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Court Opinions

Posted By Joseph N. Molina III, Tuesday, September 8, 2015

Over the last few weeks the Kansas judiciary has issued opinions that will have significantly impact the legal community. These opinions come from all levels of the judiciary and deal with court funding, separation of powers, legal malpractice, and elected offices.

Solomon v. Kansas, 20115-CV156

The most publicized opinion was issued last Wednesday when Shawnee County District Court Judge Larry Hendricks struck down a 2014 law that changed how judicial districts selected their chief judge. This law required judicial districts to elect their chief judge. Prior to this change, the chief justice of the Kansas Supreme Court appointed these positions. Hendricks held that this change violated the state’s separation of powers doctrine since the Kansas Supreme Court has "administrative authority” over the courts. Muddying the waters is a 2015 law tying this administrative change to judicial funding through a "nonseverability clause.” By finding the administrative change unconstitutional court funding through 2017 would be declared null and void. At this point a lawsuit has been filed in Shawnee County challenging the non-severability clause. In addition, Hendricks issued a stay of his ruling pending an appeal by the state.

See; see also; and

Kansas Attorney General Derek Schmidt will ask the court to consider this issue, see

How this shakes out is yet to be determined but one could guess this will go all the way to the Kansas Supreme Court. How the court handles it from there given the issue directly impacts judicial funding will be interesting to see.

Judicial Ethics Opinion 183

The Kansas Judicial Ethics Advisory Panel issued Op. 183 in late August. While short, this opinion requires that judges recuse themselves from cases where one lawyer is also a county commissioner. The opinion states:

"we are of the opinion that the judge’s impartiality might reasonable be questioned if one of the attorneys is one of only three votes possible to determine the budget for the district court of the county and the judge should disqualify himself or herself and hear no cases involving the attorney who is a county commissioner”

This opinion appears limited in scope to only include lawyers who serve on three panel county commissions. However, less than ten (10) county commissions in Kansas are larger than three-persons. Furthermore, this opinion could be expanded to include other elected offices that have authority to set judicial funding levels.

Mashaney v. Board of Indigents’ Defense Services, No. 1089,353

Finally, on August 28 the Kansas Supreme Court issued its ruling in Mashaney v. Board of Indigents’ Defense Services. The issue here is whether a defendant who pleads to a different criminal penalty after having his original convictions reversed under a KSA 60-1507 motion can pursue legal malpractice claims without first proving actual innocence.

The Kansas Supreme Court held that proving actual innocence is not a barrier to claims of legal malpractice and therefore allowed claims against the individual attorneys to proceed to trial.

It is important to note the Kansas Supreme Court went out of their way, as did Justice Stegall, to point out that this opinion does not and should not be viewed as relieving the criminal defendant from proving his actual guilt was not the actual or proximate cause for his injuries. This is up to the jury to decide in the subsequent malpractice case.

While this case continues at the district court level, attorneys should be aware of the new standard involved in legal malpractice cases that evolved from ineffective assistance of counsel cases.

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