JURIST Guest Columnist William J. Rich, of Washburn University School of Law, discusses the conflict between branches of the Kansas government that has been intensified in the case of Solomon v. Kansas…

In 2014, the Kansas legislature altered the way in which chief administrative judges are chosen, transferring selection authority from the Kansas Supreme Court to the judges of each of the thirty-one judicial districts. Larry Solomon, Chief Judge of the 30th Judicial District in Kansas, challenged the statute on grounds that it conflicts with a provision of the Kansas Constitution giving the Supreme Court “general administrative authority over all courts in this state.” On September 2, 2015, Kansas District Court Judge Larry Hendricks ruled that the statute violated the state’s constitution. In a deeply rooted conflict between branches of the Kansas government, the judicial branch won that skirmish, but now faces a threat to all judicial funding as a result.

Judge Hendricks had little difficulty resolving the limited legal issue he faced in the case of Solomon v. Kansas. The primary question boiled down to whether removal of the Supreme Court from its role appointing the chief judges responsible for administering the district courts significantly interfered with administration of the judiciary. The state’s lawyers had little to offer in defense. They argued that some states had opted for peer selection of chief judges, but they could not identify any states that opted for such a system in the face of contrary rules promulgated by the state’s highest court. They noted that in the state’s two largest districts, judges had already worked out a cooperative arrangement with the state Supreme Court for peer selection of their chief judges, but that argument appeared better designed to demonstrate that the current system worked rather than providing support for change. The judge reached a predictable and superficially unremarkable conclusion that the state legislature significantly interfered with Kansas Supreme Court authority to administer the judicial branch.

The decision by Hendricks, however, triggered a more fundamental dispute. When the legislature initially mandated the change in selection of chief judges, they did so within the context of an appropriations bill for the judicial branch that included a non-severability clause voiding the entire act if courts invalidated any of its provisions. When that appropriations bill expired, the legislature tied future judicial appropriations to the outcome of the pending litigation with a new severability clause that again terminates all funding for the judicial branch if Judge Solomon ultimately prevails in his case against the state.

On September 4, 2015, four district court judges in Kansas, including Judge Solomon, sued the state to challenge that legislation. The new constitutional question before the Kansas courts asks whether a state may condition judicial appropriations on the outcome of pending litigation. Arguably, states may condition appropriations in a manner that presumes the validity of related state laws, and the original non-severability clause enacted by the Kansas legislature in 2014 may have fallen within that relatively innocuous category. The decision by the legislature to subsequently condition funding in what appears to be a direct response to pending litigation, however, crosses a different line. The plaintiff judges challenging the 2015 enactment argue that such a law violates separation of powers doctrine by interfering “with the judicial branch’s exclusive constitutional authority … to hear and decide cases on the merits without fear or favor.” They also argue that elimination of funds for the judicial branch breaches a separate state constitutional obligation to maintain compensation for judges, and that due process rights of litigants are violated by a clause tempting a court to reject a challenge for fear of otherwise losing its funding. Furthermore, although beyond the scope of the plaintiffs’ immediate litigation, enforcement of a law defunding the judiciary would eventually leave all litigants without access to due process.

In the face of such constitutional challenges, observers may question the aims of legislators who seem intent on waging this war. Without answering that question, lawyers for the state sought an emergency stay pending appeal from the ruling by Hendricks, and supported their motion with an admission that “loss of funding would cause irreparable injury to both parties and the public at large,” and that “key legislators have indicated that such a drastic outcome was not the Legislature’s intent.” The same lawyers, however, had filed a “Supplemental Statement of Facts” shortly after the legislature acted in 2015 emphasizing the threat to judicial appropriations that would follow from an adverse ruling, implying that such consequences should be considered prior to ruling against the state.

In Solomon , the plaintiff and the trial judge voiced questions about legislative intent. No legitimate reasons were offered to explain why judicial funding should be tied to the power to appoint chief district court judges. Recognizing the “troubling set of circumstances” crated by the defunding threat, Judge Hendricks noted “legitimate questions” regarding “any presumption the court might otherwise give to the legislative motive at work.” He also noted the plaintiff’s more pointed characterization of the defunding provision as a “naked act of intimidation” that would threaten “the public’s confidence in a fair and impartial judiciary.”

The argument that the legislature wanted to threaten the judiciary to gain leverage in litigation gains credibility from a variety of other Kansas legislative proposals that have circulated within the statehouse. The same legislators who challenged the state’s supreme court authority to appoint chief judges also debated plans for changing the process of selecting judges, limiting their tenure in office and limiting the state supreme court’s jurisdiction. Their alternative “court-packing” plans would have made Franklin Roosevelt blush.

Recognizing threats against the judiciary still does not answer the question about why so much animosity exists between Kansas politicians and judges. The answer to that question appears to be tied to another issue pending before the Kansas Supreme Court. For more than a decade, legislators and judges have locked horns over questions about funding education. In spite of repeated rejections from the district court and the Kansas Supreme Court, lawyers for the state remain intent on arguing that judges have no authority to interpret the “suitable education” provision of the state’s constitution in a manner that requires increased and more equitable funding for public schools.

Education funding issues have devolved into questions about the exercise of judicial power. No leap of imagination is needed to see the connection between this school finance issue and the lawsuit over judicial administration. Lawyers for the state argued in Solomon that allowing courts to prevail when they disagree with the legislature about how to select chief administrative judges “would give the Kansas Supreme Court a veto over an entire category of legislation.” Outside of Kansas, such an argument may seem bizarre. Within the US, the “rule of law” includes a commitment to the principle that courts may make final rulings regarding constitutional interpretation. In Kansas, however, that commitment to judicial supremacy may not be so secure.

In any case involving arguments that a legislature overstepped its constitutional authority, legitimate questions arise regarding the extent to which judges should defer to legislative judgments. That question applies to issues of school finance or judicial administration. Although other states have provided a range of answers to that question specifically within the context of deciding what the judicial role should be when asked whether obligations to fund schools have been met, no other state has seriously questioned the underlying authority of the judicial branch to resolve such disputes. In Kansas, however, the legislature appears prepared to retaliate against the judges who determine legislative action violates the state constitution.

Judge Hendricks concluded his opinion in the Solomon case with what may best be described as a plea for cooperation between the branches of the Kansas government. As he noted, our “usual parlance … refers to the legislative, executive and judicial departments of government as ‘branches.’ Each is largely independent in executing its constitutionally mandated duties. But what is all too frequently lost in the metaphor, without going too far out on a limb, is that the branches must, ultimately, remain connected with one another on some level in order to survive and thrive.” The question in Kansas is whether anyone will hear that plea.

Professor William J. Rich was a Rockefeller Fellow at Yale Divinity School. Prior to joining the Washburn Law faculty, he was a law clerk for Chief Justice Donald Wright of the California Supreme Court and he served as a staff attorney at the Legal Aid Society of Wichita. He served as Associate Dean of Washburn University School of Law for five years and was Acting Dean in the fall of 1985 and Interim Dean during 2006-2007. For several years he worked with Washburn Law Clinic students representing inmates in constitutional challenges to Kansas prison conditions. Professor Rich’s publications address a wide range of constitutional law topics, including federalism, sovereign immunity, prison conditions and race relations. He also authored the three volume treatise, Modern Constitutional Law (3rd Edition), published in 2011.

Suggested citation: William J. Rich, In Kansas, a Battle of the Branches, JURIST – Forum, Sep. 29, 2015, http://jurist.org/forum/2015/09/william-rich-kansas-government.php

This article was prepared for publication by Yuxin Jiang, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to her at commentary@jurist.org