On Wednesday night, a district judge in Kansas struck down a 2014 law that stripped the state Supreme Court of some of its administrative powers. The ruling has set off a bizarre constitutional power struggle between the Republican-controlled legislature and the state Supreme Court. At stake is whether the Kansas court system will lose its funding and shut down.
Last year, the Kansas legislature passed a law that took away the top court's authority to appoint chief judges to the state's 31 judicial districts—a policy change Democrats believe was retribution for an ongoing dispute over school funding between the Supreme Court and the legislature. (Mother Jones reported on the standoff this spring.) When the legislature passed a two-year budget for the court system earlier this year, it inserted a clause stipulating that if a court ever struck down the 2014 administrative powers law, funding for the entire court system would be "null and void." Last night, that's what the judge did.
The Republican legislature has threatened to destroy the state's court system unless the GOP can strip the power the judiciary has to appoint judges and give that power to lawmakers instead. The judiciary called the legislature's bluff.
Kansas Attorney General Derek Schmidt warned that last night's decision “could effectively and immediately shut off all funding for the judicial branch.” That would lead to chaos. As Pedro Irigonegaray, an attorney for the Kansas judge who brought the legal challenge against the administrative law, put it, “Without funding, our state courts would close, criminal cases would not be prosecuted, civil matters would be put on hold, real estate could not be bought or sold, adoptions could not be completed."
Both parties in the case have agreed to ask that Wednesday's ruling remain on hold until it can be appealed to the state Supreme Court, so that there is a functioning court to hear the appeal. On Thursday, a judge granted the stay. Meanwhile, lawyers involved in the case and advocates for judicial independence are preparing a legal challenge to the clause of the judicial budget that withholds court funding. Sometime in the next few months, the state Supreme Court is likely to rule on whether the legislature has the right to strip the Supreme Court of its administrative authority, and whether it can make funding for the courts contingent on the outcome of a court case.
“We have never seen a law like this before," Randolph Sherman, a lawyer involved in fighting the administrative law, said in a statement, referring to the self-destruct mechanism in the judicial budget. "[I]t is imperative that we stop it before it throws the state into a constitutional crisis.”
So depending on the outcome, Kansas may or may not have courts. Amazing.
Imagine if a Republican Congress and Republican president passed a law that said the President could no longer appoint federal court or Supreme Court judges, and that instead they would be appointed by the Speaker of the House and approved by the Senate, and that the law also said that if the Supreme Court struck the law down, that Congress would automatically end all funding for the federal court system.
That's the kind of thing you find in a dictatorship, not a representative, Constitutional democracy. But here we are.
The most broken state in the Union continues to stay broken.