The checks and balances provided by the three branches of government have served our state and nation well. There is a natural tension among the executive, legislative and judicial branches that serves to keep the power of any single branch from gaining too much control.
That tension is particularly noticeable in Kansas right now — with both the legislative and executive branches targeting the judiciary — and it’s important that it not be allowed to boil over to the detriment of the state.
Gov. Sam Brownback and a number of legislative leaders have made no secret of their frustration with the state’s highest courts, the way they are appointed and the decisions they have made concerning the state’s financial support of K-12 education. In his State of the State Address, Brownback took some veiled but specific shots at the state’s judiciary and the role it has played in state school funding. Rather than being litigated in the courts, he said, school funding “is the people’s business, done by the people’s house.”
“Too many decisions,” he said, “are made by unaccountable, opaque institutions,” an apparent reference to the state’s appointed judiciary.
So are the courts really “unaccountable” and “opaque”? Judges in all of the state courts are accountable to Kansas voters who have the opportunity to either elect or decide whether to retain them at regular intervals. And the courts are hardly opaque. Most of their proceedings are public, and testimony and decisions are painstakingly documented.
In the same section of his State of the State address, Brownback also quoted from the Kansas Constitution: “All political power is inherent in the people.” That’s true, but “political power,” which rules the executive and legislative branches, represents the power of the majority. That’s why it’s so important to protect the state’s judiciary from the vagaries of political power. The job of the governor and Legislature is to respond to the political will of the people, the majority of voters who elected them. By contrast, the job of the courts often is to protect the rights of the minority and, always, to protect the state’s core principles as they are expressed in the state constitution — not bow to the ever-changing political winds or the preferences of current elected leaders.
In his State of the Judiciary speech last week, Chief Justice Lawton Nuss provided a strong defense of the state’s judiciary and the need to fund it properly, but he also offered credit were it was due, including to the Kansas House for approving much-needed raises for court personnel. “The lines of communication are open,” Nuss said.
Sen. Jeff King, chairman of the Senate Judiciary Committee responded to what he characterized as an “olive branch” from Nuss with a letter asking the chief justice to support efficiency proposals for the courts and a plan to further raise court fees to fund the courts. Nuss specifically questioned the advisability of higher fees in his address, but at least, as he said, “The lines of communication are open.”
It’s important for the three branches of government to work together, but it’s important to remember that the courts serve a different purpose and different master than the other two branches. The governor and Legislature, with the help of voters, can change the laws or even amend the Kansas Constitution, but once that work is done, it’s up to the courts to make sure the intent and principles of those laws are upheld.