Barbara Shelly

Gov. Sam Brownback and Kansas Legislature mount breathtaking assault on judges’ independence

Kansas Senate Vice President Jeff King says the Legislature is within its rights to tie court funding to the outcome of a pending case.
Kansas Senate Vice President Jeff King says the Legislature is within its rights to tie court funding to the outcome of a pending case. The Associated Press

Kansas judges have been the pariahs of state government ever since Gov. Sam Brownback and conservative lawmakers took over the reins of power.

Brownback has excoriated them in major speeches. With the help of conservative lawmakers, he has seized power for the governor to appoint appeals court judges. His goal is to gain sole control of the Supreme Court judicial selection process as well.

A couple of years ago, the Legislature ended a long-standing tradition of inviting the Supreme Court chief justice to deliver an annual address to the House and Senate. Legislators didn’t have time for it, House Speaker Ray Merrick said. This year, Chief Justice Lawton Nuss moved his speech to a courtroom.

The attacks and insults were just the foundation, it seems. Because now the governor and Legislature have upped the ante.

Brownback this month signed a law that funds the state’s court system for the next two years. At first blush that looks like good news. But the funding depends on the Kansas Supreme Court ruling the way the Legislature wants it to in a certain case. The wrong decision would prompt a “re-evaluating” of the entire judiciary budget, says Sen. Jeff King, vice president of the state Senate and chairman of the Judiciary Committee.

Wow. Just wow.

The Kansas Legislature is using funding for the court system as a club to coerce the state’s highest court into a ruling it finds favorable.

Lawyers in Kansas say the maneuver takes their breath away. A staffer at the Brennan Center for Justice in New York, which tracks threats to an independent judiciary, says he’s never seen anything like it. Anywhere.

Only in Kansas.

For most people, the disputed issue isn’t even all that exciting. Last year, legislators decided they want judges in district courts to decide who their chief judge should be. And they want district court budgets to be decided at the local level. Up until now, those two tasks have been the responsibility of the state Supreme Court.

Lawmakers feel strongly about local control of the courts, King told me. That’s kind of a hoot because the Legislature has spent the last few years trampling like a herd of buffalo over local control of schools, elections, taxing capabilities and gun regulations.

But let’s take King at his word and assume this really is about local control and not about rigging the system to elevate judges more in keeping with the conservative agenda. There’s still the matter of a constitutional amendment, passed by Kansas voters in 1972, that says “the Supreme Court shall have general administrative authority over all courts in this state.”

District judges around the state say they have no problem with the current method of selection. One of them, Judge Larry T. Solomon in Kingman County, has filed a lawsuit arguing that the Legislature’s change is unconstitutional. The case is in Shawnee County District Court right now, but everyone expects it eventually to make its way to the Supreme Court.

Hence, the threat, which has properly been called extortion.

King, a lawyer from Independence, Kan., said the Legislature was within its rights to tie judiciary funding to the outcome of a legal case that affects the management and budgeting of the court system.

I asked if he thought it would be appropriate to tie court funding to the outcome of a different sort of case, like school financing.

“In my opinion absolutely not,” King said. “I would agree, that’s a bridge too far.”

But Brownback and the Legislature already have crossed a line. It is fundamentally wrong to put judges in the position of having to weigh budgetary consequences when reviewing a case. Any case.

If Kansas conservatives and Gov. Brownback can’t recognize what they’ve done as an affront to government’s cherished system of checks and balances, they are already on the wrong side of King’s too-far bridge.

Reach Barbara Shelly at 816-234-4594 or Twitter: @bshelly.