(Syndicated to Kansas newspapers May 25, 2015)
Remember the separation of powers business you learned in school? You know, there’s the executive branch of government, the legislative branch of government and the judiciary, separate from the other two because there’s not supposed to be politics in the courts.
Well…there’s an interesting little provision in the Legislature’s yet-to-be passed bill that would finance the judiciary in Kansas for the next two years that has the Legislature dabble in the management of the Judiciary and maybe it is constitutional, maybe not.
Here’s the deal. The Legislature, dabbling, of course, tied the last two years’ judicial budget to a shakeup in court management that most people never heard about: Judges of the state’s 31 judicial districts will elect their local chief judge instead of having the judge appointed by the Chief Justice of the Kansas Supreme Court. Oh, and that chief judge in each of the districts can opt to take over the budget of each district, deciding which judge gets a new desk, more staff, whatever…
The judiciary, of course, wasn’t intrigued by this dabbling, seeing it as just the first baby step into injecting politics into the operation of the courts. There was opposition by the court to linking those organization policy changes and the budget for the courts in the same bill, but it happened.
And, the plot grew thicker when a district court judge from out west this spring filed a lawsuit asserting that the management issues that the Legislature inserted into the previous judicial budget bill were unconstitutional. That’s the appropriations/policy bill for the fiscal year which ends June 30.
Well, the new bill that finances court operations for the two years starting July 1 has that “non-severability clause,” too. Which means the policy issues in the nearly expired budget/policy bill will carry over into the next appropriation for the judiciary.
The new budget bill renews that non-severability clause, which means if the policy decisions the Legislature imposed on the court are found to be unconstitutional—by the courts—that because the policy issues and the budget are unseverable, the policy issues are thrown away and so is the appropriation to operate the courts.
Hmmm… Sounds a little like extortion, or at least a lesser included offense, doesn’t it?
So, if the dabbling with court management is found by the courts to be unconstitutional, there’s no budget for the courts. Any chance that might influence a court decision on the management provisions that the Legislature passed? Any chance that a judge hearing this case will wonder whether he/she can make his/her car payments if there is no judicial budget that provides their salary?
That’s just the first issue of the Legislature sticking its nose into the operation of a different branch of government.
And, of course, if that western Kansas judge wins his suit and lawmakers can’t essentially manage the courts, the issue then quickly turns to whether the non-severability clause cutting off funding for the courts works. That’s the bigger issue that will have wider ramifications on the public than judges deciding who runs their district court.
Of course, there’s a chance that the non-severability clause is unconstitutional for some reason other than just not feeling right to some grown-up Kansans. So, if the judge wins and the Legislature can’t dictate who manages the courts, that’s one thing, and it leads to the second step of this dance, whether a non-severability clause in itself is an unconstitutional overstep of the Legislature’s authority.
And, the courts will decide that one, too.