The Court Case That Could Shut Down Kansas's Courts

A GOP law on judicial appointments has been thrown out, and now it’s the judiciary itself that hangs in the balance.

What began as merely a fiscal mess in Kansas has become a full-blown judicial crisis.

On Wednesday, a district court ruled against the state, and threw out a 2014 law passed by Republicans that took the power of appointing chief judges away from the Kansas Supreme Court and handed it to local judges. But that rather simple question of judicial administration could have further-reaching consequences, thanks to a provision in a second law passed by the legislature earlier this spring that would cut off funding for the state’s entire court system, if the 2014 law was struck down.

Kansas officials were so worried about the consequences of the court’s decision that the state’s attorney general, Derek Schmidt, successfully filed to have the ruling stayed until the courts rule on an appeal and the validity of the 2015 law.

My immediate concern ... is that the court does not appear to have decided the validity of a ‘nonseverability’ clause contained in a later statute, which means today’s decision could effectively and immediately shut off all funding for the judicial branch of state government.

It is critical to keep the state judiciary operating.

We’ve previously covered Kansas’s financial struggles, as a Republican experiment in conservative economic policy failed spectacularly, leaving the state deeply in the red. The fiscal crisis divided and, for a time, paralyzed the GOP-controlled legislature before lawmakers reluctantly agreed to nearly $400 million in sales taxes earlier this year.

The current dispute flows from the budget battle: Ever since the state Supreme Court in 2014 ordered the legislature to increase funding for education, Governor Sam Brownback and his allies in Topeka have sought to wrest power over appointments from the Supreme Court and make it easier to replace judges. (A majority of the justices on the high court were appointed by Brownback’s Democratic predecessor, Kathleen Sebelius.)

But critics of the legislature say Republican lawmakers have gone way too far, particularly when they crafted what one lawyer called “a draconian” contingency plan that sought to bully the courts into siding with them. “I think a fair word is extortion,” said Pedro Irigonegaray, a Kansas attorney representing Judge Larry Solomon, the chief judge who challenged the 2014 law on judicial appointments. “If you don’t do this, your salary is gone. That type of strong-arm technique did not happen by accident.” He and other lawyers have now filed a lawsuit challenging the second law in court. In a phone interview, Irigonegaray reminded me that he was born in Havana, Cuba. “This is the type of thing that we might see in a country that is undemocratic,” he said. “But in America, we deserve better.”

To Jeff King, the vice president of the Kansas Senate, this is all much hyperventilation about nothing. “There is a long way to go in the process,” he told me. While Irigonegaray portrayed the 2015 law as vindictive, King said it merely extended the “nonseverability” of the 2014 measure—meaning that the law had to be considered in a unified way, which is why the judiciary’s budget came into play. Because the legal rulings and appeals would take many months, he said, the legislature had plenty of time to evaluate funding for the courts if the 2014 law was thrown. And he insisted that lawmakers would “absolutely, no question” take action to restore the judiciary in that event. “There is no desire to strike the funding of the judicial branch,” King said. “No one wants that. It’s not going to happen.”

As for Irigonegaray, King said the well-known lawyer had a tendency “to sensationalize the mundane.” “Pedro likes to make controversy where none exists,” he said. King portrayed the broader fight over judicial appointments as one over local control: Republicans, he said, actually approved a higher overall budget for the courts, but they wanted district judges and county officials to have more say over how it was spent.

For now, Kansas’s courts remain open. Crimes will be tried, lawsuits will be heard, rulings will be heard. But King’s call for calm seems a bit overstated. For one, the state legislature just finished a spring session that, despite the complete one-party control of the government, was described as the most dysfunctional in decades. And the consequences of the court’s ruling on Wednesday were so worrisome that not only did the state’s Republican attorney general feel compelled to seek an emergency injunction, but he was joined by the lawyers who won the case to begin with. Had the stay not been granted, Irigonegaray said, “an independent branch of government would have ceased to exist. That’s how dangerous this situation is.”