Kansas Supreme Court hears separation-of-powers case involving the court

The Kansas Supreme Court heard oral arguments Thursday in a case that pits the legislative branch against the court itself.

When legislators approved a 2014 law to strip the Supreme Court of its power to appoint chief district judges, a major separation-of-powers issue arose.

Lawmakers shifted the selection authority to the judges in each of the state’s 31 judicial districts. Rather than appointment by the Supreme Court, chief judges in each district were to be elected by the judges in the district.

Pedro Irigonegaray, lawyer for the chief judge who is challenging the law, told the Supreme Court the move was “unconstitutional interference.”

But Kansas Solicitor General Stephen McAllister argued that the Legislature created the chief judge position by statute and it was well within its rights to change the selection process, even a process established by the Supreme Court.

The state constitution gives the court “general administrative authority” over the judicial system, but not exclusive authority, McAllister said. He noted that the selection process created by the Legislature is similar to the process in other states.

“Several of our neighboring states use this system and have for a long time,” McAllister said.

Chief Judge Larry T. Solomon challenged the law in Shawnee County District Court, saying it violated the separation-of-powers doctrine and was unconstitutional. The Shawnee County court judge agreed, ruling that the Supreme Court’s power to administer the judiciary was granted by the state constitution, and the 2014 law interfered with that authority. The state appealed to the Supreme Court.

Irigonegaray argued Thursday that the Legislature’s action not only substantially interfered in the judiciary’s operation but created a chaotic situation for the courts.

“We have a system that has worked well for 40 years,” he said.

The dispute drew national attention earlier this year when the Legislature passed a law stating that if the new selection process were ruled unconstitutional, the budget for the state’s entire court system would be invalidated through June 2017.

The enforcement of that law was placed on hold until lawmakers return to Topeka for the 2016 legislative session.

Justice Carol Beier asked both sides whether that second law should be considered when trying to determine the Legislature’s “motive and intent.”

McAllister said the later law was irrelevant to the Solomon case. Irigonegaray disagreed vehemently. The Solomon case was before the Shawnee County District Court earlier this year when lawmakers approved the second law that threatened court funding, he said.

“That’s outrageous,” Irigonegaray said. “Separation of powers was not intended to have one branch of government do away with another.

“It’s an attempt to tell the court, ‘Do it our way or your budget is destroyed.’ ”

Weighing the statute that changed the selection process against the Supreme Court’s rule, which gives the court the authority to appoint chief judges, Irigonegaray said the constitution requires that the Supreme Court prevail.

But McAllister said the Legislature’s authority is clear. It was a statute that created the chief judge position in the first place, so lawmakers could even abolish the position by repealing that law, he said.

Beier asked McAllister if legislators could alter the selection of, say, the Transportation Department secretary, switching it from the governor’s appointment to an election by department employees.

Yes, McAllister said, but added, “I doubt they would.”

“Why not?” she said. “They did this.”

Chief Justice Lawton Nuss recused himself from the case, and the court assigned retired Douglas County district judge Michael Malone to sit for oral arguments. The state had requested that all justices recuse themselves, but the court issued an opinion that recusal wasn’t required.

This story was originally published December 10, 2015 at 12:06 PM with the headline "Kansas Supreme Court hears separation-of-powers case involving the court."