Kansas Court of Appeals Judge Steve Leben acknowledged Tuesday that public confidence in the judicial system, and especially the U.S. Supreme Court, has been eroding in recent years, with public attitudes becoming more polarized along party lines, and he questioned how much longer that can last.

“I can’t tell you whether there’s ever been a time like this before in our country,” Leben said during a public forum at Kansas University. “My fear as a judge, though, is that we cannot sustain a long-term period where we have this sort of disparate view of the bedrock institution of our judiciary that protects the rule of law and keeps us all safe in having the constitutional rights that are guaranteed to us in the Bill of Rights.”

Leben spoke during a lunch-hour forum at KU. He also presided on a three-judge panel that heard oral arguments in five criminal case appeals. The events were part of the court’s annual Constitution Day observances, marking the anniversary of the Sept. 17, 1787, signing of the U.S. Constitution.

Kansas Court of Appeals Judges Patrick McAnany, left, Steve Leben and Michael Buser discuss the state of the judiciary and constitutional issues during a forum at Kansas University. The event was part of the court's annual Constitution Day observances. The judges also heard oral arguments in five appeals, including one from Douglas County.

“Today, all of this plays out in a background climate where people have an extremely high distrust of government at every level, and in every branch,” he said.

Although Leben’s remarks focused mainly on public opinion of the U.S. Supreme Court, they came at a time when the Kansas judiciary has found itself at the center of controversy itself amid rising tensions between the courts and the Kansas Legislature.

On Sept. 3, a Shawnee County judge struck down a 2014 statute that changes the way chief judges in district courts are selected. That ruling came despite a provision in this year’s judicial budget that says funding for the courts will become null and void if that 2014 law is struck down.

Later in the day Tuesday, a Neosho County judge issued an injunction, preventing a cutoff of funds for the courts, at least until next spring.

Much of the tension between lawmakers and the courts stems from a 2005 decision in a school finance lawsuit, when the Kansas Supreme Court ordered the Legislature to approve a massive increase in school funding. Another school finance case is pending before the Supreme Court this year.

Amid those tensions, lawmakers also passed a law in 2013 changing the way Court of Appeals judges are selected, eliminating the former merit-based selection process and giving the governor direct authority to appoint judges, subject to Senate confirmation.

Judge Patrick McAnany, who also was part of the three-judge panel that met in Lawrence, said he believes lawmakers will try to do something similar with the selection of Kansas Supreme Court justices, although that would require a constitutional amendment.

“There’s quite a move to try to do that — to, I would suggest, politicize the court,” McAnany said. “That effort has not borne any fruit yet, but the object would be to subject the Supreme Court to the selection process that we now have to go through.”

Constitutional cases

The panel’s session in Lawrence also gave students and the public a chance to see the appellate court in action and to ask the judges questions about the process after each set of cases.

The five cases heard Tuesday all involved criminal appeals. Most of the cases involved drug offenses, and most of the challenges concerned search and arrest warrants, and constitutional protections against illegal searches and seizures.

Kylie Kuhns, a third-year law student at Kansas University, makes oral arguments before a Kansas Court of Appeals panel on behalf of the state in a case involving a Lawrence drug crime.

One of those was a Douglas County case involving Tiffany Hubbard, who was convicted in 2014 of selling cocaine out of her home, which was also a licensed day care center.

Peter Maharry, an appellate defender from the Kansas Board of Indigents’ Defense Services, argued that the trial court never should have admitted evidence that Hubbard ran a day care center, calling that information irrelevant and prejudicial to the jury.

“This made the news because it involves a day care,” he said, arguing that the conviction should be overturned and the case remanded for a new trial. “It taints her in front of the jury.”

Kylie Kuhns, a third-year law student at KU and an intern in the Douglas County district attorney’s office, argued on behalf of the state. She said information about Hubbard’s day care license was important to establish that the home was, in fact, Hubbard’s residence.

The appeals court is expected to rule on the case within about 60 days.

Different panels of the 14-member appeals court held sessions Tuesday at Kansas State University in Manhattan and at Wichita State University.

Chief Judge Thomas Malone said in an earlier press release that the event is intended to give students “a chance to see their judicial branch of government at work” and might “help spark an interest in pursuing a legal career.”