(Syndicated to Kansas newspapers Dec. 28, 2015)
Round one of the “who’s in charge” bout between the Kansas Legislature and the Kansas Judiciary went to the Judiciary on a 7-0 vote last week when justices decided that lawmakers stepped across the constitutional “separation of powers” boundary by telling the court who will select chief judges of the state’s 31 judicial districts.
It was meddling in the operation of a unified judicial department that the constitution clearly doesn’t allow. So, that legislative plan to allow district court judges to vote among themselves to select their district leaders is out the window, though it did have some relatively nice-sounding “local control” aspects.
For most Kansans, the decision on who is the chief judge of their district court is not only not a big deal, but next time you’re after a bet you think you can win, ask your neighbor whom the chief judge is…and we’re betting that you’ll get no answer. Unless you are a lawyer, or another judge, or maybe the guy at the courthouse who assigns parking spaces, you have no reason to know who the chief is.
Which makes it an excellent proposition for a little Legislature-Judiciary boxing match to see who really runs things. The Legislature believed, and the governor signed into law, a bill back in 2014 that allows local judges to select their chief, with the public concept that local selections mean local control and that sounds nice, although that local control by legislative order taints the concept a bit, doesn’t it?
But we’ve just seen the first round of this Legislature-Judiciary scrap.
As big as that decision which lawmakers lost is the Legislature’s order that if it didn’t win on selection of chief judges, the appropriation to finance the court evaporates. That’s more than $100 million a year and the scrap over whether the Legislature can actually do that is Round 2.
The second round of the Legislature-Judiciary battle is just simmering now.
That second round is a provision in last year’s judicial budget bill that says if the provision for local selection of chief judges is for any reason knocked down, the judicial branch gets no budget. Hmmm…yes that non-severability clause provision sounds like a knockout punch, but if the court can knock down the first punch, can it also knock down that budget-killing second swing?
So things are getting interesting. This budget-killer of a provision means that essentially, if it is constitutional, the Supreme Court, the Court of Appeals and all those local district courts are out of business. No, the Legislature can’t kill the pay for those judges, but the provision could eliminate every dime spent on salaries of the aides and clerks and the people who actually make the courts work. It’s the folks who track cases and organize virtually everything that is done save for hammering the gavel down or telling jurors when the lunch break is.
Attorney General Derek Schmidt got a judge to delay that budget-elimination business until March 15, but we gotta wonder whether the Legislature, seeing what happened to the chief judge selection issue, is ready to give up and repeal that non-severability/budget provision.
Or…whether the legislators who want to make the Supreme Court heel when they whistle are going to wait for a court decision on that case, too.
The upside for waiting is the Supreme Court is likely to look a little over-protective of its power, and that isn’t a good attribute for those justices who stand who stand for retention votes next fall.
The downside? Makes you wonder whether those legislators who want to meddle in court business just can’t take a lesson, and after the court, what do they meddle in next?
This might—or if you work for the court might not—be interesting to watch…