed his own attorney general, Bridget Hill, to the bench of the state’s highest court.
“So the idea is that politics is not involved in the process (yet) then we end up with (that)?” said Hicks. “That doesn’t register as a concern, that there’s undue, weighted hand of influence associated with governors in that process?”
Stedillie said she’s gone through the nomination process twice as an applicant. She made it to the short list once, and neither time was appointed as judge.
And the commission and governor are having to choose from “candidates who apply,” she said. Some of those may have been serving as political appointees, yet the process is rigorous enough to choose good justices from among those, she said.
The Show
Stedillie also worried aloud that a Senate confirmation process would reduce the once issues-focused process of judicial nomination to a political show – similar to the U.S. Senate’s lengthy confirmation of Justice Brett Kavanaugh.
Kolb called that “an insulting connection.”
“To say we’d handle ourselves the same way as the U.S. Senate – I’m insulted,” he said. “I’d never stand for that level of rhetoric going back and forth.”
Stedillie didn’t back down.
She accused Kolb of making a political show even in his counterargument with her.
“You allege three of the last four (justices) have been political appointees,” she said. ‘What decisions have they authored indicating they’re not applying the law faithfully?”
“And,” Stedillie continued, “If you can’t point to a case and explain why it’s a political decision versus why it’s one faithful to the law – then I’d say your comment is not well taken, and is more based on scoring political points than it is on the actual facts of the matter.”
Even if the state Senate wouldn’t crumble into a political show now, it would over the course of time, she added, comparing the overwhelming Senate majority that confirmed Justice Ruth Bader Ginsburg to the tormented Kavanaugh vote.
Clair McFarland can be reached at clair@cowboystatedaily.com.
