Kansas attorney general will ask Supreme Court justices to step aside on court-power case

Attorney General Derek Schmidt announced Friday that he will ask state Supreme Court justices to recuse themselves from a case dealing with the court’s authority – and that he will recuse himself from a related case over court funding.

Two weeks ago, the chief justice said he did not think it would be necessary for the justices to recuse themselves.

Schmidt’s announcement previews the coming skirmish over two state laws passed in 2013 and 2014 to rein in Supreme Court powers.

The 2013 law seeks to strip the Supreme Court of its power to appoint district court presiding judges; the 2014 law would defund the courts’ operating budgets statewide if the law changing appointment procedures is overturned as unconstitutional.

A Topeka trial court ruled early this month in a case called Solomon v. Kansas that the Legislature violated the “separation of powers” doctrine by trying to take away the Supreme Court’s appointment power. Under the 2013 law, judges in the local courts would elect their presiding judges rather than the Supreme Court making those appointments.

Schmidt announced Friday that he has filed formal notice appealing the Solomon case to the Supreme Court. His statement said he will also challenge the justices’ authority to decide it.

“At the appropriate time, I will formally ask the Justices of the Kansas Supreme Court to recuse themselves from deciding the Solomon case because it directly involves their own power,” Schmidt’s statement said. “At a minimum, all of those Justices who – as the ‘Supreme Court of Kansas’ – publicly and pointedly criticized the legislation when it was enacted should recuse themselves from this case testing the law’s validity.”

A spokeswoman for Schmidt’s office said it’s not clear who would hear the case if the justices do recuse themselves.

On Sept. 3, Nuss said he didn’t think he or other justices would have to stand down, although he acknowledged they do have a direct interest in the outcome of Solomon.

“When some similar situations have arisen around the country … 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.”

Schmidt’s Friday statement said the justices should stand down to avoid the appearance of impropriety.

“I fully recognize that recusal of all, or almost all, of the Kansas Supreme Court Justices in such an important case of statewide concern would be unusual, but there is ample precedent in Kansas and other states,” he said.

Schmidt said he will voluntarily recuse himself from the companion case, Fairchild v. Kansas.

That suit challenges the law that would defund the courts if the state loses the Solomon case.

Schmidt said he has a conflict because he is representing and a co-defendant with Judge Jeffrey Jack of Labette County in an unrelated case. Jack is one of the judges who sued in the Fairchild case.

This story was originally published September 18, 2015 at 6:03 PM with the headline "Kansas attorney general will ask Supreme Court justices to step aside on court-power case."