Backed by the state’s Republican controlled legislature, Kansas Governor Sam Brownback has signed a bill that looks for all the world like a blatant attempt to blackmail the Kansas Supreme Court;
Kanas Gov. Sam Brownback has signed legislation that would eliminate funding for the state’s courts if they overturn a contentious law passed last year, a move experts described as an unprecedented display of legislative power.
The 2014 law, pushed by Republicans, stripped the Kansas Supreme Court of the power to appoint chief judges for the lower courts. A Kansas judge has sued to block it. Legal experts said the law signed late Thursday is likely the first instance of lawmakers tying a judicial budget to the outcome of a legal case.
The budget language will almost certainly be challenged in court, but activists warned that the effects of triggering the clause could be far-reaching. It’s unclear whether or how long the courts could operate without a budget in place. Courts would be unable to sign off on search and arrest warrants, issue protective orders or preside over constitutionally-mandated first appearances for people arrested for crimes, they said.
The 2014 law gave local courts the authority to select their own chief judges. The lawsuit pending in Shawnee County District Court, in northeastern Kansas, says the 2014 law violates a provision of the state constitution giving the Kansas Supreme Court “general administrative authority over all courts in the state.”
The bill signed by Gov. Brownback, a Republican, says that if that 2014 law is “stayed or is held to be invalid or unconstitutional,” the other provisions including funding for the courts are “declared to be null and void.”
Republican lawmakers denied any link between the language, known in legislative parlance as a non-severability clause, and the pending lawsuit.
Democrats, meanwhile, said the legislation is part of a vendetta against the courts for a series of rulings on education funding.
The Kansas Supreme Court has ruled twice that public-school funding was unconstitutionally inadequate. Soon after the most recent ruling, the legislature passed the law limiting the administrative authority of the court.
A spokeswoman for the Kansas courts said she could not comment, given the ongoing litigation.
Slate’s Mark Joseph Stein has more detail:
The Kansas trouble started in 2014, when the state supreme court ruled that the disparity between school funding in rich and poor districts violated the state constitution. The justices ordered the legislature to fix the problem. Soon after, the legislature passed an administrative law that stripped the supreme court of its authority to appoint local chief judges and set district court budgets. (Instead, district court judges—who are often quite conservative—were allowed to elect their own chief judge.)
Arriving shortly after the school funding ruling, this law was widely seen as a retaliation against the court—and a warning. In their first ruling, the justices stopped short of declaring that the school system as a whole was constitutionally underfunded. But the court acknowledged that it would one day answer that question. And if the justices mandate more school funding, the legislature will have to raise taxes, a step few legislators are eager to take.
The administrative law, then, was likely an effort to scare the court out of issuing a dramatic ruling in favor of greater school funding. Just in case the court didn’t get the message, Brownback and the legislature have also threatened the justices with blatantly political reforms, like subjecting them to recall elections, splitting the court in two, lowering the retirement age, and introducing partisan elections. (Currently, a nominating commission creates a pool of candidates, and the governor selects from that bunch.)
Now the court has an opportunity to strike down the administrative law, which probably violates the state constitution. And that’s where Brownback’s insane new law comes in. The law declares that if the supreme court strikes down the administrative law, the entire state judiciary will lose its funding. Brownback and the legislature are essentially bullying the judiciary: Uphold our law or cease to exist.
I’m not in the least bit versed in Kansas law, so I’m not going to comment much on the legal issues involved her, which include not only the legality of this effort to defund the judiciary if it rules contrary to the way the legislature likes, the legality of the law that stripped the Supreme Court of its power to appoint local Chief Judges, or the Court rulings regarding school funding that apparently started off this whole fight. At the very least, though, it strikes me that there are some serious separation of powers issued raised by an effort by the political branches of government to hold the judiciary hostage by threatening to cut off its funding if the Justices fail to rule in a manner that the legislature wants it to. The Kansas Constitution appears to give the judicial branch the same sort of autonomy that the Judicial Branch enjoys in the Federal system, for example. so what the Kansas legislature is doing here would be akin to, say, Congress passing a law that said that funding for the judiciary would be contingent upon the Supreme Court ruling that states have a right to ban same-sex marriage. On the surface at least, it seems to me that there would be a fairly strong argument that this is unconstitutional and that, therefore, the newly passed bill in Kansas should be unconstitutional.
Leaving the legal issues aside, though, there is something completely unseemly about what Kansas Republicans are doing here. The legislature and Governor have basically told the seven Justices on the Kansas Supreme Court that if they strike down the administrative law that changed how Chief Judges are selected then they will endanger funding not only for themselves but also for every other officer and employee of the judiciary in the entire state, from the Chief Justice himself all the way down to the clerks in local courts who process paperwork. How exactly can anyone expect the Justices to not take that fact into account when ruling on the case before them? If they rule that the law is unconstitutional, they set off a constitutional confrontation with the legislature that will cause judicial chaos at all levels. Even if that conflict is ultimately resolved in favor of the judiciary, damage will be done. If they end up h0lding that the law is constitutional, then how can anyone believe that the holding is based on an honest assessment of the legal issues rather than a reaction to legislative blackmail? And if it works with this seemingly minor administrative law, then what’s to stop the legislature from doing it again with something far more controversial?
These are the kind of things you expect to see in a banana republic, not in one of the states of the United States, and the worst thing about it is that the voters of Kansas put these people in power.
