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.”
The Kansas Supreme Court has granted a freeze of a lower court ruling that struck down the legislature’s block grant plan for funding public schools and ordered Kansas to pay $50 million for public schools (see Gavel Grab).
Chief Justice Lawton Nuss signaled that the high court would move quickly to hear arguments, the Topeka Capital-Journal reported.
Regarding recent criticism by Gov. Sam Brownback and others of the lower court’s ruling, a Hays Daily News editorial stated, “The court’s role is to determine if laws pass constitutional muster. If doing their job correctly results in being called ‘activist,’ judges should wear the label proudly.”
Kansas Gov. Sam Brownback has criticized the U.S. Supreme Court’s marriage ruling and two Kansas Supreme Court rulings, on abortion and school funding, as politically driven and has called for a “more democratic” selection process for judges.
Earlier this year Brownback proposed changes to the way Kansas justices are selected, by either shifting to their direct election or to a Washington-style system of appointment by the chief executive and confirmation by the state Senate. The justices currently are chosen through a merit selection process.
The Topeka Capital-Journal reported Brownback’s latest views by relying on an email sent from his office to people who have signed up for such communications. The email branded the nation’s highest court a judiciary “unrestrained by the rule of law.” Read more
The new funding plan “does nothing to alleviate the unconstitutional inadequacy of funding,” the panel said, “but rather, exacerbates it,” the Topeka Capital-Journal said. Their decision set the stage for a possible showdown between the legislature, executive branch and courts.
The panel of three judges, Brown back said, “has now taken upon itself the powers specifically and clearly assigned to the legislative and executive branches of government.” He added, “In doing so, it has replaced the judgment of Kansas voters with the judgment of unelected activist judges.” Read more
“Kansas judges have been the pariahs of state government ever since Gov. Sam Brownback and conservative lawmakers took over the reins of power,” Barbara Shelly wrote in a Kansas City Star column this week. She outlined a series of past attacks, then zeroed in on legislation passed this year and signed by Brownback for funding state courts, which also would defund the courts if they defy the legislature’s will and overturn a specific statute. That statute takes away the high court’s authority to name chief district judges.
“The Kansas Legislature is using funding for the court system as a club to coerce the state’s highest court into a ruling it finds favorable,” Shelly wrote. “Lawyers in Kansas say the maneuver takes their breath away. A staffer at the Brennan Center for Justice in New York, which tracks threats to an independent judiciary, says he’s never seen anything like it. Anywhere. Only in Kansas.” She said it crossed the line.
Sen. Ted Cruz, a Republican candidate for president, recently introduced a bill to bar federal courts from ruling on state marriage laws. In Huffington Post, a legal scholar calls the measure “bullying” and akin to declaring “war on the independent judiciary.”
Cruz introduced in April his Protect Marriage from the Courts Act of 2015. “Judges have taken an unprecedented activist role to strike down state marriage laws,” he said at the time. But Law Professor Alex Glashausser of Washburn University in Topeka, Ks. writes at Huffington Post that Cruz’s approach is misguided, and like court defunding legislation recently signed into law in Kansas (see Gavel Grab), a kind of court bashing:
“This legislative attempt to restrain the judicial branch violates the separation-of-powers doctrine, and the invitation to state judges to ignore a Supreme Court decision makes a hash of the constitutional enshrinement of federal law as ‘the supreme Law of the Land.'”
“If the political branches wield necessities like jurisdiction and budgets as weapons for browbeating courts into submission, the damage to judicial independence will in turn erode the rule of law.”
At home and from afar, the Kansas legislature and governor continue to take a beating from critics who say these politicians are engaging in extortion-style tactics with Kansas courts.
From a Kansas City Star editorial: “The Legislature … passed, and [Gov. Sam] Brownback recently signed, a reckless measure that would eliminate funding for the state’s entire judicial branch if the Kansas Supreme Court overturns a 2014 law on judicial selection in district courts. This is an unconscionable intrusion on the actions of another branch of government. The Legislature’s act is essentially extortion: Rule in our favor or be shut down.”
From a Los Angeles Times editorial: “In what can only be seen as attempted extortion, Brownback last week signed into law a measure that will defund the state’s court system should any state judge rule unconstitutional a separate 2014 court reform law enacted by Brownback and his minions. … It’s unconscionable that a state legislature and a governor would resort to such clearly unconstitutional tactics to try to rig a court case.” Read more
For his signing a court funding bill that also threatens to roll back the entire funding package (see Gavel Grab), Kansas Gov. Sam Brownback is getting a scorching from national media commentators.
“Brownback and the legislature are essentially bullying the judiciary: Uphold our law or cease to exist,” summed up Mark Joseph Stern at Slate. The bill has a controversial provision that strikes the funding if a Kansas court overturns a year-old statute that removed authority of the state Supreme Court to name district court chief judges.
At MSNBC’s The Maddowblog, it was noted that Rachel Maddow recently characterized the legislation as telling the courts, “‘You rule one way, you’re fine. You rule the other way, we will abolish the courts.’ So go ahead and consider that case, Kansas judges. Enjoy your judicial independence.”