Topeka 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.