Archive for Wednesday, December 23, 2015

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.

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.

December 23, 2015, 10:01 a.m. Updated December 23, 2015, 2:33 p.m.

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— 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.”

Continue checking ljworld.com for further updates on this story.

Comments

Mark Luttrell 1 year, 4 months ago

Same verse, same as the first.

It's sad that the KS Supreme Court continues to rule what everyone forecasts will happen, and it's never in favor of the Brownback Administration and current GOP. Just the same old song and dance while the court costs go on the taxpayer dime. It would be nice to have the Administration and the KS GOP Legislature ponder a wee bit before creating and signing a bill on whether or not it's actually Constitutional, just so they wouldn't waste so much time and taxpayer money on legal fees and court costs, not to mention continual embarrassment on their part.

Guess I'll just keep wishing.......

Alex Landazuri 1 year, 4 months ago

this isnt the fault of the court. its the fault of the house, senate and brownback. they obviously missed the whole separation of powers lecture when they were in school. i actually love the fact that the judicial branch is standing up to the bully that is the GOP.

Mark Luttrell 1 year, 4 months ago

Yes, that's exactly my point - Brownback and the GOP cont. to waste time with laws that they know are unconstitutional. It's just a rinse and repeat with them.

Fred Whitehead Jr. 1 year, 4 months ago

No.......it is the fault of voters who buy the vicious attack ads at election time and vote for these candidates owned by the Koch Industries Regime. We have no one to blame except these stupid and clueless citizens that somehow find the fiction that the Koch owned Kansas Republican Party is in some ways beneficial to the state. It is not.

This is not over. They will be in office for a few more years. Then the same clueless voters will repeat this error. And "Bleeding" and "Flyover" Kansas will continue to rot in the degrading slime of the actions of these damaged elected officials.

Tyler Palmer 1 year, 4 months ago

I'd suggest it's not just the idiots that only vote for candidates with an "R" next to their name no matter what or those that are stupid enough to be swayed by the ridiculous attack ads, it's also all the folks in the population centers that simply don't vote or the Johnson County Republicans that knew reelecting Brownback wasn't in their best interests, but either voted for him anyway or couldn't bring themselves to vote for Davis.

Of the approx. 1.7 million registered voters in 2014, roughly half participated in the election. With a margin of only about 32,000 votes, if even a small fraction of the folks that were registered but didn't vote would have participated, things could have been much different. People really need to participate and need to do their civic duty and ensure they are also educated about the issues and the candidates and hold candidates accountable for all the lies before and during the campaign.

https://en.wikipedia.org/wiki/Kansas_gubernatorial_election,_2014

http://www.kssos.org/elections/14elec/2014_July_Voter_Registration_Certified_Numbers%20.xlsx

Chris Golledge 1 year, 4 months ago

What am I missing? If the law defunding the judiciary is ruled unconstitutional, then it is no longer a law, and the judiciary is not defunded.

Chris Golledge 1 year, 4 months ago

If the funding bill is nonseverable from the judiciary bill, and the judiciary bill is unconstitional, then the entire funding bill is null and void. It would be nice if our lawmakers paychecks were cut off as a result.

Kevin Millikan 1 year, 4 months ago

Caleb Stegall needs to be home playing with his toys.. he has no business on that court.

Kate Rogge 1 year, 4 months ago

Hallelujah. I wish they'd issue a decision on school funding now.

Greg Cooper 1 year, 4 months ago

They did, Kate, several times. The dunderheads in the legislature just keep drinking the Koch Kool Aid the tells them that everything will be alright just so long as there is enough money thrown at the "Republican Party" to convince enough clueless voters to stay the way.

As Artie Johnson used to say as his "Laugh In" character, "Vellly intelesting. But schtupid!"

Kate Rogge 1 year, 4 months ago

I thought there was still a decision to be rendered about block grants to counties, and whether block funding complied with the State's 'adequate' funding requirement?

Cille King 1 year, 4 months ago

Less than 20% of Kansas eligible voters voted for Sam Brownback in November 2014.

Lawrence Freeman 1 year, 4 months ago

It would probably help voter turnout if jury selection would quit targeting voters.

Cille King 1 year, 4 months ago

Jury selection is done from both drivers license lists and voters.

Lawrence Freeman 1 year, 4 months ago

Granted, but I have never talked to a person who quit driving because of it.

Greg Cooper 1 year, 4 months ago

"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.”

Liar, liar, plants on fire! That threat was made simply and wholly to make sure the judges stayed in line. Good to see that that didn't work.

Fred Whitehead Jr. 1 year, 4 months ago

Cille!!! THERE IT IS!!!!!!!!!!! Voter apathy -= crappy government.

That is what we got~~~~

Bob Forer 1 year, 4 months ago

OUr Appellate Judges aren't liberal or conservative. With the exception of Stegall, who is far right, they are not judicial activists. They are simply experienced, intelligent, worldly and moderate folks who know how to apply the law ably and fairly to the many cases they hear.

This case was so clear cut that even Stegall, who is Brownback's judicial errand boy, had too much honesty and shame to write a dissenting opinion.

Brownback will go down in history as the worst Kansas governor ever. It will be a fitting epitaph to to this scoundrel's legacy.

Kevin Millikan 1 year, 4 months ago

the only thing I think I've disagreed with Mr. Forer on.. please don't give Stegall the credit of honesty or shame..

Bob Forer 1 year, 4 months ago

An intellectually dishonest person such as Stegall has an occasional decent interlude when to do otherwise would require an astonishing amount of chutzpah.

Michael Kort 1 year, 4 months ago

Stegall just needs a second head, to hold all of the nonsence that is going around in the one that he has ! This doesn't surprise me that he didn't join in but came up with wandering opinion concerning the ruling of the other judges that he didn't really disagree with .

Greg Smith 1 year, 4 months ago

The state legislators are the ones who are supposed to be making the laws, only when a law interferes with justice is it the right of the judges to change it. Judges purpose is to make sure everyone has a day in court and that everyone is treated fair, all decisions should be made by the jury, including sentencing. In today's government the courts are running the entire 3 branches of government, this needs to be stopped. The judges are getting their buildings made of marble, making them look so holy, when they are not, because everyone is afraid of them, they can destroy anyone with just one piece of paper and a pen, we need to pull their teeth, and not let them do anything without the OK of the jury. While we are at it lets do away with judicial immunity, and prosector immunity when it is done with malice and with evil intent, lets put them in prison and make them pay damages when they violate our rights.

Bob Forer 1 year, 4 months ago

Greg, based on your comments it appears you don't quite understand how our judiciary or our Constitutional form of government operates. Where did you get your information from? Did you take civics in high school?.

Richard Heckler 1 year, 4 months ago

The RINO party is merely clearing the way to cut wages,put as many as possible in debt over their heads and over throw the USA to become a dictatorship. Which places the military and all law enforcement under their jurisdiction. Backed with mussolini style fascism.

Kate Rogge 1 year, 4 months ago

Working people cannot afford daycare expenses, and restricting women's access to safe and legal abortion increases the likelihood that women will be forced out of the labor market to care for multiple children. That leaves the working man to support a wife and children on one income and in no position to make demands for better wages and working conditions, let alone decent public schools or adequate social services like healthcare. Then let's take away their votes. Let's all return to the good old days when working men and women had nothing, shall we? Back when America was great for the 1% alone.

Richard Heckler 1 year, 4 months ago

99% of the 99% need to come out and vote if the middle class and respectable wages are to be saved.

Union busting is about reducing wages across the board. Union wages set the pace for respectable wages which is to say unions were working for all in the working class spectrum whether one was a union member or not.

Oh and BTW I say it is time to set a tariff on all USA products manufactured abroad. As it is it doesn't matter what products we buy IF products bearing a USA name are manufactured in China,Viet Nam,Columbia etc etc etc.

Bob Forer 1 year, 4 months ago

As Stegall is the youngest and newest member of the Kansas Supreme Court, I found his decision to write a concurring yet critical opinion against the other six justices exceedingly arrogant.

Its a shame he is so young, as we will have to suffer him for many many years. He has the potential to be as damaging to our State as Scalia is to our country.

Michael Kort 1 year, 4 months ago

Maybe Stegall is just afraid to leave the nest ? Or he has higher aspirations that require a bit more corporate help ? Can he ever be removed for anything less than a "whatever" ? A "whatever" that would be in the interests of his keepers, to have over his head ? The folks who created this guy are all about government as long as government is a fascist regime .

Michael Kort 1 year, 4 months ago

ONE WONDERS, DID "brownie & company" SET ASIDE THEIR OUIJE BOARDS, THEIR TARRO CARDS AND TAKE UP "PSYCHIC AUTOMATIC HAND WRITING", TO COME UP WITH THEIR DIMWITTED LEGISLATIVE CREATIONS, AIMED LATELY, AT HOBBLING THE JUDICIAL BRANCH OF OUR TRADITIONAL AMERICAN ( THREE INDEPENDANT BRANCHES OF GOVERNMENT ) GOVERNMENT , THRU "STRANGE AUTO HAND WRITEN LEGISLATION" ? SO,...WHO WERE THEY CHANNELING, FROM THE ASTRAL PSYCHIC PLANES ???.......I DON'T THINK THAT IT WAS JESUS !!!.............THIS SOUNDS MORE LIKE CHANNELING BIG CORPORATE DONORS, WHO PAY SLIGHT ATTENTION TO MUCH MORE THAN GETTING RICHER.... AND WHATEVER ELSE IT IS, THAT THEY WANT, AT THE OBVIOUS EXPENSE OF EVERYBODY ELSE.... AND GOOD GOVERNMENT, THAT IS BASED ON THE CONSTITUTION OF THIS COUNTRY,... AS OPPOSED TO THE PERSONAL WHIMS OF CORPORATE BRATS AND RELIGIOUS NUT BAGS, WHO OPPOSE OUR DEMOCRACY THAT EMPOWERS THEM !

Richard Heckler 1 year, 4 months ago

The RINO party is merely clearing the way to cut wages,put as many as possible in debt over their heads and over throw the USA to become a dictatorship. Which places the military and all law enforcement under their jurisdiction. Backed with mussolini style fascism.

Fred Whitehead Jr. 1 year, 4 months ago

Well, yeah, I guess there is some truth in this. However given the current political opera that is transpiring here over a year from the election, I would say that the Trump extravaganza is a more likely presentation. You do not see that of course, in this news rag that turns a blind eye to national issues. You need the check out CNN and Fox to get that line.

But the resemblance between Trump and Hitler is more significant than Mussolini, both were on the cover of Time Magazine, and both have appeared in the public eye by making grand and glorious statements that they "had the solution, they knew how to fix the failing economy, how to govern the country, how to cleanse the society of malcontents. Hitler targeted the Jews, Trump the Muslims. What other resemblances to two fascist dictators do you not need????

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