Archive for Wednesday, September 23, 2015

Court funding still in jeopardy, lawyers argue; questions raised about attorney general’s petition for injunction

September 23, 2015


— Lawyers representing four Kansas judges who are suing to prevent a shutdown of the state’s court system said Wednesday that they intend to move forward with their lawsuits, despite an injunction issued on Tuesday that was aimed at preventing courthouse doors from closing immediately.

In fact, they said they believe the injunction issued Tuesday is probably invalid because Attorney General Derek Schmidt, who sought the order, and Neosho County District Judge Daryl D. Ahlquist did not follow proper procedures.

"The injunction doesn’t strike down the provision (of this year's judicial budget) we’re challenging," said Matthew Menendez of the Brennan Center for Justice at New York University, one of the attorneys in the cases. "It merely delays the impact, if it even does that."

On Tuesday, Neosho County District Judge Daryl D. Ahlquist ordered a temporary injunction, preventing state officials from taking any action that would cut off funding for the courts.

Kansas Attorney General Derek Schmidt had asked for that order. In fact, both the petition seeking the injunction and the order granting it were time-stamped by the clerk of the court at the exact same time, 8:46 a.m. Tuesday, only 46 minutes after the courthouse opened for business.

There is nothing in the record that Schmidt's office released Tuesday indicating Judge Ahlquist heard any testimony or reviewed any evidence before granting the order.

Pedro Irigonegaray, a Topeka attorney representing one of the judges in the lawsuit, and Menendez said that's a problem because Kansas statutes require that petitions for an injunction either be verified or be accompanied by a sworn affidavit spelling out the facts behind the request, something that Schmidt's office did not provide.

"The Kansas Atty. Gen. failed to follow Kansas law, in that the petition filed is neither verified nor supported by an affidavit," Irigonegaray said in an email to reporters Wednesday.

Their statement was just the latest development in a long-running battle between the legislative and judicial branches of state government, a battle that is now threatening to shut down the state judicial system in its entirety.

Although the tension dates back years — at least to the 2005 Kansas Supreme Court school finance decision ordering the Legislature to increase public school funding — it reached a crescendo this year when lawmakers inserted a special provision into this year’s judicial budget bill that threatens to cut off funding for the courts.

That provision, known as a “nonseverability clause,” says that all funding for the courts will be made null and void if the courts overturn a 2014 law that changed the way chief judges in the district courts are chosen.

In early September, a judge in Shawnee County did just that, saying the change in selection procedure violated the separation of powers doctrine of the Kansas Constitution.

That put funding for the judicial branch in immediate jeopardy, although the order was immediately put on hold pending appeal to the Kansas Supreme Court. Right after that ruling, however, four district court judges, including Robert Fairchild of Douglas County, filed another suit, seeking to overturn the nonseverability clause as unconstitutional.

Schmidt has appealed the first case to the Kansas Supreme Court. But in a separate action, he filed his own lawsuit in Neosho County seeking to block enforcement of the nonseverability clause, at least until March 15, by which time the Kansas Legislature will have had time to address the issue.

Tuesday morning, Judge Ahlquist granted Schmidt’s request. But his order immediately sparked questions for several reasons, starting with the fact that Schmidt filed his motion in Neosho County, a rural county in the southeast corner of the state.

Most civil suits of that nature involving the state are filed in Shawnee County District Court in Topeka.

“Topeka has been the epicenter of the fight between the Legislature and the Judiciary,” Schmidt’s spokeswoman, Jennifer Rapp, said when asked why Neosho County was chosen. “We thought it better to get a fresh perspective on this issue that affects the entire state. Neosho County was suitable because it is away from Topeka.”

The order was also peculiar because, according to the time stamps placed on the documents by the clerk of the Neosho County District Court, the injunction was granted at the exact same time that Schmidt’s office filed a motion seeking the injunction, 8:46 a.m. Tuesday, Sept. 22.

Additionally, in seeking the injunction, Schmidt made some of the same arguments that the four judges made in their lawsuit seeking to overturn the nonseverability clause. Among them is the fact that the Kansas Constitution prohibits reducing judges’ salaries during their term in office.

Menendez said that admission by Schmidt’s office should be enough to prove the nonseverability clause is unconstitutional.

Meanwhile, Schmidt's appeal of the first decision striking down the change in how chief judges are selected is still pending before the Kansas Supreme Court. And the second lawsuit challenging the nonseverability clause of this year's judicial budget bill is still pending in Shawnee County District Court.

No hearing dates in either of those cases has been set.


Jerrie DeRose 2 years, 8 months ago

KS republicans are following the national trend. If an agency, organization, group, etc. doesn't kowtow to republican demands or dogma they threaten to defund, change the judicial laws, etc. to allow them to do what they want whether right or wrong. There was a time in KS when even republican governors used compromise, changed their actions if they were bad for Kansans, etc. But now its about extortion to get what they want. Whatever pride I had in being a Kansan went out the door with the Brownback administration and when my fellow Kansans lost all sense of direction and let them do whatever they want no matter the cost to the rest of us.

Michael Kort 2 years, 8 months ago

Well, the great experiment ? rolls on ! Now the Right Wing wants to reduce the American Model of the THREE BRANCHES OF GOVERNMENT DOWN TO TWO, BY DEFUNDING ONE OF THEM ! HITTLER OR MOUSALINE would be proud of them for such a big step in the consolidation of all powers unto themselves ! What do we expect from this bunch, that have threatened to arrest Federal agents enforcing any Federal gun laws in this state ? STALIN is probably applauding in his grave ! AND YET,.........WHAT IS THE BIGGEST EXPERIMENT IN KANSAS BUT THE EXPERAMENT OF NOT VOTING AND LEAVING IT UP TO THESE NUTS TO RUN THIS STATE !!!! A HORRIBLE MISTAKE !!!! NO BINOCULARS OR MICROSCOPES NEEDED TO SEE THIS ONE !!!!

Paul Miller 2 years, 8 months ago

And don't forget all the while telling everyone how bad democratic socialism is.

Michael Kort 2 years, 8 months ago

Foundation ? I think that they are working on the first floor framing !!!!! I agree that this is a fascist crew in Topeka that are making a naked power grab that they have no right under our form of government to have !

Larry Tucker 2 years, 8 months ago

Attorney General Derek Schmidt is from southeast Kansas and has many friends including Neosho County. If it doesn't work in the Topka Courts, then why not seek out one of those friends. All of this of course is to punish the court for their school funding ruling. Governor Brownback and his friends in the legislature want to be the ones to select judges and if they don't get their way, they will shut down the state's judicial system. Ha! This is a constitutional issue that will need to be settled by the voters in 2016. Hopefully voters will seek new leadership that will fund schools fairly, take care of the roads, provide health care for the poor and leave the courts alone!

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