Schmidt steps aside from judicial funding case; asks Supreme Court to do the same in a related case

? Kansas Attorney General Derek Schmidt on Friday said he would recuse his office from handling one lawsuit that threatens to cut off all funding for the Kansas judicial system, and he called on the Kansas Supreme Court to do the same in another.

But Schmidt offered no suggestions about who he thinks would be qualified to handle the cases.

In a statement released late Friday, Schmidt called for “humility and restraint” by all parties in the cases, saying: “This conflict does not represent traditional Kansas values and is deeply distressing and regrettably divisive.”

The cases stem from appropriations bills that Kansas lawmakers passed in 2014 and 2015 dealing exclusively with the judicial branch.

The 2014 bill also included a provision that changes the way chief judges of district courts are selected.

Previously, they had been chosen by the Supreme Court, which under the Kansas Constitution has “general administrative authority over all courts in this state.” The 2014 bill changed that method so that chief judges are now elected by the other judges within the district.

That change was quickly challenged in court by Judge Larry T. Solomon, chief judge in the 31st Judicial District in Kingman County.

This year, lawmakers passed a two-year funding bill for the judiciary but included a “nonseverability” clause that tied back to the 2014 bill. It said if the judicial selection provision of the 2014 bill is declared invalid, then all portions of this year’s bill, including all funding for the courts, would also become null and void.

Earlier this month, a Shawnee County judge ruled in Solomon’s favor. But his order was quickly put on hold pending an appeal, calming fears for the time being that courthouse doors across the state would soon be closed.

Soon after that, Solomon and three other district court judges, including Douglas County District Judge Robert Fairchild, filed a second lawsuit, challenging the constitutionality of this year’s nonseverability clause.

On Friday, Schmidt announced that he had filed an official notice of appeal in Solomon’s case. Under normal procedures, that would put the seven justices of the Supreme Court in the awkward position of deciding a case in which they themselves have a vested personal interest — notably, the authority of their own offices and funding for their own jobs.

Chief Justice Lawton Nuss, during a rare news conference with reporters, said courts are sometimes called upon to decide cases about the court system itself, and they take those cases under what he called a “doctrine of necessity.”

For that reason, Schmidt called on the Supreme Court to recuse itself from that case. And at the very least, he said, Nuss and others who were vocally critical of the bill as it was being debated in 2014 should recuse themselves.

Furthermore, Schmidt said he would recuse himself from the second lawsuit filed by four judges. That’s because Schmidt’s office is already representing one of those judges, Jeff Jack of Labette County, in an unrelated case in which they are both codefendants. Schmidt did not provide details of that lawsuit.

In his statement Friday, Schmidt called both cases symptoms of an ongoing tension between the legislative and judicial branches of state government.

“The Legislature’s defenders believe the courts have failed to respect the Legislature’s power of the purse,” Schmidt said in an apparent reference to recent school finance lawsuits, “while the Judiciary’s defenders believe the Legislature has failed to respect the courts’ power to independently decide cases brought before them.”

“As attorney general, I swore an oath to uphold the Kansas Constitution which, of course, insists upon both legislative control of the purse strings and judicial independence,” Schmidt said. “From the standpoint of the attorney general’s office, which regularly works with both the Legislature and the Judiciary on many matters important to Kansans, I urge a healthy dose of humility and restraint by all involved in an effort to ease tensions and improve inter-branch cooperation.”

There was no immediate response from the Supreme Court justices on whether they will recuse themselves from the cases as well.