1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 114,573

L ARRY T. S OLOMON , C HIEF J UDGE , 30 TH J UDICIAL D ISTRICT OF THE S TATE OF K ANSAS ,

Appell ee ,

v

.
S TATE OF K ANSAS , Appell ant

.

SYLLABUS BY THE COUR T

1. Whether a party has standing to pursue a declaratory judgment action is a question of law subject to unlimited review on appeal.

2

. In order to establish standing, a plaintiff must show that he or she su ffered a cognizable injury and that there is a causal connection between the injury and the

c hallenged conduct.

3

. In order to establish a cognizable injury, a party must show that he or she has a personal interest in the outcome of a case and personally suffers some actual or threatened injury as a result of the challenged conduct.

4

. A judge with conflicting official duties imposed by law has a justiciable interest in obtaining a judicial resolution of the conflict.2

5

. The history and context of the 1972 amendment to Article 3, § 1 of the Kansas
C onstitution show that the Supreme C ourt ' s gene ral administrative authority includes the power to make rules for process, practice, and procedure at all levels of the unified court system.

6

. The written C onstitution of Kansas is paramount law because it emanates directly from the people.

7

. A s a gen eral rule, the legislature may enact statutes to facilitate or assist in the operation of a constitutional provision, but such legislation must be in harmony with and not in derogation of the constitution.

8

. The doctrine of independent governmental branches is firmly entrenched in United
States and Kansas constitutional law.

9

. The powers e ntrusted to government are divided into three branches

— the executive, the legislative, and the judicial

— and the persons e ntrusted with power in any
one of these b ranches may not encroach upon the powers conf erred by the people upon
the others

.3

1 0

. The doctrine of separation of powers is an inherent and integral element of the republican form of government and is expressly guaranteed to the states by the federal
C o nstitution.

1 1

. The Kansas Supreme Court has the authority and duty to preserve the constitutional division of powers against disruptive intrusion by one branch of government into the sphere of a coordinate branch of government. In order for the
interference by one department with the operations of another department to be unconstitutional, the intrusion must be significant.

1 2

. In reviewing whether one branch of government has significantly interfered with the operations of another branch to the point of vio lating the doctrine of separation of powers, courts consider four factors: (1) the essential nature of the power being exercised; (2) the degree of control by one branch over another; (3) the objective sought to be attained; and (4) the practi cal result of blending powers as shown by actual experience over a period of time.

1 3

. The Kansas S upreme C ourt ' s general administrative authority includes the power to promulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice.4

Appeal from Shawnee D istrict C ourt; L ARRY D. H ENDRICKS , judge

. Opinion filed December 23 , 20 15

. Affirmed.

Stephen R. McAllister
, solicitor g eneral, argued the cause
, and Jeffrey A. Chanay , chief deputy attorney general, and Dwight R. Carswell , assistant solicitor g eneral, were with him on the briefs for appellant.

Pedro L. Irigonegaray, of Irigonegaray & Associates, of Topeka
, argued the cause , and Elizabeth
R. Herbert

, of the same office
, was with him on the briefs for appellee.

Steven C. Day , of Woodard, Herna n dez, Roth & Day , LLC, of Wichita, and Amy S. Lemley , of Foulston Siefkin LLP, of Wichita, were on the brief for amicus curiae Kansas State Committee of the American College of Trial Law yers.

Karen Michelle Donnelly of Copilevitz & Canter, LLC, of Kansas City, Missouri, Stephen Douglas Bonney , of ACLU Foundation of Kansas, of Kansas City, Missouri, and Micheline Z. Burger , of Longmont, Colorado, were on the brief for amicus curiae Americ an Civil Liberties Union Foundation of
Kansas.

The opinion of the court was delivered by

R OSEN , J

. : In 1861, the people of the new State of Kansas adopted a constitution that assigned judicial power to a supreme court and to various lower courts:

" The judicial power of the S tate shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; and all courts of record shall have a seal
, to be used in the authentication of all process. " Kan. Const. art. 3, § 1 (1861).

This multi

- tiered system vested judicial power in both the Supreme C ourt and district courts, and the legislature provided rules for the administration of those courts

.5

For example, t he General Statutes of Kansas
, 1949 , provided that seniority on the bench was the criterion for designating a " presiding judge " in larger judicial districts. G.S. 1949,
20

- 502, 20

- 602. The presiding judge had the authority to mak e " reasonable and uniform

r ules " for assigning actions and practice, for directing business, and for hearing motions,

as long as those rules were not inconsistent with the code of civil procedure. G.S. 1949,
20

- 502.

In 1965, the Kansas L egislature passed the Judicial De partment Ref orm Act,
K.S.A. 1965 Supp. 20

- 318 et seq

. The Kansas Supreme C ourt adopted rules implementing the Act. See Report of the Judicial Advisory Committee
, 13 Washburn L.J. 271, 366 (May 1974). In 1966, the Kansas Supreme Court promulgated a new rule governing the assignment of cases in multiple

- judge districts, effective July 1, 1967. In relevant part, it read:

" In judicial districts comprised of one county which has seven or more judges

. . . [all non

- probate cases] shall be under the supervision and control of the Administrative Judge, who shall be designated by this Court. All cases shall be assigned by the
A dministrative Judge for trial to the other divisions of the District Court. The Administrative Judge may assign pretrial motions, pretrials and other pr eliminary matters
to other divisions of the District Court. " Rule 120(b), 197 Kan. lxxiv (1966).

In 1968, the Kansas Legislature codified Rul e 120(b) by enacting K.S.A. 1968 Supp. 20

- 329, which read:

" In every judicial district having more than one divi sion, the supreme court may designate an administrative judge who shall have general control over the assignment of cases within said district court subject to supervision by the supreme court. "6

As we explained in Behrmann v. Public Employees Relations Bo ard , 225 Kan. 435, 438

- 42, 591 P.2d 173 (1979), i n 1968, the legislature established a citizen ' s committee to study and propose amendments to the constitutio n. L. 1968, ch. 265. In February 1969, that committee submitted its 124

- page report to the legislat ure

. Among the significant recommended changes in Article 3 was the creation of " a unified court with overall administrative and procedural rule

- making powers in the supreme court
branch thereof. " Report of the Citizens' Committee on Constitutional Revisio n, p. 43 (February 1969); see Behrmann
, 225 Kan. at 440.

The committee ' s commentary on the proposed changes revealed that the purposes behind amending A rticle 3, section 1, included the " [ p ] roper supervision, administration and discipline of judicial personnel " and " steadfast recognition of and insistence upon vigilant maintenance of the doctrine of separation of powers

— with the three branches of government free from encr oachments of each other

. " (Emphases added.) The report
added that a proposed const itutional amendment unifying the court system

" would create a unified court with overall administrative authority in the supreme court branch thereof and would vest the supreme court with rule making power regarding process, practice, and procedure at all levels of the unified court , as well as regarding appeals. Such rule making power is, in reality, an i nherent power of the judiciary

. " (Emphases added.) Report of the Citizens ' Committee
, p. 43.

In 1972, the voters of the s tate of Kansas , in keeping w ith the recommendations of
the C itizens ' C ommittee, ratified an amend ment to Article 3, § 1, of the c onstitution,
which now reads:

" The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law, and all courts of record shall have a seal. The supreme7 court shall have general administrative authority over all courts in this state

. " (Emphasis added.)

In 1973, a Judicial Study Advisory Committee was formed pursuant to legislative authorization contained in Senate Joint Resolution No. 2 (1973 Session). Its purpose was to assist in a survey and study of the Kansas court system and to make recommendations to the judiciary and the legisl ature. See 13 Washburn L.J. at 273.

Among the ills that the Advisory Committee found in need of a cure was

" fragmentation of judicial power, " resulting in part in the " unnecessary variations in the practices and procedures of individual local c ourts

. " (Emphasis in the original.)
13 Washburn L.J. at 294. " Sound judicial administration requires clear lines of responsibility a nd authority as well as the res ou r ces adequate to ensure effective implementation of administrative policy. " (Emphasis adde d.) 13 Washburn L.J. at 360. Accordingly, the Advisory Committee determined that " a ppointment procedures and trial court management " lay among the Supreme C ourt ' s policy

- making responsibilities under the new, unified court structure. 13 Washburn L.J. at 36 2. This meant that the Chief Justice of the Supreme C ourt would exercise " general supervision over all matters " subject to the Supreme C ourt ' s policy

- making power, including financial affairs of the
courts and " the assignment of judges at all levels

. " (Emphasis added.) 13 Washburn L.J.

at 364. In keeping with this mission , the Advisory Committee recommended that the Supreme C ourt " appoint a district judge to be the administrative judge of the unified district court in each judicial district. " 13 Washbu rn L.J. at 366.8

In 1976, the Supreme Court struck what had been Rule 120 and adopted a new Rule 107, which read in relevant part:

" In every judicial district the Supreme Court shall designate an administrative judge who shall have general control over t he assignment of cases within said district under supervision of the Supreme Court. Assignment of cases shall be designed to distribute as equally as is reasonably possible the judicial work of the district. The administrative judge of each district shall be responsible for and have general supervisory authority over the clerical and administrative functions of the court. " 220 Kan. lvii (1976).

Th is rule has since been modified and, effective July 1, 2012, Rule 107 now states in relevant part:

" (a) The S upreme Court will appoint a chief judge in each judicial district.

(1) Appointment. The Supreme Court will appoint a chief judge in each judicial district.

(2) Term. A chief judge is appointed for a 2

- year term that begins January 1 in an even

- numbered year. An interim appointment is for the
remainder of the 2

- year term.

(3) Reappointment. On or before November 30 in an odd

- numbered year, an incumbent chief judge must notify the Supreme Court whether the judge wishes to be reappointed.

(4) Recommendati on. A judge of the district court may recommend to the departmental justice the appointment of a chief judge for the judge ' s district. The Supreme Court must keep any recommendations
confidential. " (2015 Kan. Ct. R. Annot. 202.)9

K.S.A. 20

- 329 also has bee n modified over time to harmonize it with Rule 107

. I n 1999 , it was amended to read:

" In every judicial district, the supreme court shall designate a district judge as chief judge who shall have general control over the assignment of cases within the
dis trict, subject to supervision by the supreme court. Within guidelines established by statute, rule of the supreme court or the district court, the chief judge of each district court shall be responsible for and have general supervisory authority over the c lerical and
administrative functions of such court. " L. 1999, ch. 57, sec. 17.

During the 2014 legislative session, the Kansas Legislature passed Senate
Substitute for House Bill No. 2338. Section 11 of H.B. 2338 amended K.S.A. 20

- 329,
which now reads:

" In every judicial district, the district court judges in such judicial district shall elect a district judge as chief judge who shall have general control over the assignment of cases within the district, subject to supervision by the supreme court. The pr ocedure for such election shall be determined by the district court judges and adopted by district court rule. Within guidelines established by statute, rule of the supreme court or the district court, the chief judge of each district court shall be respon sible for and have general supervisory authority over the clerical and administrative functions of such court. The district judge designated as chief judge by the supreme court on July 1, 2014, shall be allowed to serve as chief judge through January 1, 20 16. " K.S.A. 2014 Supp. 20

- 329.

Section 43 of H.B. 2338 is a nonseverability clause, which states:

" The provisions of this act are not severable. If any provision of this act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision. " L. 2014, ch. 82, sec. 43, effective July 1, 2014.10

Larry T. Solomon is the chief judge of the 30th Judicial Dist rict of Kansas. He was initially appointed to serve as chief judge on July 1, 1991, and he has been reappointed continuously through the present. U nder K.S.A. 2014 Supp. 20

- 329 ( sec. 11 of H.B. 2338) , his current t erm will end on January 1, 2016, and under Rule 107(a) his current term will end on December 31, 2015.

On February 18, 2015, Solomon filed in Shawnee County District C ourt a petition seeking a declaratory judgment under K.S.A. 60

- 1704. Solomon sought relief in th e form of a judgment declaring sec

. 11 of H.B. 2338 an unconstitutional encroachment on the constitutional authority of the Kansas Supreme Court to a dminister the judiciary of the

s tate. Solomon also sought to have the entirety of H.B. 2338 decl ared invalid, arguing
that if sec. 11 was dec lared unconstitutional, the nonseverability clause within sec. 43 prevented the remainder of the bill from being saved.

In response, the State of Kansas filed a motion to dismiss, asserting a lack of standing on Judge Solomon ' s part and contending that, as a matter of law, the legislative action was not unconstitutional. Judge Solomon countered with a motion for summary judgment, asking that the district court render a decision on the merits.

On September 2, 2015, the distric t court filed a memorandum decision and order
that denied the State ' s motion to dismiss and granted Judge Solomon ' s motion for summary judgment. On September 3, 2015, the State filed an emergency motion to stay the order pending appeal, in which it asked t he district court to stay that part of its order striking all of H.B. 2338 because of the non severability clause. On that same day, the district court granted the motion to stay.

The State filed a timely notice of appeal to this court based on K.S.A. 60

- 2101(b), which permits a final judgment in a civil action in which a state statute was held to be11

unconstitutional to be appealed directly to this court . On appeal, the State asserts two grounds for reversing the judgment of the district court: lack of ju sticiability on Solomon ' s claim for relief and error by the district court in finding a violation of the separation of powers doctrine. We address these issues i n turn.

J USTICIABILITY

The State initially argues that this case does not present a justiciab le case or controversy because Solomon has not suffered and may never suffer a co gnizable injury
as a result of sec. 11 taking effect. The State contends that Solomon therefore lacks standing to chal lenge the constitutionality of sec. 11 and that the matter is not yet ripe for adjudication.

We apply an unlimited standard of review to determine whether Solomon has standing to request a declaratory judgment regarding sec. 11 ' s constitutionality and whether the issue is ripe for decision . See Shipe v. Pub lic Wholesale Water Supply Dist.
No. 25 , 289 Kan. 160, 165

- 67, 170, 210 P.3d 105 (2009) (applying unlimited standard of review to determine whether district court lacked jurisdiction to render decision because plaintiffs lacked standing a nd issues they presented were not ripe for adjudication); s ee also Gannon v. State , 298 Kan. 1107, 1118

- 19, 319 P.3d 1196 (2014) (w hether a claim is justiciable is question of law); Robinson v. Kansas State High Sch ool Activities Ass'n , 260 Kan. 136, 139, 917 P.2d 836 (1996) (applying unlimited standard of review to
district court ' s decision reg arding plaintiff ' s standing in declaratory judgment action).

Solomon brought his action under K.S.A. 60

- 1704 of the Declaratory Judgments Act, K.S.A. 60

- 1701 et se q . K.S.A. 60

- 1704 of that Act states:

" Any person having an interest under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are12

affected by a statute , municipal ordinance, contrac t or franchise, may seek determination of any question of construction or validity arising under that enactment, document or agreement and may obtain a declaration of rights, status or other legal relations
thereunder. " (Emphasis added.)

Also relevant to our analysis is K.S.A. 60

- 1701 , which states that " [c] ourts of record within their respective jurisdictions shall have power to declare the rights, status, and other legal relations whether or not further relief is, or could be sought. "

In order to show he had standing to bring a declaratory judgment action, Solomon alleged within his petition that

" [a]s a member of the Kansas judiciary and the chief judge of his district, Judge Solomon has a direct interest in the integrity and viability of the Kansas unified court system as well as the Kansas Supreme Court ' s vital role in administering the various courts comprising that system, including the district court of the 30th Judicial District. As Chief Judge of one of the district courts directly impacted by H.B. 2338, plaintiff ' s status, and other legal relations , are directly affected by the legislation, and thus has standing to
seek a declaration of H.B. 2338 ' s invalidity pursuant to K.S.A. 60

- 170 4. " (Emphasis added.)

Later in his petition, Solomon noted t hat certain provisions within sec. 11 that call
for district court judges in each judicial district to elect their own chief judge and to adopt by district court rule a procedure for conducting such an election were in direct conflict with Rule 107, which states that the Supreme Court will appoint a chief judge in each judicial district for a 2

- year term beginning January 1 in an even

- numbered year. The rule also provides that any current chief judge who wishes to ser ve a subsequent 2

- year term must notify the Supreme Court on or before November 30 in an odd

- numbered year of
his or her desire.13

Under the plain language o f the Declaratory Judgments Act, Solomon has standing
to chal lenge the constitutionality of sec. 11 because the statute undoubtedly affects his

" rights, status or other legal relations " as the current chief judge of the 30th Judicial
District. See K.S.A. 60

- 1704. Section 11 requires Solomon, along with the other judges in the 30th Judicial District, to d evelop and adopt a procedure for electing among themselves a chief judge pri or to January 1, 2016. Because sec. 11 conflicts with Rule 107, Solomon undoubtedly faces uncertainty and insecurity as to whether he should implement a procedure for electing a ch ief judge or whether he should proceed under
Rule 107 and inform this court as to whether he wishes to serve another 2

- year term. The dilemma Solomon currently faces is of the nature that the Declaratory Judgments Act was specifically enacted to resolve. S ee K.S.A. 60

- 1713 (act is remedial in nature and its purpose is " to settle and provide relief from uncertainty and insecurity with respect to disputed rights, status and other legal relations " ; should be liberally construed and
admin istered to achieve that purpose ).

The State notes that, the language of the Declaratory Judgment s Act notwithstanding, the case law of this state still requires that a decl aratory judgment action involve an actual case or controversy. See
, e.g. , State ex rel. Morrison v. Sebe lius , 285 Kan. 875, 897, 179 P.3d 366 (2008) (actual cases and controversies are required in declaratory judgment cases); Wagner v. Mahaffey , 195 Kan. 586, 589, 408 P.2d 602 (1965) (well established in this jurisdiction that even in declaratory judgment ac tions involving the validity of a statute there must be actual controversy between parties). In order for a legal dispute to present a case or controversy ( i.e. , be justiciable ) under Kansas law, it must satisfy four elements: (1) the plaintiff must have s tanding; (2) the issue raised cannot be moot; (3) the issue must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (4) the issue cannot present a political question. See Gannon , 298 Kan. at 1119 ; Sebelius , 285 K an. at 891

- 92. Again,14

the State argues that this matter does not present a justiciable case or controversy because (1) Solomon lacks standing and (2) his claim is not yet ripe.

Under Kansas law, in order to establish standing, a plaintiff must show that ( 1) he or she suffered a cognizable injury and (2) there is a causal connection between the injury and the challenged conduct. Kansas B ldg

. Industry Workers Comp

. Fund v. State
, 3 02
Kan. 656 , 678 , 359 P.3d 33 (2015); Gannon , 298 Kan. at 1123. And in order to establish a cognizable injury, a party must show " a personal interest in a court ' s decision and that he or she personally suffers some actual or threatened injury as a result of the challenged
conduct. " Sierra Club v. Mo ser , 298 Kan. 22, 33, 310 P.3d 360 (2013). With regard to whether a matter is ripe for adjudication, we have stated:

" As a general rule the courts will not give a construction to or declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, and uncertain, unless a present right depends upon the decision or there are other special circumstances to satisfy the court that it is desirable at once to decide on the future rights. " Woolums v. Simonsen
, 214 Kan. 722, Syl. ¶ 5, 522 P.2d 1321 (1974).

The State argues that because Solomon has not lost and may never lose his position as chief judge as a result of sec. 11 going into effect, he has not suffered a cognizable injury that would give him standing to challenge sec. 11 in a declaratory judgment action. For the same reason, the State argues that the matter is not ripe for adjudication.

In making this argument, the State suggests that the only injury Solomon could suffer that would give him standing and make this matter ripe is the loss of his position as chief judge. But t his assertion frames the injury inquiry too narrowly. The S tate fails to acknowledge that sec. 11, as already noted, places an additional burden upon Solomon by directing him, alon g with the other judges in the 30th Judicial District, to develop and15

adopt a new district court rule establishing a chief judge election procedure prior to January 1, 2016

.

Although Rule 105 (2015 Kan. Ct. R. Annot. 200) provides that local district cou rt rules are adopted by a majority vote of district court judg es within a judicial district, Solomon, as chief judge, is personally tasked with marshalling the process to adopt the required cou rt rule. See K.S.A. 2014 Supp. 2 0

- 342 ( " After consultation with the district magistrate judges of such court, each district court, by action of a majority of the district judges thereof, may promulgate such rules as may be necessary to provide for the administrative operations of such court

. . . . " [Emphasis added.]); Supreme Court Rule 105(a)(2) (2015 Kan. Ct. R. Annot. 200) ( " After consultation with the district magistrate judges, the district judges of a judicial district, by majority vote, may adopt rules that are .

. . necessary for the jud icial district ' s administration

. " [Emphasis added.]); Supreme Court Rule 107(b)(1) (2015 Kan. Ct. R. Annot. 202) ( " The chief judge is responsible for and has supervisory authority over the court ' s clerical and administrative functions

. " [Emphasis a dded.]). Additionally, because sec. 11 conflicts with Rule 107, Solomon
faces a dilemma between his official duties that is personal to him: should he go forward with implementing a new procedure for electing a chief judge, or should he proceed
under Rule 107 ?

A ccordingly, we conclude that Solomon has suffered a specific, personal, and

co gnizable injury as a result of sec. 11 taking effect. He therefore has standing to bring a declaratory judgment action challeng ing the constitutionality of sec. 11. Because no
ad ditional facts need to arise or be developed in the record , the matter also is ripe for adjudication.16 S EPARATION OF P OWERS

The Ka nsas Constitution vests in the Supreme C ourt general administrative authority over all courts in this state. Solomon contends H.B. 2338 represents an impermissible inva sion by the legislature of the Supreme C ourt ' s constitutional administrative authority.

Whether a statute is constitutional is a question of law subject to de novo review. State ex rel. Six v. Kansas Lottery , 286 Kan. 557, 562, 186 P.3d 183 (2008). A statute is presumed to be constitutional, and all doubts must be resolved in favor of constitutionality. If a court can find any reasonable way to construe a statute as constitutionally valid, it must do so. Sebe lius , 285 Kan. at 883

- 84

. Before a statute may
be struck down, the constitutional violation must be clear. Leek v. Theis , 217 Kan. 784, 792, 539 P.2d 304 (1975).

The 1 972 amendment to Article 3, § 1 of the Kansas Constitution vested in t he
S upreme C ourt " general administrative authority over all courts in this state

. " That phrase is not defined within the provisions of the constitution. In the absence of defining language, constitutional language is deemed " ' to mean what the words imply to the
common under standing of men. In ascertaining the meaning of a constitutional provision
courts consider the circu mstances attending its adoption and what appears to have been the understanding of the peop le when they adopted it. ' " Leek
, 217 Kan

. at 793 (quoting Higgins v. Cardinal Manufacturing Co ., 188 Kan. 11, Syl. ¶ 2, 360 P.2d 456, cert. denied 368 U.S. 829 [1961]

.

The history of the 1972 amendment, based on the recommendations of the
Citizens ' Committee on Constitutional Revision outlined above, demonstrates
unmis takably that the voting citizens understood that the " general administrative17

authority " included the power to make rules for process, practice, and procedure at all levels of the unified court system.

Immediately following the adoption of the 1972 amendm ent, the Judicial Study Advisory Committee emphasized that the amendment was grounded in part on the need for clear lines of responsibility and authority in the administration of district court s ultimately le a d ing back to the Supreme C ourt. For that reason, appointment procedures and the assignment of judges were the responsibility of the chief justice , subject to the Supreme C ourt ' s policy

- making authority, under the new constitutional provision. The administrative and appointment powe rs were considered inherent

.

The written constitution is paramount law because it emanates directly from the people. In re Tax Application of Lietz Constr. Co.
, 273 Kan. 890, 903, 47 P.3d 1275 (2002). As a general rule, the legislature may enact legislat ion to facilitate or assist in the operation of a constitutional provision, but such legislation must be in harmony with and not in derogation of the constitution. State
, ex rel., v. Board of Education , 212 Kan. 482, 488, 511 P.2d 705 (1973). A review of t he history of the rules governing the appointment of what are now known as chief judges reveals such a harmony betwee n the procedures set up by the Supreme C ourt and the laws enacted by the legislature.

Following the passage of the Judic ial Department R eform Act, the Supreme C ourt adopted rules implementing t he act, including a rule for assigning an administ rative judge designated by the Supreme C ourt. The legislature then codified that rule. The legislature subsequently formed a citizens ' committee to m ake recommendations regarding efficiency and administration of justice. Included in the recommendations of that
committee was the establishment of a unified court
, vesting in the Supreme C ourt supervisory and administrative authority. The legislature adopt ed the recommendations of18

the committee and offered to the voters of this s tate a constitution al amendment that provided the Supreme C ourt with the authority the citizens ' committee called for.

Afte r the voters approved this amendment, the legislature fo rmed an advisory committee to assist it with implementing reforms consistent with the new constitutional language. The committee recommended, among other things, that supervisory authority
over all matters lie with the Supreme C ourt, including the assignme nt of judges at all levels and the appointment of chief judg es. Consistent w ith these recommendations, the Supreme C ourt promulgated Rule 107, and, consistent with both the report of its own advisory committee and w ith the Supreme C ourt ' s exercise of its n ew constitutional directive, the legislature codified that rule in K.S.A. 20

- 329. This history demonstrates that the judicial branch and the legislature acted cooperatively to carry out the will of the voters of this State in establishing an efficient, cap able, and unified independent judicial
branch.

The doctrine of independent governmental branches is firmly entrenched in United States and Kansas constitutional law. As early as Hayburn ' s Case , 2 U.S. (2 Dall.) 409, 410, 1 L. Ed. 436 (1792), the United St ates Supreme Court declared that " by the
C onstitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose,
encroachments on either. " A century later, in Kilbourn v. Thompson , 103 U.S. 168, 190

- 91, 13 Otto 168, 26 L. Ed. 377 (1880), the C ourt stated:

" It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public s ervants, and that the perfection of the system requires19

that the lines which separate a nd divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. "

As it pertains t o the doctrine of separation of powers, the Kansas Constitution is
almost identical to the federal Constitution. Gleason v. Samaritan Home , 260 Kan. 970, 982, 926 P.2d 1349 (1996). The doctrine is an inherent and integral element of the republican form of government and is expressly guaranteed to the states by the federal
Constitution. 260 Kan. at 982.

The Kansas Supreme Court has the authority and duty to preserve the constitutional division of powers against disruptive intrusion by one branch of

governme nt into the sphere of a coordinate branch of government.

" The supreme court, in the exercise of its jurisdiction given to it by the constitution and the statutes, may protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and may, in cases pending before it, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in such cases. " C.K.&W. Rld. Co. v. Comm ' rs of Chase
Co. , 42 Kan. 223, Syl. ¶ 1 , 21 P. 1071 (1889).

" It can hardly be supposed that the action of the supreme court may be thwarted, impeded, or embarrassed by the unwa rranted intermeddling of others without any power in the supreme court to prevent it. " 42 Kan. at 225.

Solomon co ntends that, by enacting sec. 11 of H.B. 2338, the legislature improperly exerted control over an administrative function of the Supreme C ourt that is20

constitutionally reserved to the judicial branch. One department of government usurps the powers of anoth er department when it exercises coercive influence on the other. State
, ex rel., v. Bennett , 219 Kan. 285, 290, 547 P.2d 786 (1976) . In order for the interference by one department with the operations of another department to be unconstitutional, the intrusion must be significant. 219 Kan. at 290.

In granting Solomon ' s summary judgment motion
, t he district court gave great weight to a simple test for determining wh ether a legislative act violates the separation of powers doctrine. This test was derived from State v. Mitchell , 234 Kan. 185, 195, 672 P.2d 1 (1983), where language can be found asserting that, when court rules and a statute are in conflict, the constitu tional mandate of the Supreme C ourt must prevail. Although the district court applied this language, and although the parties argue vigorously about
whether Mitchell provides a bright

- line test, we see no need to rely upon Mitchell in resolving the matter before us. Other bases are readily available for analyzing separation of powers disputes, and these guidelines provide a more thorough and nuanced
demonstration that constitutional lines of authority have been crossed.

In reviewing whether one branch of g overnment has significantly interfered with the operations of another to the point of vio lating the doctrine of separation of powers,
courts commonly consider four factors: (1) the essential nature of the power being exercised; (2) the degree of control by one branch over another; (3) the objective sought to be attained; and (4) the practical result of blending powers as shown by actual experience over a period of time. Miller v. Johnson , 295 Kan. 636, 671, 289 P.3d 1098 (2012); Sebelius
, 285 Kan. at 884; B ennett , 219 Kan. at 290

- 91

.

Applying the se factors to the present case, the first factor relates to the essential power being exercised. Article 3, § 1 of the Kansas Constitution grants the Supreme
C ourt " general administrative authority over all courts in this state. " Here, the essential21

power is the administration of district courts and administrative positions within those courts, which a re guided by chief judges. The Supreme C ourt ' s general administrative authority has been defined as the power " to pr omulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice. " Mitchell , 234 Kan. at 194

. At issue before us is the question of to whom a chief judge must respond and in which d i rection lines of authority flow

— to other judges
in the dist rict or to the Supreme C ourt? The State maintai ns that the focus should be on
the distinction between administrative authority and legislative power to govern administrat ion. Solomon argues that t he nature of the power here being exercised is fundamentally one of court administration. We agree with Solomon.

The district court, after noting the fundamental disagreement about the nature of the power at issue, analyzed the powers and duties of a chie f district court judge and
found that " there is little doubt that the fundamental nature of the position is administrative. Put another way, the position of chief district court judge is one of the principal instruments through which the Kansas Supreme Cou rt ' s constitutionally granted

' general administrative authority ' over the courts in Kansas is wielded. "

After addressing the State ' s argument analogizing the constitutional power of the Governor, codified at Article 1, § 3 of the Kansas Constitution, and that of the Kansas Supreme Court, an argument the State similarly puts forth before this court, the district
court concluded : " Thus, while the [governor ' s] administrative authority contained in the

' supreme executive power ' may be implicit, the Kansas Supreme Court has been given constitutionally explicit ' general administrative authority .' This distinction renders the
D efendant ' s comparison to the relationship between the Executive and Legislative branches of government unavailing. " We see no purpose in repeat ing the sound reasoning
of the district court on this factor and conclude that the selection of a chief district court judg e is an essential pow er more closely related to the Supreme C ourt ' s general22

administrative authority than to the legislature ' s power to appoint. We further note that the legislature in H. B. 2338 empowered these locally selected chief judges with new
discre tionary responsibilities regarding district court budget expenditures, compensation to be paid to district court personnel, as well as the power to hire, promote, suspend, demote, and dismiss all personnel as necessary to carry out the functions and duties of each judicial district. See K.S.A. 2014 Supp. 20

- 384. Such provisions would only further fragment what is constitutionally designed to be a unified state court system and harken back to the days of pre

- 1972 court administration.

The second factor rela tes to the degree of control exerted by the legislature over the judiciary. Having found that the position of chief judge is an essential component of
the S up reme C ourt ' s constitutionally derived general administrative authority, we conclude that the legis lative interference represents a direct and explicit removal of appointing authority from the S upreme C ourt and dilutes the Supreme C ourt ' s authority
over the administration of district courts. This authority is a function this court has
exercised since un ification nearly 50 years ago, and both the removal of this authority is
in derogation of the both the explicit language of our State ' s constitution and in opposition to the will of the electorate as expressed in the recommendations of the
citizens ' commit tees that led to both the constitutional amendment and the enabling legislation. The goal of the 1972 amendment to the constitution was both explicitly and implicitly to unify the court system. The intervention by the legislature in 2014 wo uld
result in re moval from the Supreme C ourt of an essential component of its constitutionally mandated administrative authority. B y taking the power to appoint chief judges aw ay from the Supreme C ourt, the l egislature has exerted its power over a fundamental component of the j udiciary.

The third factor looks to the objective sought by the statute. Both parties and the district court agreed that this factor is " ' perhaps the least important ' " inquiry into whether23

or not a violation of the separation of powers has occurre d because " ' a bill that significantly interferes with the Kansas Supreme Court ' s administrative authority surely cannot be salvaged by a worthy motive, or vice versa. ' " The State suggests the legislature was likely influenced by written testimony of four 1 8th Judicial District judges who stated chief judges should be selected by peers, who know them best and work with them most closely . One also asserted that the measure would return control of local judicial
districts to those districts. This second object ive is directly contrary to the aim of the 1972 constitutional amendment, which sought to reduce " fragmentation of judicial

power " and the concomitant " unnecessary variations in the practices and procedures of
individual local courts. " Such an objective is also radically at odds with the " clear lines of responsibility and authority " advocated by the legislature ' s own Judicial Study Advisory
Committee.

The fourth factor, the practical result of the blending of constitutional powers as evidenced by experien ce, is difficult to evaluate . To the extent that our research has been able to ascertain, Kansas has never provided for the local election of chief judges by their

peers

. The State suggests that nearby states have had statutory schemes in place for years

t hat are similar to the one at issue here. We have no information, however, regarding
whether the duties associated with those similar ly titled positions in other states are equivalent to responsibilities entrusted to chief judges in Kansas. Further, the re is no
indication in the case law of those states of litigation challenging administrative efficiency
of those statutes. But caselaw from other jurisdictions reveals several decisions in which similar encroachments violated the separation of powers doctrine. (See cases cited below.) In any event, the statute at issue before us now does not involve a " blending " of legislative and judicial powers; it represents a direct replacement of judicial authority by legislative authority.24

Application of these four facto rs strongly suggests that sec. 11 represents an impermissible intrusion on the part of the legislative branch into the constitutionally
mandated a dministrative authority of the Supreme C ourt. This conclusion is supported by
decisions in several of our sist er states. While none is exactly on point, each informs us that the app ointing power of the S upreme C ourt is essential to its effective administration of the judicial system.

In Judicial Attorneys Ass ' n v. Michigan , 459 Mich. 291, 586 N .W.2d 894 (1998), the Michigan Supreme C ourt considered a statute that designated counties to be the employers of court employees and divided personnel responsibilities between the counties and the chief judges. The court held that the powers of the judicial branch

necessar ily include the administrative function of controlling those who work within the judicial branch, and the statutory scheme impermissibly encroached on the judicial
branch. 459 Mich. at 297

- 98 , 301

.

In Petition of Governor & Executive Council , 151 N.H. 1, 846 A.2d 1148 (2004), the New Hampshire Supreme C ourt considered a statute declaring the office of chief justice to be an administrative position and providing for justices to serve rotating 5

- year terms as chief justice in order of seniority. The court fo und the statute to be an unconstitutional encroachment on the administrative authority of the supreme court. The
court warned that giving the legislature license to alter the means of appointment and the term of the chief justice would subject the judiciar y to the " politics of the moment. " 151
N.H. at 10.

In In re P.L. 2001, Chapter 362 , 186 N.J. 368, 895 A.2d 1128 (2006), the New Jersey Supreme C ourt considered the constitutionality of a statute establishing a unit of armed probation officers within the administrative office of the courts. The court25

concluded that " [b]ecause the Act fatally compromises the independence of the judiciary, and hopelessly blurs the line between the role of our courts and law enforcement, we
have no choice but to declare the A ct unconstitutional. " 186 N.J. at 373. Considering state constitutional language similar to that in the Kansas C onstitution, the court
determined that its constitution gave " the Chief Justice and the Supreme Court sweeping authority to govern their own hou se. " 186 N.J. at 379. The court stated that " it is the
Court ' s power over administration that permits it to define the terms and conditions of employment of judiciary personnel and the functions they serve within the court system. "
186 N.J. at 381. The sta te supreme court ' s authority over administration " is ' unfettered '
and ' plenary, ' in contrast to its authority over practice and procedure, which is ' subject to
law. ' " 186 N.J. at 382.

In County of Erie et al. Appeal , 93 Pa. C ommw . 258, 501 A.2d 697 (1985), the Pennsylvania Commonwealth C ourt considered a county

- enacted nepotism rule that the county personnel director sought to enforce against court employees. A district court judge appointed a probation officer, and the county att empted to enjoin the appointment because of a conflict with the nepotism rule. The appellate court held that the rule

" affects the power of the judiciary to hire, fire and supervise court

- appointed personnel "
and it therefore was " constitutionally inapplic able to such personnel as are court

appointed. " 93 Pa. C ommw . at 261. Where " the hiring, firing and supervision of court

appointed personnel is concerned, " " any law which encroaches upon or affects this power must be struck down unless there exists indepen dent constitutional authorization. " 93 Pa.
C ommw . at 262

- 63.

In State v. McLeod , 274 S.C. 81, 261 S.E.2d 303 (1979), the attorney general in
South Carolina brought a declaratory judgment action seeking judicial determination of the constitutionality of a statute that provided for the chief justice of the state supreme26

court to appoint circuit court judges to preside over public utility rate cases before the utility commission. The court held that the statute impermissibly encroached on the authority of the executive branch; it also infringed on the authority of the judicial branch
to allocate judicial duties. 274 S.C. at 85

.

In State v . Riley , 274 S.C. 106, 262 S.E.2d 404 (1980), the South Carolina Supreme C ourt addressed the const itutionality of a legisla tively created court of appeals. The supreme c ourt generally upheld the legislature ' s authority to create such an appellate court, but it held that certain provisions of the statute violated the doctrine of separation of powers. A provision granting power to the chief judge of the court of appeals to assign circuit judges to sit with the court unconstitutionally infringed on the constitutional power of the chief justice of the supreme court to assign judges to sit in any court within the unified judicial sy stem. 274 S.C. at 112. The statute vesting the court of appeals with the power to set additional terms for that court unconstitutionally infringed on the authority of the chief justice of the supreme court, as the administrative head of the unified judicia l system, to set terms of any court within the unified system. 274 S.C. at 112

- 13. Finally, a provision that records of the court of appeals should be kept in a manner prescribed by the judges violated the constitutional article providing that the supreme court should make rules governing the administration of all the courts of the state. 274 S.C. at 114.

In State ex rel. Crabtree v. Hash , 180 W. Va. 425, 376 S .E.2d 631 (1988), the West Virginia Supreme C ourt considered the appointment powers of the state ' s chief justice. A state statute authorized the local bar to elect a judge if a district court judge was disqualified or otherwise unable to conduct court. The supreme court promulgated a rule giving the chief justice the power to assign temporary circuit judges. The state constitution, like that of Kansas, explicitly made the chief justice the " administrative head
of all courts. " The constitution also allowed the chief justice to assign judges from one27

court to another and explicitly stated that supreme co urt rules supersede any statutes that

co nflict with those rules. 180 W. Va. at 4 26

- 27. Relying on those provisions, the supreme

court found sufficient conflict between rules and statutes to hold the statute to be an
unconstitutional encroachment on the authori ty of the supreme court. 180 W. Va. at 428.

The language of our constitution and application of caselaw factors for analyzing
is sues in cases involving separation of powers leads us to an ultimate opinion that is
consistent with the opinions of courts in other jurisdictions: the means of assignin g positions responsible to the S upreme C ourt and charged with effectuating S upreme C our t policy must be in the hands of the Supreme C ourt, not the legislature. By enacting sec. 11 of H.B. 2338, the legislature asserted significant control over a constitutionally

esta blished essential power of the Supreme C ourt. Unlike previous legislation wh ich was
enacted in harmo ny with Supreme Court rules, sec. 11 directly con flicts with the mission of the Supreme C ourt in establishing an efficient and unified administrative structure for the courts. Courts in other jurisdictions have reached analogous con clusions about legislative interference with the administration of courts.

Before closing, we mention two final, specific points. First, t he State would have

us hold that Article 15, § 1 of the Kansas C onstitution governs . It provides that the legislature may prescribe the appointment of officers whose election or appointment is not otherwise provided for by law . This argument is untenable because the position of chief judge is not a public officer. At common law, the markers for service as a public
office r were a publicly provided salary, the exercise of some element of so vereign power, the taking of an oath of office, and service for a predetermined term. See Markham v.
Cornell , 136 Kan. 884, 897

- 98, 18 P.2d 158 (1933); In re Carroll , 91 Kan. 395, 398, 13 7
P . 975 (1914); Moore v. Nation , 80 Kan. 672, 673, 103 P. 107 (1909); see also K.S.A. 75

- 4308 (requiring oath of office) ; Farley v. Board of Education of City of Perry , 62 Okla. 181, 183, 162 P. 797 (1917); Gracey v. St. Louis , 213 Mo. 384, 393, 111 S.W. 115928

(1908); Baltimore City v. Lyman , 92 Md. 591, 594, 48 A. 145 (1901); State of Iowa v. Spaulding , 102 Iowa 639, 647

- 48, 72 N.W. 288 (1897); People v. Myers , 33 N.Y. St. Rep. 18, 11 N.Y.S. 217 , 218 (1890). Chief judges, as independent official s , are not subject to a particular oath requirement, in that they take no oath of office beyond their oaths as judges. See K.S.A. 25

- 2807; see also Moore , 80 Kan. 672 , Syl. ¶¶ 1, 3 (additional duties assigned to judge do not create separate office for that judge). Further,

sec. 11 would set no term for chief judges. Because a chief judge does not occupy an
office distinct from the office of d istrict court judge, Article 15, § 1 does not apply to the appointment of chief judges.

Second, w e note tha t the dis trict court relied on sec. 43 of H.B. 2338, a

non severability clause, to strike the legislation in its entirety. Neither party has challenged the validity of that portion of the district court ruling, and we accordingly do
not address it here. We note only that our holding appears to have practical adverse consequences to the judiciary budget, which the legislature may wish to address, even though those concerns played no part in our analysis.

C ONCLUSION

We agree with the district court that sec. 11 of H .B. 2338 is unconstitutional, and
we hold that Rule 107 remains in full effect. The decision of the district court is affirmed.

N USS , C.J. , not participating.
M ICHAEL J. M ALONE , Senior Judge
, assigned. 1

1 REPORTER'S NOTE: Senior Judge Malone w as appointed to hear case No. 114,573 vice Chief Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20

- 2616.29 * * *

S TEGALL , J., concurring: I concur wit h and join the portion of today' s decision concerning Judge Solomon’s standing to bring this declaratory judgment action. But I cannot join the portion of this opinion dedicated to deciding the merits of Judge Solomon’s claims. While I concur in the result of to day’s decision

— I too find that K.S.A. 2014 Supp. 20

- 329 violates the structural separation of powers dictated by our
constitution

— I write separately because, unfortunately, the decision of the majority does little to restore the proper sequestering of the three great governmental powers within their respective departments.

To the contrary, a majority of the court has today recapitulated a jurisprudence more properly described as promoting a " harmony of powers " than a separation
thereof. It is true, we h ave rejected a specific mi xing of powers. But we have left undisturbed and uncriticized legislative acts (such as creating a judicial position with additional duties and additional pay) that are, while perhaps more felicitous to judicial interests, equally offensive to the separat ion of powers. In so doing we demonstrate that we will look askance at such mixing only when it comes at the expense of cherished departmental powers.

I NTRODUCTION

" Something there is that doesn't love a wall / That wants it down, " observed Robert Frost, blaming nature's assault

— winter's " frozen ground swell. " Robert Frost, Mending Wall, in North of Boston 11

- 13 (1917). As with n ature, so too with governments. There is something about power that doesn't love a wall; that wants it
down. It is in the centripetal nature of governmental power

— if dispersed like so many30

iron fil ings across a surface

— to be restless until it is united in one place, as though drawn by an unseen magnet beneath. See, e.g ., James Madison, The F ederalist No. 51, p. 321 (C. Rossiter ed. 1961) (warning against the " gradual concentration of the several powers in the same department " of government).

Knowing this

— and having a healthy fear of consolidated power

— the drafters of
both our national and ou r state constitutions structured our government to be crisscrossed by numerous " walls of separation. " The most important of these walls of separation are those that both hem in and protect the exercise of the three distinct forms of governmental power in o ur constitutional system

— the executive, the legislative, and the judicial powers.

This " separation of powers " that divides our three co

- equal departments of government

— while nowhere explicitly set forth in the United States or Kansas
constitutions

—

has b een variously described as " inherent, " " integral, " and " firmly
entrenched in United States and Kansas constitutional law. " See Solomon v. State, slip o p. at 18

- 19; s ee also James Madison, The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) ( " No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than [the separation of powers]. . . .T he accumulation of all powers, legislative, executive, and judiciary, in the same han ds,

. . . may justly be pronounced the very definition of tyranny. "). But as Fro st understood,
walls fall down. And within our constitutional system, it is the duty of the courts to not only stand guard over the integrity of our governmental walls of separ ation, but also, as time and neglect may require, to rebuild them.31

A S HORT R EVIEW OF O UR 20 TH C ENTURY S EPARATION OF P OWERS J URISPRUDENCE

In the decades following statehood, this court routinely adhered to a principle of strict separation of powers as illustrated by our turn

- of

- the

- century decision in State v.
Johnson , 61 Kan. 803 , 60 P . 1068 (1900). In Johnson , we struck down a legislative conferral upon the judiciary of the legislative power to set railroad rates, holding that " the
functions of th e three departments should be kept as distinct and separate as possible, except so far as the action of one is made to constitute a restraint upon the action of the
other. " 61 Kan. at 814

. The remainder of the century would not prove so solicitous to our
constitutional structure.

By the 1950s, this court was regularly refusing to strike down governmental combinations of power in one place, often in the name of what was " practicable. " Se e,
e.g ., State ex rel. Hawks v. City of Topeka , 176 Kan. 240, 245, 270 P.2d 270 (1954) ( upholding an act granting power to cities to acquire real estate for off

- street parking by eminent domain on the grounds that " ' the absolute independence of the departm ents and the complete separation of the powers is impracticable, and was not intended ' " ) (quoting
In re Sims , 54 Kan. 1, 11, 37 P. 135 (1894) [ Johns t on, J., concurring ] ) ; State ex rel. Anderson v. Fadely , 1 80 Kan. 652 , 695

- 96, 308 P.2d 537 (1957) (upholdin g an act creating the State Finance Council
, holding " it cannot be overlooked as a practical matter that as between the legislative and the executive departments of our government the enactment contemplates comity and cooperation and not a blending of powers " ).

By 1976, our new practical approach to determining when a government
comb ination of power had become too great dictated that we create a legal test, and in
State ex rel Schneider v. Bennett , 219 Kan. 285, 547 P.2d 786 (1976) , we settled on a
four

- factor test

— the same test the majority applies today

— intended to establish whether32

any specific combination created a " significant interference " with the independent function of any department of government. Along the way, we stated:

" Although the theoretical separation of powers of government was strictly enforced in our early history without qualification, the more recent cases have modified the doctrine and applied a more practical approach . . . ."

" In our judgment a strict application of the separation of powers doctrine is inappropriate today in a complex state government where administrative agencies exercise many types of power including legislative, executive, and judicial powers often blended together in the same administrative agency. The courts today have come to recognize that the political philosophers who developed the t heory of separation of powers did not have any concept of the complexities of government as it exists today. Under our system of government the absolute independence of the departments and the complete separation of powers is impracticable. We must maintai n in our political system sufficient flexibility to experiment and to seek new methods of improving governmental efficiency. " Bennett , 219 Kan. at 288

- 89.

A few years later, we reiterated:

" [A] n entire and complete separation is [ n ] either desirable [ n ] or was ever intended by the
framers of the C onstitution. The fact that the powers of one department may overlap with another department ' s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. State v. Johnson , 61 Kan. 803, 60 P. 1068 (1900).
The more recent cases have modified the doctrine
, taking a more pragmatic, flexible and practical approach giving recognition to the f act there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible

. [Citations omitted.] " State v. Greenlee , 228 Kan. 712, 715

- 16, 620 P.2d 1132 (1980)

.33

Contrary to our history of casually dismissing the " theory " behind our constitutional structure, we should have paused somewhere along this path and soberly
reflect ed that " [t]o the Framers, the separation of powers and checks and balances were more than just theories. Th ey were practical and real protections for individual liberty in
the new Constitution. " Perez v. Mortgage Bankers Assn.
, 575 U.S. ___, ___, 135 S. Ct. 1199, 1216, 191 L. Ed. 2d 186 (2015) (Thomas, J., concurring). But

— i n the absence of
such reflection

— the death blow to Johnson and our early separation of powers jurisprudence finally arrived in State v. Mitchell , 234 Kan. 185, 193 , 672 P.2d 1 (1983)

.

In Mitchell , this court was required to determine " whether the Supreme Court has exclusive constitutional po wer to make rules pertaining to court administration. " 234
Kan. at 193. In deciding whether a legislative enactment dictating a rule of court procedure violated the separation of powers, the Mitchell court held that " [a]lthough the Supreme Court has the co nstitutional power to determine court procedure, it may cooperate with the legislature in the exercise of that power. The Supreme Court ' s acquiescence [to the statute in question] is an example of cooperation. " Mitchell , 234
Kan. 185, Syl. ¶ 7. The Mitchell court followed the logic of this holding through to its
inevitable conclusion
, reasoning that because " the judiciary can acquiesce in legislative
action " which dictates aspects of " the judicial function
, " a " problem " only emerges " when
court rules and a statute conflict "; and in " such circumstances, " the court ' s rule " must prevail " and the statute must give way. Mitchell , 234 Kan. at 195.

Mitchell is the culmination of decades of our " straying further and further from the
Constitution without so much as pausing to ask why. " Michigan v. E.P.A.
, 576 U.S. ___, ___, 135 S. Ct. 2699, 2714, 192 L. Ed. 2d 674 (2015) (Thomas, J.
, concurring). It s rule that the constitutional separat ion of powers can essentially be waived by the departments of government w henever they find such separation an inconvenient impediment to som e sought

- after governmental end misapprehends and may fatally undermine the34

fundamental purpose of such walls of separation in the first instance

— to prevent the

" gradual concentration of the several powers in the same department " which " may justly be pronounced the very definition of tyranny. " Madison
, at 301.

The separ ation of powers contains no opt

- out clause. The departments are not free to ignore the strictures of separate powers upon a mutual declaration of cooperation in furtherance of some jointly agreed upon governmental objective. And if there is such an opt out, upon what grounds other than the arbitrary whim of one department refusing to cooperate could a violation of the separa tion of powers ever be found? In a government founded upon and itself governed by the rule of law, the governmental departments

" cannot by agreement alter the constitutional structure. " NLRB v. Noel Canning
, 573 U.S. ___, ___, 134 S. Ct. 2550, 2594, 189 L. Ed. 2d 538 (2014) (Scalia
, J., concurring)

K.S.A. 2014 S UPP

. 20

- 329 D OES N OT V IOLATE THE F OUR

- F ACTOR B ENNETT T EST

However, as discussed above, o ur precedent has established that in Kansas the departments may in fact alter our constitutional structure so long as suc h alteration is not

" significant

. " In Bennett

— relying on our dismissal of the antiquated theory of separation of powers as it was actually embedded into our constitutional structure by the drafters of our governmenta l charters

— we established a four

- part test to determine when the

" flexibility to experiment " in the name of " governmental efficiency " has gone too far and
created a " significant interference " with the separation of powers :

" First is the essential nature of the power being exercised. Is the power exclusively executive or legislative or is it a blend of the two? A second factor is the degree of control by the legislative department in the exercise of the power. Is there a coercive influence or a mere cooper ative venture? A third consideration of importance is the nature of the objective sought to be attained by the legislature. Is the intent of the legislature to cooperate with the executive by furnishing some special expertise of one or35

more of its members or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature? A fourth consideration could be the practical result of the blending of powers as shown by
actual experience over a period of time wh ere such evidence is available

. Bennett , 219
Kan. at 90

- 91.

We thereby " replaced the clear constitutional prescription " demanding the sequestering of powers into three separate co

- equal and coordinate branches " with a

' balancing test. ' " See Morrison v. Olson , 487 U.S. 654, 711, 108 S. Ct. 2597, 101 L. Ed.
2d 569 (1988) (Scalia, J.
, dissenting) . Thus, following Bennett and its progeny, in the name of balance, cooperation, and harmony, we have permitted breaches of the walls of separation between the departments so long as no single breach is determined to be

" significant. " The majority today applies the four

- factor Benne tt test to find that K.S.A. 2014 Supp. 20

- 329 amounts to a " significant " interference with the judicial department
and is therefore unconstitutional.

This holding, however, cannot be reconciled with the facts before us

— especially in light of our prior d ecisions discussed above refusing to strike down far more significant interferences. For example, in State v. Reed , 248 Kan. 792, 793, 800, 811 P.2d 1163 (1991) , we upheld a statute providing " that a district court shall modify a
defendant ' s sentence when recommended by the [executive branch] u nless specific findings are made by the trial court

. " To reach this result, we applied the first Bennett factor and found no violation because the judiciary retained the final discretion regarding sentence. As such, w e found the essential " nature " of the power being exercised was cooperative and " advisory. " 248 Kan. at 800. Similarly, when considering the second factor, the Reed court did not find an unlawful level of c ontrol over judicial discretion but rather found that the statute merely " channels the discretionary authority of the court

. "
248 Kan. at 801.36

By the same token

— when viewed in a light most favorable to upholding the constitutionality of the law as the majority states it is doing

— K.S.A. 2014 Supp. 20

- 329 could reasonably be characterized as a cooperative effort to advise and channel the administrative power of the Supreme Court. After all, as the State has repeatedly pointed out, the appointment power is still being exercised entirely within the judicial branch and the actual performance of judicial administrative duties remains entirely subject to the ultimate authority of th e Supreme Court. Moreover, the l egislature has exercised the same fundamental control over the positio n of chief judge si nce it began requiring this court to fill that position in each judici al district. L. 1976, ch. 146, sec. 28. S imply put , today ' s holding cannot be reconciled with Chief Judge Solomon ' s concession, and this court ' s implicit admission, th at under the precedents of harmony
, the l egislature does in fact have the power to create the position of chief judge in the first instance and to assign duties of judicial administration to that position. In view of this , we today demonstrate that the

sta ndard by which we determine " significance " is simply " the unfettered wisdom of a majority of this Court. " Morrison , 487 U.S. at 71 2 (Scalia, J.
, dissenting).

This difficult judgment is unavoidable, especially in light of the manner in which the majority o pinion glosses quickly over the district court ' s application of Mitchell and the parties ' focus on the meaning and application of the Mitchell rule. Mitchell ' s transparent elevation of judicial policy to the level of constitutional law is perhaps more easy to forget than to confront because Mitchell rather bluntly (if impolitely) asserts what actually happens in the world Bennett established

— a world in which judges " recognize "
the naiveté of those who " developed the theory of separation of powers " but who had no

" concept of the complexities of government as it exists today. " Bennett , 219 Kan. at 288

.

By rejecting the original strictures of the constitution, the Bennett court gave to itself

— and to successive generations of judges and governmental of ficials

— " sufficient flexibility to experiment and to seek new methods of improving governmental37

efficiency. " Bennett , 219 Kan. at 289. The consequences of this kind of constitutional amendment by experiment ation are perfectly illustrated by Mitchell ' s rule that a legislative enactment dictating a matter of judicial administration is either constitutional or unconstitutional depending on no thing more substantial than whether the Supreme Court agrees with the policy choices represented by the statute.

A Q UESTION OF D EFERENCE

The descent of this court ' s separation of powers jurisprudence from Johnson to
Bennett and Mitchell was aided in no small part by our application of judicial deference. We have routinely stated the rule that " [i] f there is any reasonable way to construe a statute as constitutionally valid, the court must do so. " Boatright v. Kansas Racing
Comm ' n , 251 Kan. 240, 243, 834 P.2d 368 (1992). We have regularly repeated this rule in separation of powers cases, and we do so again tod ay (though I find little evidence that the majority has made an effort to construe K.S.A. 2014 Supp. 20

- 329 as constitutionally valid in light of the four Bennett factors). See Solomon v. State , slip o p. at 16.

This deferential rule and practice played a key role at the fulcrum of this particular history in this court ' s decision in State ex rel. Anderson v. Fadely
, 180 Kan. 652

. There
, in a 4

- 2 de cision, we ruled that the legislative act creating the State Finance Council did not violate the separation of powers. The Fadely majority relied heavily on our earlier decision upholding the Kansas Turnpike Authority in State ex rel. Fatzer v. Kansas Turnpike Authority , 176 Kan. 683, 273 P.2d 198 (1954)

— a ca se that had been brought by then Attorney General Harold Fatzer. By the time Fadely was heard and decided, Fatzer had joined this court, and he wrote a lengthy dissent, joined by Justice Wertz, pleading
for a return to the strict principles of separation o f powers set forth in Johnson and other earlier cases. See generally Fadely , 180 Kan. at 668

- 89.38

Fatzer was particularly aggrieved by the Fadely concurring opinion written by Justice Schroeder and joined by Justices Parker and Price. That concurring opi nion was
written s pecific ally to push this court in the direction of what I have here called a doctrine
of " harmony of powers. " Objecting to Fatzer ' s citation of The Federalist Papers and other authority in the realm of political theory, Justice Schroeder wrote that the court " should not be overcome by the repetition of theory piled higher and higher in matters concerning the separation of powers before the facts and practical aspects of the problem have been thoroughly e xploited by judicial thought. " Fadel y , 180 Kan. at 693.

Justice Schroeder went on to note that " it cannot be overlooked as a practical matter that as between the legislative and the executive departments of our government the enactment contemplates comity and cooperation and not a blending of powers. " Fadely , 180 Kan. at 695

- 96. Finally, he concluded that

— contrary to Justice Fatzer ' s concern that the Supreme Court was allowing " the power of one depart ment to pour through like an on surging flood to engulf and submerge the power of another
de partment " 180 Kan. at 668

— the l egislature was enacting " a cooperative pro position " and not engaged in a " usurpation of power. " 180 Kan. at 696. Recognizing that a cooperative act in violation of the constitution is no less violative for being accomplished in the name of the general good and without opposition, Justice Fatzer responded that

" we are dealing with an important and far

- reaching constitutional question concerning a power of government which does not permit honesty, integri ty, good intentions, a progressive enthusiasm, or even successful operation to take the place of essential
constitutional action. " Fadely , 180 Kan. at 688.

The Fadely concurrence relied heavily on the rule of deference to justify its
dismissal of Justice Fatzer ' s constitutional concerns in favor of the " practi cal aspects of the problem. " 180 Kan. at 693. Fo r example, Justice Schroeder quoted from the Fatzer

court ' s similarly deferential posture towards " questions of public policy [which] are for39

legislativ e and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice or expediency of the legislation is for that body and not for the courts. " Fatzer , 176 Kan. at 695. On a six member court split 3

- 2 (Justice Hall did not participate) on the substantive question before it, Justice Robb stood to cast the deciding vote. Ultimately, he concurred in the result reached by Justices Schroeder, Parker, and Price. He did not join their separate opinion, however, because in substance, he agreed with Justice Fatzer ' s dissent, going so far as to write in his own separate opinion that " we cannot waive our constitutional provisions on the theory that even the constitution must bend t o the public good. " Fadely
, 180 Kan. at 701. Never theless, he explained and justified his final vote in Fadely entirely on the grounds of deference: " I would be inclined to join in the dissent were it not for that long line of decisions of our court followi ng the almost universal rule that an act of the legislature is presumed to be constitutional unless it contravenes an express in hibition
of the constitution. " Fadely , 180 Kan. at 698.

I agree with the recitation in Fatzer that it is within the province of the legis lative department to " declare "

— where " there is no constitutional impediment "

— the " public policy " of thi s state. Fatzer , 176 Kan. at 695. Moreover, the doctrine of judicial deference to the legislative power to de clare policy in the form of law

- making is itself a vital aspect of the doctrine of separation of powers, prohibiting as it does the judicial department
from " question[ing] the wisdom, justice or expediency of the legislation. " Fatzer , 176
Kan. at 689. So while judicial deference to the e xercise of legislative or e xecutive powers is entirely meet and proper, the same deference shown to the legislative or executive departments when they act outside of their respective vested powers is, in actual fact, an abdication of the vested judicial po wer to say what the law is.

" We may not

— without imperiling the delicate balance of our constitutional system

— forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to40

adhere to that meaning as the law. " Department of Transportation v

. Association of
American Railroads
, 575 U.S. ___, ___, 135 S. Ct. 1225, 1246, 191 L. Ed. 2d 153 (2015) (Thomas, J., concurring). " [W]hen questions involving the Constitution ' s government

structuring provisions are presented in a justiciable case, it is the solemn responsibility of
the Judicial Branch ' to say what the law is. ' " NLRB , 134 S. Ct. at 2593 (Scalia
, J., concurring) (quoting Marbury v. Madison, 5 U.S. ( 1 Cranch ) 137, 177, 2 L. Ed. 60 [1803] ). Moreover, the judiciary " does not defer to the other branches ' resolution of such
controversies.

. . . Rather, policing the ' enduring structure ' of constitutional government when the political branches fail to do so is ' one of th e most vital functions of this Court. ' "
N.L.R.B. , 134 S. Ct. at 2593 (Scalia
, J., concurring) (quoting Public Citizen v. Department of Justice, 491 U.S. 440, 468, 109 S. Ct. 2558, 105 L. Ed. 2d 377 [1989] [ K ennedy , J., concurring in judgment ] ).

A short look, for example, at the all

- too

- common habit of legislative delegation of its exclusive power to make law to the vast apparatus of the administrative state may demonstrate the dangerous combinations of power that can grow up in the protective
sha dow of such judicial deference and judicial encouragement of cooperation between the departments. See, e.g ., Association of American Railroads
, 135 S. Ct. at 1246 (Thomas, J., concurring) ( " Implicitly recognizing that the power to fashion legally binding r ules is legislative, we have nevertheless clas sified rulemaking as executive ( or judicial power ) when th e authorizing statute sets out ' an intelligible principle ' to guide t he
rulemaker ' s discretion.

. . . [I]t is evident that [the ineligible principle tes t] does not adequately reinforce the Constitution ' s allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process

. " ).41 S TRICTLY E NFORCING THE C ONSTITUTIONALLY M ANDATED

S EPARATION OF P OWERS IN THIS C ASE

Today we propagate our long

- standing yet erroneous separation of powers jurisprudence. Worse, we have compound ed our prior error by applying the precedent promoting " harmony " and " sharing " in such an arbitrary manner that we leave no doubt
that the Bennett test for finding a " significant interference " is mere fig

- leafing to cover our unsightly exercise of judicial willfulness.

I respectfully dissent from this approach because a consistent application of the
four Bennett factors, colored by deferential review and in light of our prior precedent, would require that we uphold K.S.A. 2014 Supp. 20

- 329 as a constitutionally permissible
less

- than

- significant exercise of " shared " powers of judicial administration. But rather
than follow flawed precedent to a result that further erodes the constitutional separation of powers, I would instead adhere to the basic principle recognized by this court in
Johnson that " the functions of the three departments should be kept as distinct and separate as possible. " 61 Kan. at 814

.

Stating the rule as clearly and succinctly as possible, I would hold that when " the
Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it. " Association of American Railroads , 135 S. Ct. at 1241 (Thomas, J., concurring). This
does not mean there can never be close or difficult cases in this arena, however, because

some " functions may be performed by two or more branches without either exceeding its enumerated powers under the Constitution.

. . . The question is whether th e particular function requires the exercise of a certain type of power; if it does, then only the branch in which that power is vested can perform it. " Association of American . Railroads , 135 S.
Ct. at 1241

- 42 (Thomas, J., concurring).42

Furthermore, I woul d return this court to the active judicial role and obligation to guard and protect a clear and strong wall of separation between each of the three great departments of government

— keeping each within its proper province and protecting those provinces from colonization by the other two departments. It is within the judicial province to carefully exercise this power without deference to the other branches, and it is the duty of our department to carry out this obligation without regard to whether the
results are perceived to be either beneficial or detrimental to judicial interests or other
sub

- constitutional interests such as what we (or any ot her government official) decide is

" practicable " or " efficient

. "

Following these principles, I have no difficulty wh atsoever concurring with the result reached by the majority today. Our constitution expressly and unambiguously dedicates the power to administer the judicial branch to the Supreme Court. Kan. Const. art. 3, § 1. This power to administer cannot be shared a nd is exclusively part of the judicial power in this state. Deciding who, within any particular judicial district, shall be the chief administrative officer is plainly within the administrative power granted to the Supreme Court.

Therefore, the exercise of legislative power to control or dictate in any manner the exercise of judicial administration cannot survive constitutional scrutiny. See Wellness
Int ' l Network, Ltd. v. Sharif
, 575 U.S. ___, ___, 135 S. Ct. 1932, 1962, 191 L. Ed. 2d 911 (2015) (Thomas , J., dissenting) ( " [E]ven when acting pursuant to an enumerated power " the legislature " exceeds its authority when it purports to authorize a person or entity to perform a function that requires the exercise of a power vested elsewhere. " ). This
conclusion necessarily encompasses not just K.S.A. 2014 Supp. 20

- 329 setting forth the manner of appointment of chief judges, but also the creation of the position of chief judge
, L. 1999, ch. 57, sec. 17 , the assignment of administrative duties to the chief judge
,43

L. 1976 , ch. 146 , sec. 28; L. 1999, ch. 57, sec. 17, and the conferral of benefits on the chief judge
, K.S.A. 2014 Supp. 75

- 3120g

.

C ONCLUSION

To any who may complain (either today or at a later time when some other ox is being gored) that the strict sequ estering of governmental power here proposed is unworkable in today ' s complex society

— impractical; inefficient; subject to abuse; or antiquated

— we must respectfully answer with the " truism that constitutional protections
have costs. " Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). " A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can t heoretically be abused. . . . While the separation of powers may prevent us from righting eve ry wrong, it does so in order to ensure that we do not lose liberty. " Morrison , 487 U.S. at 710

- 11 (Scalia, J.
, dissenting).

At the end of the day, this is the fact that cannot

— must not

— be forgotten. Constitutional limits enforced under the protective umb rella of the rule of law derive their ultimate authority from th e political power of the people and exist for the protection and propagation of liberty under the law. Each department of government has been vested with unique and exclusive powers to effectuate orderly government

— and each has a
coordinate and co

- equal obligation to exercise its powers with due respect for the powers
vested in the other branches. " The Judiciary

— no less than the other two branches

—has an obligation to guard against deviations from those principles. " Perez , 135 S. Ct. at 1217 (Thomas, J., concurring). Anything less threat ens liberty with the specter of dangerous combinations of power

— the prevention of which remains vital to the future of constitutional government.