By Elaine Magliaro
Things just keep getting worse in the state of Kansas thanks to the policies and political actions of its governor Sam Brownback. Steve Benen of MSNBC said, “If the spectacular failures of Kansas Gov. Sam Brownback’s (R) economic experiment, and the ensuing budget crisis, were the only stories dominating the state, it would be more than enough to put the Sunflower State on national front pages.” He added that “recent developments in Kansas go much, much further.” A recent Kansas development that is getting quite a bit of press coverage is Brownback’s threat to defund the judiciary in his state if it rules against a law that he favors.
Mark Joseph Stern of Slate reported on Monday that Brownback signed a bill last Thursday “that threatens the entire state’s judiciary with destruction if it rules against a law he favors.” Stern said that the Kansas governor “has spent much of his tenure attempting to curb the state supreme court and consolidate power in the executive branch.” He added that “Thursday’s startling maneuver suggests the deeply conservative governor has no compunction about simply obliterating separation of powers when another branch of government gets in his way.”
According to Stern, the trouble with the judiciary “started in 2014, when the state supreme court ruled that the disparity between school funding in rich and poor districts violated the state constitution.” He said that the justices ordered the legislature to fix the problem. Stern added, “Soon after, the legislature passed an administrative law that stripped the supreme court of its authority to appoint local chief judges and set district court budgets. (Instead, district court judges—who are often quite conservative—were allowed to elect their own chief judge.)”
Arriving shortly after the school funding ruling, this law was widely seen as a retaliation against the court—and a warning. In their first ruling, the justices stopped short of declaring that the school system as a whole was constitutionally underfunded. But the court acknowledged that it would one day answer that question. And if the justices mandate more school funding, the legislature will have to raise taxes, a step few legislators are eager to take.
Stern said that the administrative law “was likely an effort to scare the court out of issuing a dramatic ruling in favor of greater school funding.” But Brownback and the legislature didn’t stop at that. They also reportedly “threatened the justices with blatantly political reforms, like subjecting them to recall elections, splitting the court in two, lowering the retirement age, and introducing partisan elections.”
John Eligon also noted in a New York Times article on Saturday that the fight between Brownback and the state’s judicial branch had escalated, “with the governor last week signing into law a bill that could strip state courts of their funding.”
The measure, at the end of a lengthy bill that allocated money for the judiciary this year, stipulates that if a state court strikes down a 2014 law that removed some powers from the State Supreme Court, the judiciary will lose its funding.
The 2014 law took the authority to appoint chief judges for the district courts away from the Supreme Court and gave it to the district courts themselves. It also deprived the state’s highest court of the right to set district court budgets. Critics said the law was an attempt by Mr. Brownback, a Republican, to stack the district courts with judges who may be more favorable to his policies.
Eligon said that the bill Brownback signed last Thursday “was related only to the judiciary. He said the Kansas governor “wanted to ensure that the courts would remain open while lawmakers sparred over the larger budget issues.” Lawmakers have been trying to figure out a way “to fill a $400 million shortfall, which will most likely require tax increases that Mr. Brownback and many in the conservative-dominated Legislature oppose.”
Eligon added that “in passing a separate budget bill to keep the third branch of government from shutting down, Republican lawmakers took the opportunity to insert language that would shield the 2014 law.”
“I’ve never seen anything like this,” said Matthew Menendez, counsel at the Brennan Center for Justice in New York, which is helping to represent a Kansas judge who is challenging the constitutionality of the 2014 law. “It seems pretty clear that these mechanisms have been an effort by the governor and the Legislature to try and get a court system that is more in line with their philosophy.”
Eligon said that Richard E. Levy, a constitutional law professor at the University of Kansas, “likened the measure in the judiciary budget bill to Congress’s passing a law outlawing abortion and then telling the judicial branch that it will lose its funding if it finds the law unconstitutional.” Levy was quoted as saying, “That kind of threat to the independence of the judiciary strikes me as invalid under the separation of powers principle.”
Courts Budget Intensifies Kansas Dispute Over Powers (New York Times)