Kansas Supreme Court Nixes Judge Selection Change, Putting Defunding Threat in Play

Dec 23, 2015

The Kansas Supreme Court has struck down a law that would have taken the power to select state district court judges away from Supreme Court justices.  Some fear the ruling inches the state toward a constitutional crisis.

Justices hearing the case, including Brownback appointee Caleb Stegall, ruled unanimously against a law stripping power from the Supreme Court to select chief judges to lead the state’s 31 district courts. Justices say the law ran afoul of the state constitution, which gives justices-- not the Kansas Legislature -- the authority to run the court system. But, earlier this year the Kansas Legislature passed another law, cutting off funding for the judiciary unless it upheld the judicial selection law as constitutional.

Alicia Bannon, at the Brennan Center for Justice, says it’s the first time a state legislature has tied judicial funding to the outcome of a particular court case.

“It’s really something unprecedented and deeply troubling,” says Bannon. “It gives the appearance at least, of the Legislature trying to put the thumb on the scales of justice.”

A temporary injunction that prevents the defunding provision from taking effect expires in mid-March.  And Bannon says Kansas will suffer if lawmakers make good on their threat to zero out the judiciary.

“The courts will have to shut down,” warns Bannon. “If a person needs a temporary protective order, they won’t be able to get one.  Criminal defendants, who are awaiting trial, may need to be released under the requirements of the speedy trial act.  There will be real human impacts as a result of this provision if it takes effect.” 

A judicial shutdown, though, seems unlikely. A lawsuit challenging the constitutionality of the Legislature’s quid pro quo is speeding through the court system. Kansas Attorney General Derek Schmidt has already made up his mind. He says the defunding provision “clearly” runs afoul of the constitution, and is urging the Legislature to withdrawal it.  

Frank Morris is KCUR’s national correspondent.  You can reach him at frank@kcur.org or on Twitter @FrankNewsman.