Kansas Supreme Court strikes down judicial selection law, putting funding for courts in jeopardy

Justices take their seats to hear oral arguments in a judicial funding case before the Kansas Supreme Court in Topeka, Kan., Thursday, Dec. 10, 2015.

? In a case that threatens all funding for the entire state judicial branch, the Kansas Supreme Court on Wednesday struck down a new law that changes the way chief judges in the lower courts are selected.

In a 43-page opinion in the case of Solomon v. Kansas written by Justice Eric Rosen, the court upheld a lower court decision that said the new law violates the separation of powers doctrine as well as Article 3 of the state constitution, which gives the Supreme Court “general administrative authority over all courts in this state.”

That decision could put funding for the judicial branch in jeopardy because lawmakers passed a funding bill this year that includes what’s called a “nonseverability” clause that says if the judicial selection law is overturned, all funding for the courts for the next two years also becomes null and void.

The Kansas Supreme Court’s ruling Wednesday did not address the funding issue, which is the subject of a separate constitutional lawsuit pending in Shawnee County District Court. In September, a judge in Neosho County put the nonseverability clause on hold until March 15, giving lawmakers time to address it when they return for the 2016 session.

No immediate crisis

Kansas University law professor Rick Levy said that pause averts an immediate constitutional crisis in Kansas.

“It will take another act, or inaction, by the Legislature to up the ante, I think, before we’re really in a crisis situation,” Levy said. “At this point, since the budget can still be fixed before the loss of funds really kicks in, there’s no crisis yet.”

“On the other hand,” he said, “if the Legislature comes back and says we’re not going to fix it, or says we’re going to re-pass a budget but we’re going to take retaliatory budget action of some kind, then that might make a difference.”

Kansas Chief Justice Lawton Nuss recused himself from the case because of public statements he had made about the bills as they were being debated in the Legislature. Senior Judge Michael Malone of Douglas County filled his place on the court for the purpose of hearing the case.

Judicial selection

In 2014, lawmakers passed a funding bill for the courts that included a provision changing the way chief judges in the lower courts are chosen. Instead of being named by the Supreme Court, as they have been in the past, the new law says they are to be elected by the other judges in each district.

Judge Larry T. Solomon, chief judge of the 30th Judicial District in Kingman County, filed the suit challenging the change. The Supreme Court put the case on a fast track because terms of all the district court chief judges expire Dec. 31.

Sen. Jeff King, R-Independence, who chairs the Senate Judiciary Committee, said earlier this year that the push for the judicial selection bill came from Sedgwick County, one of several judicial districts where judges are elected in partisan races.

Those elections have produced partisan and philosophical splits on the 28-judge Sedgwick County bench. King said the change was intended to bring more “local control” in the selection of chief judges because the process would be more closely tied to the outcome of local judicial elections.

Chief judges in district courts wield significant influence over allocating the court’s budget and resources, hiring court personnel, and sometimes assigning cases to other judges.

Defunding the courts

Responding to Wednesday’s decision, King said he is confident the Legislature will act quickly to protect funding for the courts.

“The Legislature is not going to defund the courts. We were never going to defund the courts, and it’s my intent and pledge when we go back into session next month to make crystal clear that funding for the judicial branch is secure,” King said.

But King would not rule out the possibility that funding for the courts could be substantially changed as a result of the Solomon decision.

“The provision was put in the bill specifically because there were historic increases in judicial branch funding the last few years,” he said. “Multi-, multimillion dollar increases in judicial branch funding at a very tight budget time in the state. Those increases were predicated largely on the ability of getting local control, of having local judges get a say in how their local courts are funded. Having that say was an integral part of the entire budget package, which was passed as a package and so linked as a package. Now that some of that has been called into question, we have the opportunity to go back and re-evaluate that funding, but no one wants to abolish it entirely.”

Tension between branches

The case drew national attention because it was seen as part of the escalating tension between the Legislature and the courts — a kind of tension that has been growing in other states as well. In Kansas, much of the animosity stems from Supreme Court decisions over the last 10 years on issues ranging from school finance to the death penalty.

House Speaker Ray Merrick, R-Stilwell, alluded to those other issues when he issued a statement responding to Wednesday’s decision.

“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.”

The idea of tying funding of the entire judicial branch to the outcome of one case was thought to be unprecedented anywhere in the country, and Solomon’s attorneys argued that both the change in selection process and the funding threat were a direct threat to the independence of the judiciary.

“With this decision, the Supreme Court has established its authority over administrative issues with the court, and has made it clear that the court is willing and able to protect itself from the type of power grab that the Legislature, in particular through Senator Jeff King’s efforts, and the governor were attempting to perform,” said Pedro Irigonegaray, Solomon’s lead attorney in the case.

The Brennan Center for Justice, based at New York University, which served as co-counsel for Solomon, also praised Wednesday’s decision.

“Today’s ruling is a major victory for fair and impartial courts in Kansas,” said Alicia Bannon, senior counsel at the Brennan Center. “This unconstitutional law was a clear violation of the separation of powers between the courts and the political branches and an inappropriate attempt by the Legislature to interfere with the operation of the courts.”

Concurring opinion

Wednesday’s ruling was unanimous, although Justice Caleb Stegall, the court’s newest member, wrote a separate concurring opinion in which he agreed with the outcome but not the reasoning used to reach it.

The majority opinion said there may be instances when two or more branches of government “share” power, but the Legislature’s action in changing the way chief judges are selected represented a “significant interference” with the powers of the judicial branch.

In his concurring opinion, Stegall argued for a more rigid and objective standard. Quoting from an earlier case, he said: “when ‘the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.'”

Attorney General Derek Schmidt issued a statement saying he hopes Stegall’s reasoning will eventually prevail.

“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.

Schmidt also echoed King’s comment, saying he does not believe the Legislature intended to completely defund the judiciary.

“The Kansas Constitution plainly forbids the complete defunding of the judiciary, and as I have said before, I do not think that was the intended result of the Legislature,” he said. “Therefore, in light of today’s decision, I again recommend the Legislature act before March 15 to sever the connection between funding for the judicial branch and today’s Supreme Court decision.”