Chief justice: No need for Supreme Court recusals from court funding case

Chief Justice Lawton Nuss said he and his peers on the Kansas Supreme Court would not necessarily have to recuse themselves from a case about their own power and funding.

His comments Thursday came a day after a Shawnee County judge struck down a 2014 state law that tied judicial funding to policy reforms that weakened the Supreme Court’s power over district courts.

The law said that judges in each district court would elect a chief judge instead of having the Supreme Court appoint one.

Judge Larry Hendricks ruled Wednesday that the policy change violated the “separation of powers” of the Kansas Constitution by impinging on the Supreme Court’s authority over the state’s courts.

A second law passed by the Legislature this year stated that funding allocated for the court system through June 2017 would become “null and void” if the policy change was struck down. Hendricks’ ruling did not address the second law.

Hendricks stayed his order Thursday following a request from Attorney General Derek Schmidt, meaning that courts are in no danger of closing in the short term. Schmidt has indicated he intends to appeal.

Nuss was initially guarded when speaking to reporters Thursday, saying it was against the practice of the court to comment on cases that may come before it. He emphasized that the case was still at the district court level.

When asked if the Supreme Court could rule on a case that concerns its own power and funding, Nuss said that there are precedents that allow justices to hear the case.

“When some similar situations have arisen around the country – not necessarily on court funding – courts have invoked what they call the rule of necessity, which means by necessity the judges on that supreme court will have to rule on that even though someone could suggest that, well, they’re ruling on an issue of great interest to them,” Nuss said. “Because the alternative would be to move all those justices off the court and bring in seven strangers and that just has not over the years proven to be practical.”

Senate Vice President Jeff King, R-Independence, an attorney who led the push for the policy at issue, said recusal is always a personal decision for judges to make.

“In this case it’s important to note that not only does this law directly affect the chief justice’s authority, but the chief justice has already commented that he feels that the law is unconstitutional. … He has to decide whether he can fairly and impartially hear a case that he has already publicly prejudged,” King said.

When Gov. Sam Brownback signed the policy into law in 2014, the Supreme Court released a statement saying that it “weakens the centralized authority of the Kansas unified court system in exchange for money to pay our employees and keep courts open. … This is a poor trade. We have very serious concerns about what will happen to the administration of justice in Kansas.”

Asked about the 2014 statement, Nuss said Thursday that he opposed the “unfair funding of our court system” and that he has “problems with any system that would jeopardize that funding because it ultimately hurts the people of Kansas.”

Brownback’s office would not answer questions about the issue Thursday.

King said the state is in the early stages of “litigation that has many chapters left” and that it “has never been about eliminating funding for the judicial branch.” He said allowing district judges to pick their own chief judges is meant to increase local control.

eCourt project

Nuss’ comments came during the rollout of the Supreme Court’s eCourt project, which will move the state’s courts to a central electronic filing system that will allow clerks in less busy courthouses to assist colleagues elsewhere in the state. Nuss said the move will increase the courts’ efficiency and transparency by making more documents readily available online.

Justice Dan Biles, who is heading up the project, said that when the court began pursuing e-filing in 2009 it had “beg, borrow and steal to move the project along.” He jokingly acknowledged that this week’s ruling puts the funding in doubt again.

“A couple of days ago I wrote this sentence: This time we don’t have any new money, but the Legislature has earmarked the first $3 million and as things stand now we at least know we have the availability of funding where we didn’t before,” Biles said. “I guess we’ll find out if that’s true over the next few days.”

Asked about the perception that there is animosity between the Legislature and the judicial branch, Nuss said that “tension naturally comes when you have separation of powers … whether that tension has been higher lately in Kansas than in other places I suppose you could make that case.”

Nuss said he would welcome a meeting with lawmakers or the executive branch to see what could be done to resolve tension.

Other tensions

The battle over court funding is not the only area where tension exists.

The court will rule on school funding in the future, possibly ordering the Legislature to steer millions more dollars to schools. That could set off a constitutional crisis if lawmakers refuse to comply. Even if the Legislature doesn’t fight the court on the ruling, the question of where to find additional money would be difficult to answer.

The ruling will likely come down a few months before Nuss and other members of the court stand for retention in 2016. Brownback supported efforts to oust Justices Eric Rosen and Lee Johnson in 2014. Both were retained by slim margins.

“It’s a poor judge indeed who worries about things like that,” Nuss said when asked if concerns over retention races and potential political fallout will have any effect on the court’s ruling in the school finance case. “Our obligation is to the people of Kansas and the Kansas Constitution.”

This story was originally published September 3, 2015 at 12:42 PM with the headline "Chief justice: No need for Supreme Court recusals from court funding case."