Attorneys file arguments in judicial power case

Attorneys for a south-central Kansas judge argued that Kansas lawmakers tried to disempower the judicial branch of government when they passed a bill changing how chief District Court judges are selected last year.

The case, which goes before the Kansas Supreme Court on Dec. 10, has attracted national attention because its outcome could threaten the judicial branch’s funding and cause courts to close. Attorneys for the state and plaintiff Judge Larry Solomon, chief judge of the 30th Judicial District, both submitted briefs to the court Wednesday.

The Legislature passed a bill in 2014 saying District Court chief judges would be selected by a vote of their peers. They had previously been appointed by the Kansas Supreme Court. Critics of the policy say that it violates the separation of powers guaranteed in the state’s Constitution.

“The Legislature has unconstitutionally exercised significant control over the judiciary … by nullifying the Court’s ability to select its surrogates – chief district court judges,” argue Solomon’s attorneys, Pedro Irigonegaray and Elizabeth Herbert.

Their brief contends that “the Legislature’s specific objective of disempowering this Court is further demonstrated by its subsequent passage” of a bill this year “which would defund the entire judiciary” if the policy change is declared unconstitutional.

The policy was declared unconstitutional by a district court this summer; a judge’s order has blocked the provision that takes away the court’s funding from going into effect.

Attorneys for the state argue in their brief that “peer selection of chief district court judges does not prevent the Supreme Court from exercising its general administrative authority” because chief judges remain “subject to supervision” by the Supreme Court.

“Indeed, judicial independence in the lower courts could be threatened if the Kansas Constitution authorized the Supreme Court to ‘administer’ those courts with an iron fist,” the state’s brief argues. “Instead, this Court’s administrative authority is only ‘general’ in nature.”

Attorney General Derek Schmidt has asked that members of the Kansas Supreme Court recuse themselves from the case because they had previously spoken out about the policy change and because the outcome of the case will directly affect their power.

Chief Justice Lawton Nuss said in September that members of the court would not necessarily have to recuse themselves.

This story was originally published November 25, 2015 at 5:26 PM with the headline "Attorneys file arguments in judicial power case."