Gov. Kathleen Sebelius received the names of the three nominees to take over Kansas Chief Justice Kay McFarland’s position today. McFarland is retiring Jan. 12 after having served 31 years as a Supreme Court justice, including five years spent as the chief justice. 

The candidates, selected by a committee dominated by lawyers and meeting in secret,  included Douglas County Chief Judge Robert W. Fairchild and Court of Appeals Judge Tom Malone. 

The third name may be the most controversial, however.

Overland Park attorney Dan Biles, a Washburn University law school graduate, was an assistant attorney general in 1980, and has been in private practice since. Among his most important clients: the State Board of Education and the Kansas Lottery.

Thus Biles has worked to defend two of Sebelius’ top causes, gambling and education.

Cases concerning both may soon come before the court. The situation could end up resembling the fiasco involving Justice Lawton Nuss, a school-board attorney turned Supreme Court justice who was caught by two Topeka Capital-Journal reporters meeting with State Sens. Steve Morris and Pete Brungart with a funding spreadsheet - as the court was considering whether to force the Kansas Legislature to raise spending levels for school boards. Nuss finally recused himself.

Sebelius has been a long-standing supporter of expanded gambling in Kansas and spoke out in favor of expanded gambling legislation efforts including Senate Bill 66, the gambling initiative that eventually managed to pass.

“This is an opportunity for our state to generate out-of state dollars from visitors to destination casinos, to reinvigorate the critical Kansas agribusinesses raising horses and greyhounds, and maximize state revenue while maintaining regulatory oversight,” Sebelius said in a 2007 statement praising Senate Bill 66. “Kansas priorities, such as deferred maintenance at our universities, local property tax relief, and providing significant help for problem gambling can be supported by this additional revenue – without raising taxes.”

During legal arguments over whether or not Kansas could own and operate the expanded gambling proposed by the legislation, Biles argued that Kansas had the ability to conduct gaming in Kansas and argued that a “lottery” could be considered any type of game that includes prize and chance, just like a lottery ticket.

Biles argued for increased school spending in the Montoy case, in which the court found that the Legislature must provide a substantial raise in school financing. The case, which involved Nuss' recusal, resulted in increased funding of education, adding $755.6 million to the school budget by the 2008-2009 school year.

Sebelius reacted to the ruling by saying it was good news and in 2007 signed legislation that included record-breaking $2.9 billion funding for Kansas K-12 schools, a plan that set in motion a $466 million increase of state aid to education over the next three years. 

Bob Corkins, former Kansas Education Commissioner, said he disagreed with the decision to nominate Biles. “I just don’t consider him the sort of well-rounded candidate that would be most suitable,” Corkins told Kansas Liberty. 

Corkins said it was a struggle to get Biles to argue for a quick resolution in the Montoy v. State decision, and that Biles only complied with the wishes of the majority of the State Board of Education after he was pressured to comply. 

“Dan and the minority on the state board felt the Supreme Court could have day-to-day involvement in overseeing the constitutionality of school funding - they thought it should be something the court continually looks at,” Corkins said. “A lot of pressure had to be brought on Dan to bring that case to an end. Through that pressure Dan complied and successfully won that argument, but he really had to be pushed into arguing that case.”

One of Biles' law partners, Larry Gates, is the chairman of the state Democratic party.

The other nominees appear, at first glance, to be less politically tied to Sebelius.

Fairchild has been a Douglas County district judge since 1996, and chief judge for the last six years. Before becoming a district judge Fairchild worked at Norwood, King & Fairchild and also worked at Riling, Burkhead, Fairchild & Nitcher.

Fairchild has been appointed to serve as a Court of Appeals judge three times and has been a finalist for a Supreme Court justice twice before. In 2007 Sebelius selected Lee Johnson over Fairchild and in 2005 Sebelius selected Eric Rosen over Fairchild.

Fairchild introduced Steven Six as the new attorney general in 2008 after Six was appointed by Sebelius.   

Malone has been a member of the Court Appeals for the last five years, and has also served as a Sedgwick County District Court Judge. Malone also worked with the Wichita firm of Redmond & Nazar before he was appointed to the district court bench.

During his time as a Court of Appeals judge Malone has written more than 500 decisions and heard more than 1,500 appeals. 

The three candidates were picked by the Supreme Court Nominating Commission, an independent constitutional body composed of nine members, only four of which are non-attorneys appointed by the Governor, and five are attorneys, including the commission’s chair. There are no public hearings and no public confirmation process.

Robert E. Davis is next in line for the chief justice position and will take over after the new justice is appointed.  Sebelius has about two months to make her decision.

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