Court hears case challenging constitutionality of new law on selecting chief judges and judicial funding

? A Shawnee County judge said Friday that he will rule “in the very near future” on a lawsuit that some legal experts say cuts to the very heart of an independent judicial system.

Judge Larry Hendricks heard oral arguments Friday in a case in which another judge, Larry Solomon of Kingman County, is challenging the constitutionality of a new law that changes the way chief judges in district courts are selected.

But he is also challenging the method by which Kansas lawmakers enacted that change. That’s because it was inserted as a proviso in a 2014 bill that also provided funding for the court system. And it was referenced again this year in a bill that funds the courts for each of the next two years.

In both of those bills, lawmakers inserted a “nonseverability clause,” meaning that if any part of the bill, such as the new system for selecting chief judges, is struck down by the courts, then all of the other pieces of the bill, including funding for the courts, also become null and void.

Matthew Menendez, left, of the Brennan Center for Justice, and Kansas Solicitor General Steve McAllister get acquainted following a court hearing Friday in Shawnee County. Moments earlier, the two were on opposite sides of a case that could determine how much control the Kansas Legislature can exert over the judicial branch.

In other words, as Solomon’s attorney Pedro Irigonegaray put it, if Judge Solomon wins his case, then all funding for the Kansas court system becomes nullified.

“The only motivation,” Irigonegaray said, “is the Legislature’s and the governor’s desire to gain a political advantage.”

“It is an attempt to intimidate a separate and independent branch of government,” he said, calling the maneuver “nondemocratic and tyrannical.”

Matthew Menendez, an attorney for the Brennan Center for Justice at New York University, served as co-counsel with Irigonegaray — evidence that the case is generating attention within national legal circles as well.

“I have spoken with a lot of people outside the state who have been paying close attention to this case,” Menendez said after the hearing.

Before the new law was passed, the Kansas Supreme Court determined who would serve as chief judges in each of the districts.

That was based on Article 3 of the Kansas Constitution, which gives the Supreme Court general authority over the administration of the entire state court system. Solomon’s lawsuit says the new law, which says chief judges will be elected by the other judges in the district, violates that constitutional provision, as well as the general separation of powers doctrine.

The suit also claims that linking judicial funding to the outcome of the lawsuit is unconstitutional as well.

Solomon has served as chief judge in the 30th Judicial District in Kingman County since 1991 and is currently the longest-serving chief judge in the district court system in Kansas.

But Steve McAllister, a Kansas University law professor who also serves as solicitor general for the Kansas Attorney General’s Office, defended the law.

He argued that the Legislature was not usurping a power delegated to the courts because even under the new law, other judges are still in charge of selecting their chief judge. He also said that’s the same system used in most other state court systems, and it’s not unlike school boards, city councils and county commissions where members of the body choose their own chairperson.

McAllister also argued that another provision in the Kansas Constitution, Article 2, Section 18, which gives the Legislature authority to, “provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in this constitution.”

Because chief judges are state officers, and because the Constitution does not specify how they are selected, McAllister said, the Legislature has authority to enact laws governing how they are selected.

Menendez said there is more to the case than merely the selection of chief judges.

“Nationwide, we are seeing tensions between state judiciaries and the other branches of state governments where there is pressure being put on courts, often related to decisions that are seen as unpopular by the other branches of government,” he said.

Sen. Jeff King, R-Independence, who chairs the Senate Judiciary Committee, said during the 2015 session that the change came at the request of some judges in Sedgwick County, one of several counties where judges are elected in partisan races.

He said that chief judges have significant authority over budgets, hiring staff, allocating court resources, and sometimes even assigning cases. Because of that, he said, the selection of the chief judge should be made by people closest to the voters, not by the Supreme Court.

But Democrats have said it’s an issue of the Legislature trying to intimidate the courts. They argue that if the Legislature can link funding for the courts to the outcome of this case, they can also do it for school finance litigation or even abortion-related lawsuits.

Menendez of the Brennan Center said any such linkage should be cause for concern.

“I think it’s very worrisome when you’re linking the funding for the courts to the outcome the outcome of any particular case,” he said. “I think that should be of very great concern to the people of Kansas.”