Essentially daring the Legislature to try to shut down the state court system, the Kansas Supreme Court ruled Wednesday that the lawmakers overstepped their authority by trying to strip the Supreme Court of its authority to select chief district judges across the state.
The ruling appears to trigger a “non-severability clause” that the Legislature wrote into law, designed to defund the court system if justices were to strike down the provision on selecting chief judges. The Legislature wanted chief judges chosen by election of the judges in each district.
In their opinion issued Wednesday, the justices said the possibility of court funding being cut off didn’t affect their decision, which was based on the constitutional principle of separation of powers between branches of government.
And they essentially threw it back to the Legislature to decide what to do about court funding going forward.
“We note only that our holding appears to have practical adverse consequences to the judiciary budget, which the legislature may wish to address, even though those concerns played no part in our analysis,” said the opinion, delivered by Justice Eric Rosen.
Court funding won’t be stopped immediately because the non-severability clause has been challenged in a separate court case and is currently stayed until March, said Rep. John Barker, R-Abilene, chairman of the Kansas House Judiciary Committee and a retired judge.
“I think that we’ll probably address it as soon as we get back in session” in January, Barker said. “I think we should address it and address it before March.”
Rep. John Carmichael, D-Wichita and the ranking minority on the House Judiciary Committee, agreed with Barker that the situation needs to be dealt with “high and early” on the Legislature’s agenda.
Although the law that would defund the court is under stay, Carmichael said, “My hope is the Legislature will take care of the problem promptly,” to avoid “having to padlock the courthouse doors.”
Carmichael, a lawyer, said cutting off court funding would be a disaster for the state, because it would mean that criminal suspects arrested by police couldn’t legally be charged and defendants already in jail would have to be released if the state couldn’t provide them a speedy trial.
On the chief-judge selection issue, the justices ruled that the state Constitution gives the Supreme Court authority to administer lower courts throughout the state and it was unconstitutional for the Legislature to interfere with that authority.
“The language of our constitution and application of caselaw factors for analyzing issues in cases involving separation of powers leads us to an ultimate opinion that is consistent with the opinions of courts in other jurisdictions: the means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature,” the majority opinion said. “By enacting (changes in the selection process), the legislature asserted significant control over a constitutionally established essential power of the Supreme Court.”
Carmichael said he agrees with the Supreme Court’s decision on the appointment issue.
“I was pleased to see that the court was not intimidated by the Legislature’s threat to cut off funding,” Carmichael said. “It shows the independence and integrity of our judicial system and that is gratifying.”
Supreme Court Justice Caleb Stegall separated himself from the court majority, filing his own concurring opinion.
He agreed that the Legislature had overstepped on the chief-judge selection law, but advocated for a stricter separation of powers between the governor’s administration, the Legislature and the courts.
“I would return this court to the active judicial role and obligation to guard and protect a clear and strong wall of separation between each of the three great departments of government – keeping each within its proper province and protecting those provinces from colonization by the other two departments,” Stegall wrote.
That sort of strict power separation has been advocated by Gov. Sam Brownback and conservative state lawmakers, who claim the courts have infringed on the Legislature’s authority on the issue of school funding.
Within hours of the decision, Attorney General Derek Schmidt and House Speaker Ray Merrick issued statements supporting Stegall’s call for the court to establish a stronger separation of powers doctrine.
“For those who think the structures of our government are themselves vital bulwarks of liberty, the reasoning of Justice Stegall’s concurring opinion offered some degree of hope that the court’s separation-of-powers jurisprudence may someday become more principled and consistent,” Schmidt said.
Merrick was more blunt.
“This time the Court found the concept of separation of powers to be compelling enough to rule in their own favor,” Merrick said. “I would hope the Court continues to hold the concept of separation of powers with such reverence in future rulings.”
A major case challenging Brownback’s block-grant funding of schools is before the Supreme Court now and a decision is expected in the next few months.
Stegall is the newest justice on the Supreme Court. He was formerly Brownback’s office attorney, was appointed by Brownback to the Court of Appeals and after a short stint there, to the Supreme Court.
Two state laws are involved in the controversy over chief judges and the court budget.
The first law, passed in 2014, was designed to take away the Supreme Court’s authority to appoint district chief judges. This year, the Legislature’s court-budget bill passed with a provision to defund all courts if the appointment law was overturned as unconstitutional.
The technical mechanism to do that was the non-severability clause, which meant that if the court struck down any portion of the budget bill, the entire bill, including all court funding, would be nullified.
Carmichael said many lawmakers weren’t happy with that clause but voted for the overall bill because they needed to make some provision for funding courts.
“A number of us fully anticipated this would be back before the Legislature,” he said.
No one yet knows what the Legislature will do, but several scenarios are possible.
▪ Rewrite the law they passed to remove the non-severability clause.
▪ Pass a new court funding bill.
▪ Leave things as they are and let the court case challenging the non-severability clause go forward.
Schmidt had asked the Supreme Court justices to recuse themselves from the case over appointment of chief judges, because they would be ruling on the limits of their own power.
Chief Justice Lawton Nuss did step aside on the case, but the other six justices decided that they could rule on it in an order issued early this month.
Nuss wrote that he was not required to recuse himself, but was doing so voluntarily because he had led the court’s efforts to get the Legislature to reject the bills that were at issue.