Kris Kobach’s office says a House effort to stop him from using state money to pay fines for being found in contempt of court is illegal.
A top lawyer in the secretary of state’s office condemned the Republican-controlled House’s decision to put the prohibition in its most recent budget. In a letter to legislative leaders obtained by McClatchy, senior counsel Sue Becker raised potential problems with the budget requirement.
“(The) proviso is illegal and would require the State to expend significant resources in any futile attempt to defend it,” the letter says.
The budget move was offered by Rep. Russ Jennings, R-Lakin. He said last week the stipulation would prohibit using any state money for defense or penalties involved in a finding of a contempt of court by statewide elected officials. That would include the governor and the secretary of state.
The change passed, 103-16, and the House budget was later passed. It is not known whether the budget line will survive negotiations between the House and Senate.
"I'm sick of reading about our state level, statewide elected official being in court for contempt," Jennings said on Friday. "...We're not paying the bill for him."
The judge ordered Kobach to pay attorney fees for the plaintiffs in the case. He could face additional fines after the judge makes her final ruling in the overall case. Kobach's office said that it plans to appeal the contempt order.
Kobach is running to become the next governor of Kansas.
In the letter, Kobach’s office contends he was sued in his official capacity, but not personally. They also argue, citing case law, that “by defending the State’s law, he is personally ‘shielded from liability for civil damages.'”
“It would inevitably lead to further litigation — litigation the State would lose,” the letter says.
Rep. John Carmichael, D-Wichita, said that while it is generally true that the state is financially liable in lawsuits brought against state officers in their official capacity, a critical distinction is being overlooked.
“A contempt citation, in this circumstance, is personal to the contemptor, i.e., Secretary Kobach. It wasn’t what the state of Kansas did that caused the secretary to find himself being held in contempt. It was what Kris Kobach, attorney at law, did. And what he did was deliberately flaunt the orders of the court,” Carmichael said.