Fred N. Six: Protect the independence of judicial branch

Former U.S. Chief Justice William Rehnquist called judicial independence “one of the crown jewels” of American democracy. Yet in Kansas today, judicial independence is in jeopardy as a result of the passage of Senate Substitute for House Bill 2338, a new state law violating the separation of powers among the legislative, executive and judicial branches of our government. Kansans should be concerned.

Why? As citizens, we are entitled to a fair day in court, whether to ensure that our rights are protected or our legal disputes are decided impartially. We should be extremely skeptical of efforts by the legislative or executive branches to manipulate the powers assigned to the Kansas Supreme Court by our constitution and make the courts subservient to the political branches.

That is exactly what has occurred with the new law, which strips our Supreme Court of core powers that it needs to manage state courts efficiently. The new law does this by holding court funding hostage to a newly prescribed overhaul of the system.

For courts to get the money to operate, our Supreme Court must now give up its authority to appoint chief judges of the district courts and to control district court budgets. Critical budgeting and personnel responsibilities have been scattered among the chief judges of each of the 31 district courts.

The problem with this “scattering scheme” is that it runs directly counter to what the people of Kansas in 1972 ratified as part of our constitution. The 1972 amendments provided for a unified court system and granted the Supreme Court “general administrative authority over all courts in this state.” The words of the Article 3, Section 1 constitutional grant are unambiguous: The administrative authority for Kansas’ courts is vested in the Supreme Court. Now, with their action, the Legislature and governor have begun chipping away at that authority.

The new law clearly endangers our principle of separation of powers. Legislators may disagree with a governor, but they cannot strip the governor of his constitutional authority to organize and run the executive branch. And if the governor dislikes a piece of legislation, the governor cannot remove the legislators who voted for it.

Similarly, if the governor and Legislature do not like court rulings, our system does not allow them to siphon off the power of the judiciary.

It is no coincidence that these efforts follow last year’s attempt by some legislators to change the people’s constitutional process for selecting Supreme Court justices, in a way that would have injected politics into the process. That failed, so now we have a fresh attempt to erode the Supreme Court’s authority.

It is not a stretch to say that the Legislature and governor, exercising executive and legislative hubris, are attempting to undermine the judiciary in defiance of the will of the people of Kansas.

In the face of this threat, Kansans should “circle the wagons” and save our independent judiciary. We should urge the Legislature to repeal the new statute and restore the proper separation of powers. Should the Legislature and the governor fail to act, the new law appears vulnerable to legal challenge.

This story was originally published October 2, 2014 at 7:02 PM with the headline "Fred N. Six: Protect the independence of judicial branch."