“An ax is hanging” over funding of the entire Kansas state court system because “elected officials … chose to make political pawns of state courts,” Justice at Stake said on Thursday after a ruling by a Shawnee Court judge a day earlier (see Gavel Grab).
Judge Larry Hendricks struck down as unconstitutional a 2014 statute taking away from the state Supreme Court the authority to pick chief district judges. “This ruling is a victory, but more needs to be done,” said Liz Seaton, Interim Executive Director of Justice at Stake, in a statement. Because another law said Kansas courts would be defunded if the provision were struck down, questions immediately were raised about possible defunding of the state judiciary.
“We know that lawyers in the case have asked for a stay of this week’s ruling to prevent that from happening,” Seaton said. “Meanwhile, the health, safety and welfare of all Kansans hang in the balance.” (Later on Thursday, an emergency stay of the order was granted, the Lawrence Journal-World reported.) Read more
A Kansas judge struck down as unconstitutional a 2014 statute taking away from the state Supreme Court the authority to pick chief district judges. Because another law said Kansas courts would be defunded if the provision were struck down, questions immediately were raised about funding of the state judiciary.
Shawnee County District Judge Larry Hendricks did not address in his ruling Wednesday the statute about court funding, enacted by the Republican-led legislature. Attorney General Derek Schmidt said Hendricks’ decision “could effectively and immediately shut off all funding for the judicial branch,” and that he would ask the judge to put the decision on hold, according to the Associated Press.
It is not likely the courts’ funding actually is in jeopardy, state Senate Judiciary Committee Chairman Jeff King said, because opportunities for appealing the Wednesday ruling are numerous. Read more
A lawyer for District Judge Larry Solomon of Kingman County, Kansas blasted in court the “tyrannical” actions of the Republican-led legislature and Gov. Sam Brownback. Solomon is challenging a 2014 law that removed the state Supreme Court’s authority to name chief judges in 31 judicial districts.
Solomon also is challenging the legislature’s voting for a separate provision to defund state courts if they strike down the controversial administrative overhaul provision. Brownback signed both measures into law. “Their desire for control of the Kansas independent judicial system blinded their judgment and led them to pass laws creating a potential chaotic situation,” lawer Pedro Irigonegaray said, according to an Associated Press article about the Friday hearing.
Solomon’s lawsuit is viewed by some legal experts as cutting “at the very heart of an independent judicial system,” the Lawrence Journal-World reported. But Stephen McAllister, the Kansas solicitor general, defended the actions as within the legislature’s legal authority. “There’s no precedent there saying there’s an inherent separation of powers … that the top court in the system must be able to choose every chief judge,” McAllister said, according to the Topeka Capital-Journal. Read more
A “cape of confidentiality” envelops the nomination and hiring process for those administrative law judges who handle Kansas workers’ compensation cases, says a political writer who contrasts it to openness in the selection of state Supreme Court nominees.
In a Topeka Capital-Journal blog, Tim Carpenter faults both state Labor Secretary Lana Gordon and an opaque vetting process by a nominating panel tasked with finding the best administrative law judges (see Gavel Grab). Perhaps, Carpenter writes, that panel “ought to take a cue from the Kansas Supreme Court nominating commission, which interviews applicants in open forums. A list of finalists for Supreme Court vacancies is made public and forwarded to the governor, who makes the ultimate pick.”
The latter process has been denounced by Kansas Gov. Sam Brownback, Carpenter notes. The writer adds, “He’s keen on amending the Kansas Constitution to deliver to governors unilateral power to make nominations for the state’s highest court. Each pick would be subject to confirmation by the Kansas Senate.” When the legislature adopted that “closed-loop” model for selecting Court of Appeals nominees, according to Carpenter, the governor’s first pick for a vacancy was a personal friend and confidante.
Are state judges on Kansas Gov. Sam Brownback’s “enemies list?” There’s plenty of evidence suggesting that’s the case, writes Kansas City Star editorial page columnist Yael T. Abouhalkah.
Judges make the list along with schools, gays, and the poor, Abouhalkah contends. He accuses Brownback of conducting an ongoing “war on judges.” Campaigns in his “war” include Brownback’s signing a bill to defund state courts if they dare to overturn earlier legislation removing authority of the state Supreme Court to name chief judges for district courts; and his calling in January for changes in the method of selecting Supreme Court justices, according to the columnist:
“Overall, this approach is Brownback’s way to try to have much more control over who sits on the court, especially when it is called upon to decide whether he and the Legislature are acting in accord with the state constitution.”
He concludes, “To the winners go the spoils, and Brownback won. Meanwhile, his ‘enemies’ continue to lose. Too bad they don’t deserve to be on that list.”
A constitutional crisis may be ahead if the Kansas Supreme Court directs the legislature to increase school funding, and the legislature balks, former Democratic gubernatorial candidate Paul Davis warned.
“The Legislature, I think, is very likely to try to defy the court. Where it goes from there I don’t exactly know because it’s uncharted territory,” Davis told a political gathering, according to the Hays Daily News.
For background about the potential showdown over school funding, see Gavel Grab. Meanwhile, 6News Lawrence reported, “Kansas judicial branch receives national recognition for court caseload reporting excellence.” The recognition came from the National Center for State Courts, a Justice at Stake partner organization.
At a political picnic, Secretary of State Kris Kobach talked about gun owners’ rights and said the state’s highest court does not share the same concern for protecting Kansans’ constitutional liberties as do the state GOP and governor.
“The California Supreme Court is arguably one of the most left-wing supreme courts in America. The Kansas Supreme Court is every bit as bad, and you can quote me on that,” Kobach said, according to Breitbart News. Kobach is a Republican. Read more
A Wichita Eagle editorial warns, “The weapons are silent court papers rather than bombs, but make no mistake: The war over the independence and authority of the Kansas judiciary is escalating. The courts’ ability to function risks serious injury, as does the separation of powers.”
The editorial says Kansas courts are under attack from the legislature and governor. One salvo involves the legislature reducing certain administrative authority of the state Supreme Court (see Gavel Grab for background about the controversy). A second involves the legislature setting in a 2014 law a 180-day deadline for delivery of court decisions. The Supreme Court recently struck down that provision as unconstitutional, saying it violated the separation of powers doctrine, according to a Topeka Capital-Journal blog.
The Wichita Eagle editorial pointed a finger at elected politicians. “In the wake of Supreme Court decisions he disliked, Gov. Sam Brownback has been unable to find the votes to amend the state constitution and give himself freer rein to select justices. Instead, he and conservative lawmakers have sought other ways to weaken and bully the high court while trying to downplay the reforms,” it said. Read more
Defenders of fair and impartial courts in Kansas are continuing to chart strategies for challenging a provision in a new funding law for the state’s judiciary. It has been widely described as an attack on the courts.
The Lawrence Journal-World said lawyers representing Judge Larry Solomon submitted a brief threatening to challenge the constitutionality of this year’s funding law, saying the independence of the judiciary is threatened. The controversial provision (see Gavel Grab) states that if the courts strike down a year-old administrative overhaul statute that removed authority of the Supreme Court to name district court chief judges, then the funding itself will be struck down.
Attorney Matt Menendez of the Brennan Center for Justice, who is among Judge Solomon’s lawyers, noted how the Kansas episode has attracted national attention. “People are terrified that this could happen in their own state,” he said. “This is being seen as a template where state courts around the country could come under attack. Nobody has seen anything like it.” Read more
Over the July 4th holiday weekend, opinions in two Kansas newspapers sounded calls to protect fair and impartial courts from efforts to inject politics into the selection of judges.
The opinions responded to a wave of criticism of courts from Kansas elected officials, including statements by Gov. Sam Brownback last month (see Gavel Grab) and his calls for changing the ways that judges are chosen.
A Lawrence Journal-World editorial underscored the importance of insulating courts from popular opinion and political majorities:
“What the critics don’t seem to understand is that courts should not — and should never — be in the business of responding to public opinion. The executive and legislative branches at both the state and national level are directly responsible to the public, but the judiciary is intended to be responsible only to the law of the land. It’s not a matter of majority rule.”