Topeka In a case that is gaining national attention, a district court judge in Kansas on Wednesday threatened to challenge the constitutionality of this year's judicial budget bill, saying it violates the separation of powers doctrine and threatens the independence of the state judiciary.
The threat came in a brief filed by attorneys representing Larry T. Solomon, chief judge of the 30th Judicial District in central Kansas, who is suing to challenge part of last year's judicial funding bill.
That bill tied judicial funding to several changes in substantive law, including one that stripped the Kansas Supreme Court of its power to appoint chief judges in the local courts. Solomon is currently the longest serving chief judge on the Kansas bench, with more than 25 years in that position.
Under that new law, chief judges now must be elected by their fellow judges in the district courts.
But last year's funding bill expired on June 30. So this year, partly in response to Solomon's lawsuit, Kansas lawmakers passed a two-year funding bill, inserting another provision known as a "nonseverability" clause that effectively says if Solomon wins his case challenging the new selection process, all funding for the judicial branch of state government for the next two years becomes "null and void."
"I have never heard of such a thing," said Pedro Irigonegaray, a Topeka attorney representing Solomon in the case in Shawnee County District Court.
"This action by our Legislature and our governor strikes me as the actions of a tyrant who says either you do it my way or I’m going to wipe out the ability of our state to have a judicial branch of government," he said. "That’s nonsensical."
In their brief — which went so far as to quote Magna Carta, the 13th century document that laid out the first framework for Anglo-Saxon constitutional government — Irigonegaray and other attorneys for Solomon called the nonseverability clause "unprecedented" and a direct threat to the independence of the judiciary.
"We are confident that this Court will repudiate the Legislature's effort to improperly influence the outcome of this case and faithfully discharge its duty to decide this matter on the merits, fairly and impartially, and ignore the unwarranted intrusion by the other branches of government in the Court's decision-making process," the brief stated.
It continued: "In the event that this Court finds that (the new selection process) is unconstitutional, we are prepared to immediately bring suit challenging the validity of (the) nonseverability provision and seeking to preliminarily enjoin its operation so as to preserve the judicial appropriations for 2016 and 2017 pending a final adjudication."
Attorneys for the state have filed a motion to dismiss the lawsuit, arguing there has been no constitutional violation. District Judge Larry Hendricks, who is presiding over the case, has not said whether he will hear oral arguments on the case or issue a ruling based on the briefs.
Also representing Solomon in the case is the Brennan Center for Justice, a nonpartisan law and policy institute based at the New York University School of Law.
Matt Menendez, a Brennan Center attorney assigned to the case, said Thursday that he was attending a legal conference in Washington, D.C., where the Solomon case was a big topic of discussion.
"Everybody is talking about Kansas," Menendez said. "People are terrified that this could happen in their own state. This is being seen as a template where state courts around the country could come under attack. Nobody has seen anything like it."
An editorial last month in the Los Angeles Times called the situation an "unholy mess" and accused the Legislature of a kind of "heavy-handed politics that would do a tinhorn dictator proud."
Menendez, however, said the Kansas budget bill can be viewed as an example of a growing trend to politicize state court systems.
"We have seen growing attacks on courts, including arguments and efforts to change the judicial selection mechanism," he said. "The people of Kansas elected to grant the Supreme Court the power to administer the courts, and it's not up to the Legislature to change that."
What's at stake
Advocates on both sides of the issue say there is nothing trivial about the selection process. Chief judges, they say, have significant authority over district court budgets, allocation of court resources, hiring staff and sometimes assigning cases to the other judges.
Under a Kansas constitutional amendment approved by Kansas voters in 1972, the Supreme Court is given "general administrative authority over all courts in this state."
The idea, Irigonegaray said, was to create a "unified" court system that would have independent authority and would be insulated from interference by the legislative or executive branches.
Kansas Attorney General Derek Schmidt's office, which is defending the legislation, denies that the change in selection process violates that constitutional language.
"The Supreme Court is given authority to administer the judicial branch, just as the Governor is given authority to administer the executive branch. But in both cases, the Legislature retains legislative power under Article II to govern that administration," Schmidt's office wrote in June in a brief arguing to dismiss the lawsuit.
Senate Vice President Jeff King, R-Independence, who chairs the Senate Judiciary Committee, said during the 2015 session that the push for the change came from Wichita, where judges are elected in partisan races. King called it a matter of "local control," saying the decision about who should hold the power of a chief judge should be made by those closest to the constituents they serve.
Critics of the law have said it's part of a power struggle between liberal and conservative judges in Wichita who often have different legal perspectives on issues like abortion, gun rights and the rights of defendants in criminal cases.
Still others say it's part of long-simmering resentment toward the judicial branch by Republican legislators who think the Supreme Court overstepped its bounds in 2005 when it ordered the Legislature to increase funding for public schools. They also see the new law as a warning shot to the court, which will soon hear an appeal in a new school funding suit.
"It leads me to only one conclusion, and that is that the Legislature is attempting once again to hold a gun to the head of the courts in an attempt to intimidate the courts into ruling in the school finance case in a way that pleases some members of the Legislature," Rep. John Carmichael, D-Wichita, said in May when the House passed this year's funding bill.