By the Wichita Eagle, May 28
It says right in the Kansas Constitution that “the Supreme Court shall have general administrative authority over all courts in this state.” Yet the Legislature and Gov. Sam Brownback recently took it upon themselves to take the power to control budgets and pick chief administrative district judges away from the high court.
So much for the 1970s unification of court administration that had favored central oversight and its efficient management of resources. Lawmakers and the governor decided on their own, with little public debate and no House Judiciary Committee hearing, to divvy up budget authority among the district courts, also passing along new administrative headaches and expense.
The Governor’s Office added insult to the injury with its description of the historic and likely unconstitutional legislation in a media release: “funds the Kansas judiciary and includes items of reform.”
The key word was “and.” The law tied the extra dollars that the judiciary needed to function properly and avoid furloughs to the measures undercutting the Supreme Court.
Terming the law a “poor trade” in an extraordinary public statement after its signing, the Supreme Court also said that “it weakens the centralized authority of the Kansas unified court system in exchange for money to pay our employees and keep courts open,” concluding: “We have very serious concerns about what will happen to the administration of justice in Kansas.”
Speaking to The Eagle editorial board more recently, retired Supreme Court Justice Fred Six of Lawrence was even less measured. He called the law “an example of legislative and executive hubris” and “an overreach of both branches into the affairs of the third branch.”
Asked how the law’s constitutionality might be tested — and it should be — Six suggested someone in the judicial system affected by the change might have standing to challenge it. But he agreed that the law puts the state in uncharted waters.
One state in a similarly messy dispute over the separation of powers is New Mexico. Gov. Susana Martinez’s recent veto of a pay increase for the state’s judges prompted a lawsuit by a group of judges and two state lawmakers. Four members of the state’s Supreme Court have recused themselves, with the fifth planning to seat a temporary panel to rule on the case directly affecting judicial compensation.
In what Six views as another “poke at the judicial branch,” Kansas lawmakers complicated any legal challenge to the new law with an unusual non-severability clause saying that if “any provision of this act is stayed or is held to be invalid or unconstitutional” the whole law would be invalidated — meaning the court’s added funding would evaporate.
Between the lines of the new law is obvious anger at the Supreme Court over how it has ruled in recent years on school funding and other issues. What should deeply concern Kansans is how the Legislature and governor expressed that anger — with a law of questionable constitutionality doubling as payback and a brushback pitch.