Kansas Republicans Are Blackmailing The Kansas Supreme Court
Kansas Republicans are threatening to cut off funding for the entire state judicial system if the state's Supreme Court strikes down a law the legislature likes.
Backed by the state’s Republican controlled legislature, Kansas Governor Sam Brownback has signed a bill that looks for all the world like a blatant attempt to blackmail the Kansas Supreme Court;
Kanas Gov. Sam Brownback has signed legislation that would eliminate funding for the state’s courts if they overturn a contentious law passed last year, a move experts described as an unprecedented display of legislative power.
The 2014 law, pushed by Republicans, stripped the Kansas Supreme Court of the power to appoint chief judges for the lower courts. A Kansas judge has sued to block it. Legal experts said the law signed late Thursday is likely the first instance of lawmakers tying a judicial budget to the outcome of a legal case.
The budget language will almost certainly be challenged in court, but activists warned that the effects of triggering the clause could be far-reaching. It’s unclear whether or how long the courts could operate without a budget in place. Courts would be unable to sign off on search and arrest warrants, issue protective orders or preside over constitutionally-mandated first appearances for people arrested for crimes, they said.
The 2014 law gave local courts the authority to select their own chief judges. The lawsuit pending in Shawnee County District Court, in northeastern Kansas, says the 2014 law violates a provision of the state constitution giving the Kansas Supreme Court “general administrative authority over all courts in the state.”
The bill signed by Gov. Brownback, a Republican, says that if that 2014 law is “stayed or is held to be invalid or unconstitutional,” the other provisions including funding for the courts are “declared to be null and void.”
Republican lawmakers denied any link between the language, known in legislative parlance as a non-severability clause, and the pending lawsuit.
Democrats, meanwhile, said the legislation is part of a vendetta against the courts for a series of rulings on education funding.
The Kansas Supreme Court has ruled twice that public-school funding was unconstitutionally inadequate. Soon after the most recent ruling, the legislature passed the law limiting the administrative authority of the court.
A spokeswoman for the Kansas courts said she could not comment, given the ongoing litigation.
Slate’s Mark Joseph Stein has more detail:
The Kansas trouble started in 2014, when the state supreme court ruled that the disparity between school funding in rich and poor districts violated the state constitution. The justices ordered the legislature to fix the problem. Soon after, the legislature passed an administrative law that stripped the supreme court of its authority to appoint local chief judges and set district court budgets. (Instead, district court judges—who are often quite conservative—were allowed to elect their own chief judge.)
Arriving shortly after the school funding ruling, this law was widely seen as a retaliation against the court—and a warning. In their first ruling, the justices stopped short of declaring that the school system as a whole was constitutionally underfunded. But the court acknowledged that it would one day answer that question. And if the justices mandate more school funding, the legislature will have to raise taxes, a step few legislators are eager to take.
The administrative law, then, was likely an effort to scare the court out of issuing a dramatic ruling in favor of greater school funding. Just in case the court didn’t get the message, Brownback and the legislature have also threatened the justices with blatantly political reforms, like subjecting them to recall elections, splitting the court in two, lowering the retirement age, and introducing partisan elections. (Currently, a nominating commission creates a pool of candidates, and the governor selects from that bunch.)
Now the court has an opportunity to strike down the administrative law, which probably violates the state constitution. And that’s where Brownback’s insane new law comes in. The law declares that if the supreme court strikes down the administrative law, the entire state judiciary will lose its funding. Brownback and the legislature are essentially bullying the judiciary: Uphold our law or cease to exist.
I’m not in the least bit versed in Kansas law, so I’m not going to comment much on the legal issues involved her, which include not only the legality of this effort to defund the judiciary if it rules contrary to the way the legislature likes, the legality of the law that stripped the Supreme Court of its power to appoint local Chief Judges, or the Court rulings regarding school funding that apparently started off this whole fight. At the very least, though, it strikes me that there are some serious separation of powers issued raised by an effort by the political branches of government to hold the judiciary hostage by threatening to cut off its funding if the Justices fail to rule in a manner that the legislature wants it to. The Kansas Constitution appears to give the judicial branch the same sort of autonomy that the Judicial Branch enjoys in the Federal system, for example. so what the Kansas legislature is doing here would be akin to, say, Congress passing a law that said that funding for the judiciary would be contingent upon the Supreme Court ruling that states have a right to ban same-sex marriage. On the surface at least, it seems to me that there would be a fairly strong argument that this is unconstitutional and that, therefore, the newly passed bill in Kansas should be unconstitutional.
Leaving the legal issues aside, though, there is something completely unseemly about what Kansas Republicans are doing here. The legislature and Governor have basically told the seven Justices on the Kansas Supreme Court that if they strike down the administrative law that changed how Chief Judges are selected then they will endanger funding not only for themselves but also for every other officer and employee of the judiciary in the entire state, from the Chief Justice himself all the way down to the clerks in local courts who process paperwork. How exactly can anyone expect the Justices to not take that fact into account when ruling on the case before them? If they rule that the law is unconstitutional, they set off a constitutional confrontation with the legislature that will cause judicial chaos at all levels. Even if that conflict is ultimately resolved in favor of the judiciary, damage will be done. If they end up h0lding that the law is constitutional, then how can anyone believe that the holding is based on an honest assessment of the legal issues rather than a reaction to legislative blackmail? And if it works with this seemingly minor administrative law, then what’s to stop the legislature from doing it again with something far more controversial?
These are the kind of things you expect to see in a banana republic, not in one of the states of the United States, and the worst thing about it is that the voters of Kansas put these people in power.
With all due respect, Mr. Mataconis. Many of us on the left and center-left have been saying for years that the GOP has no interest in governing – actual governing.
They’re nihilistic, through and through.
And people like yourself and Dr. Joyner keep making excuses for their actions.
First of all, your comments are off topic to the subject matter of the post.
Second, I’m not sure what excuses you think I’ve made because they don’t exist. Now, if you wish to discuss that at another time, we can do so.
Kansas IS a banana republic Doug. What amazes me about things like this is that it never seems to occur to conservatives that 2nd Amendment solutions can apply to them too.
“Blank” them.
All of them.
The good people of Kansas put these cranks into power so let them deal with the consequences.
I don’t even blame the elderly or religious conservatives for this mess. Where was the business community? The so called civic leaders? They were A-OK with this as long as they got their thirty pieces of silver.
Well, I hope the judges rule appropriately and let the chips fall where they may.
If I were a Kansas Supreme Court judge, I’d rule the law unconstitutional, let them totally defund the judiciary, close all the courthouses, and just wait.
First effect: police won’t be able to do anything with criminals they catch, and after holding them for a few days without any action, will probably have to release them. Local law-and-order Republicans aren’t going to like that.
Second effect. no real estate transactions will get done, period. Expect a LOT of squawking from the business community and real estate lawyers.
Third effect….well, you can game this out. Brownback needs to have his nose rubbed so hard in his own mess that his nose falls off.
@Doug Mataconis:
How is it off-topic when the subject of the post is Republican indifference to the essentials of government to point out, as @Eddie does, that this is hardly a new phenomenon and that Democrats have been pointing it out for years?
This is not just Brownback with some wild hair up his rear end, this is Tea Party fanaticism perfectly in line with Republican indifference to actual government. There is a clear line of connection between the strong-arm threats of national Republicans down to the actions of Kansas Republicans.
You may not like that connection being made, but it is hardly off-topic.
The state supreme court and Brownback deserve each other. They are mirror images of each other, with the justices being left-wing hacks, and Brownback being a right-wing hack.
The Kansas Supreme Court has been meddling in politics for a long time, such as when it blatantly rewrote state election law in 2014 to allow the Democratic candidate to withdraw from the U.S. Senate race against Pat Roberts, in a failed effort to ensure that a Democratic-backed independent could win without splitting the anti-GOP vote (that independent lost anyway, even though he was a thoughtful moderate).
Their school finance decision essentially fabricated law, even if the result might have been congenial from a public policy perspective (although Kansas’s schools were already funded better than schools in many neighboring states).
@MikeSJ:
That’s the great thing about a Republican or a Libertarian: their alleged principles are always for sale. If you offered to cut a Republican’s taxes by 10% they’d happily look the other way as concentration camps were erected and their neighbors were rounded up.
This is an absolutely appalling action by Brownback and the bloody-minded fools who’ve sat back and watched him hurt the people of Kansas in the name of ideology.
The whole separations of powers idea depends on a certain amount of agreement and cooperation between the branches or the whole idea falls apart. Trying to think of something similar at the Federal level. What if the executive branch, specifically the Treasury Dept, refuses to actually pay the salaries of Senators, Representatives, and staff (to say nothing of power and water) of Congress? How can Congress make them? Or the Supreme Court? You can have all the Constitutional rules, laws, etc you want but at the end of the day, they are just paper. It still requires belief in the nation’s bones that people will behave in a certain way.
Meanwhile, in another experiment in conservative governance (or ‘non’ if you prefer), we have
Louisiana GOPers In Fiscal Mess Beg Grover Norquist To Relax No Tax Pledge
“The state faces an enormous $1.6 billion budget shortfall, a reality Jindal blames on falling oil revenues. However, he is one of a number of GOP governors, many of them considering presidential runs, who have found themselves with budget crises due to their unwillingness to raise tax revenue. Jindal’s anti-tax orthodoxy has limited legislators’ options for balancing the state’s budget and means the state is facing the prospect of drastic cuts in key areas like higher education.”
Why is it ok for the legislature to exercise the power of the purse in order to check the executive, but not the judiciary?
@Gavrilo:
Because we do not threaten judges in order to force a favorable decision. That’s Mexico, maybe, or Pakistan, it is not the United States of America.
Doesn’t this law violate Article III Section 1 of the federal constitution (“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”)?
@Gavrilo: If you can’t tell the difference between not funding a specific executive action and an entire branch of gov’t, I’m afraid I can’t help you. (and for the record, the GOP has tried that a time or 2. Didn’t work out so well then, won’t now)
@Stormy Dragon: That applies to federal courts only I suspect.
@Stormy Dragon:
The Kansas State Constituion has a similar clause, Article III Section 13: “The justices of the supreme court and judges of the district courts shall receive for their services such compensation as may be provided by law, which shall not be diminished during their terms of office, unless by general law applicable to all salaried officers of the state.”
There is a good reason that people are fleeing Kansas.
The great experiment of Republican governing taking place in Kansas is an abject failure.
I agree with Grumpy (careful – she’s about to start typing in Latin) the courts should call Brownback’s bluff and let him defund them.
But it’s not just Kansas. Legislators in Louisiana are begging Grover Norquist to let them raise taxes. Really? Seriously? They have to get permission from Norquist to raise taxes? And this is one of the the biggest Red State Welfare Queens that there is.
http://www.nola.com/politics/index.ssf/2015/06/louisiana_legislators_grover_n.html#incart_most-comments
New Jersey. Wisconsin. Minnesota. Everywhere the Republican economic theories have been tested they have failed.
@michael reynolds:
His first point may have merit.
Since I probably criticize Republicans around here far more than I do Democrats, his second point is not relevant.
I think this is wrong. This virulent strain of right wing radicalism does want to govern. They just don’t want anybody to get in their way in imposing their will.
For some reason this action send shivers down my back. I am usually blasé about these shenanigans because they usually blow over and things go back to normal. But I can easily imagine this as a first step to fascism. Made me want to go back and reread “Seven Days in May”.
Are the Kansas Republicans taking a page out of the Black Panther playbook?
https://www.youtube.com/watch?v=OUQIYLQ2rbk
(bad sound only lasts 11 seconds)
@Doug Mataconis:
You do frequently criticize Republicans, no question.
@michael reynolds:
But often as part of a “both sides do it” tirade….
Another attempt by Republicans to control the judiciary is going forward in Wisconsin, see
http://tinyurl.com/pf2zzvy
It must be in the ALEC playbook.
A friend of mine said the best day in her life was when she moved from her birthplace in Kansas to Oregon.
This is the logical out come of Republicans basing their platform on outdated and unrealistic economic theories such as the Laffer curve. This lled to them to promising their constiutuents fantasy. Well now reality is catching up with fantasy, the way it did for Republicans in California.The Kansas Republicans can’t pay their bills and can’t pay for their government, because the revenue that was supposed to magically come from tax cuts didn’t come. The solution? Not to face reality and raise taxes but to abandon their constiutional obligations, of course. Because:
1. conservative economics cannot fail
2. If conservative economics fails, don’t acknowledge failure, but double down on the crazy.
Conservatives have been getting away with this for decades. Seems that time is over.
The people of Kansas, however, just finished voting in this government, so they deserve every bit of this dysfunction.Serves them right.
@Stormy Dragon: That’s judges in federal courts, not state. (There’s also this delightful wrangle about Amendment III judges and non-Amendment III judges and it’s a nice little mess that SCOTUS has tried to stay away from as far as possible.)
@C. Clavin: If I’m going to be typing in Latin, I can think of no better than Cicero’s opening against Cataline:
(When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?)
@grumpy realist
There’s also divorces to consider, not to mention bankruptcies, foreclosures, wills/inheritances, medical proxies, etc. Marriages too – justice of the peace and all that. People don’t realize how much of their lives are touched by the courts because they tend to be infrequent, bigger-ticket items. They’re about to get a harsh lesson.
I say do it, Kansas. Do it!!! Rule against and close up shop. Flip ’em off on the way out the door and have an awesome summer vacation while the hammer comes down on the morons. Whatever happened to not giving in to terrorists’ demands?
And in related news, the Magna Carta turns eight hundred years old this year. Perhaps it’ll survive Gov Brownback.
While I feel sorry for the sane people there I do think if the voters want The Crazy, give it to them.
I just wonder if these people really believe this nonsense? Did Brownback and the legislators actually think they’d get more money if they cut taxes? Really? Or is this just a con they’re running on the rubes?
Sometimes I think they just can’t state what they really want – a US state that exists as a pre New Deal structure. No Social Security, No Medicare, No state funded colleges.
People would never agree to this hence the back door approach to cutting taxes while pretending to believe free money will fall from the sky.
@MikeSJ: I’ve been following what’s been going on in Greece and would say the same there, except in their case the nuts are on the left.
The idea of negotiations is that you hope during the course of negotiations you take small steps to increase the other side’s trust in you.
Greece has been acting like a two-year-old in a tantrum. If they had made a hard, good-faith attempt to deal with tax evasion and the corruption everyone admits exist (bringing in the tax-inspectors Germany offered, for example), they would probably have built up enough goodwill that their complaints about pension limits etc. would have at least been listened to. As it is, they’re acting like the deadbeat adult son who slouches around the house, plays video games 12 hours a day, and whines that it’s his “right” for his parents to support him forever.
Yeesh.
The KS constitution gives the Judiciary no say over taxing and spending. If the Judiciary decides that the amount spent on schools should be X; and the Legislature decides it should be Y; and Y<X, then the Judiciary has no power to impose its will on the Legislature. The Legislature is responsible to the people. Should the people decide that school funding should indeed be at level X, is to vote in the next election. If the party arguing for Y wins, then the people have indicated that they agree with the legislature more than with the Judiciary.
@grumpy realist:
Yeah, what was the Cataline conspiracy about any way?
I posted this just to plug the wonderful history podcast , “The History of Rome”, by Micheal Duncan. A nice audio history of Rome , from founding till the fall of the last emperor of the western Empire.
Come to think of it , though, there may be some connection between the crackup of Kansas and the fall of the Roman Empire, somehow…
@Jimbo OPKS: Dude, if the Kansas constitution says anything about “equal opportunity”, that’s enough to force a lot of balancing in school funding. Standard argument, used in many other states.
@Jimbo OPKS: Is that a legal opinion or what you feel is right? I don’t believe the U. S. Constitution explicitly gives the courts any jurisdiction over taxes and spending. But if a plaintiff shows up and says I’m harmed because that spending bill violates the Constitution and I want my due process, are the courts to say, “Sorry, nothing to do with us.”?
A majority of the voters of Kansas wanted this, so they’re getting what they wanted.
Right now Kansas is out-to-lunch.
This is why I have never once used the expression “wisdom of The People.” Sometimes The People collectively, through a plebiscite, demonstrate that they have wisdom, sometimes they do not. There is no such thing as an enduring “wisdom of The People.” It comes and goes.
@EddieInCA: No one at this blog has done more to point out stupid behavior by Republicans than Doug. In fact almost every single post on the topic, and there are typically several per day, is posted by Doug. Just because he doesn’t care for the Democrats does not mean he supports Team Red.
@Ben Wolf:
Well, to be fair, no one else on this blog posts with anything near the productivity of Doug.
And given the majority of posts are his, and that the GOP provides a cornucopia of idiot fodder for posting simple math says Doug would post on most of it.
After all, you can only push so many silly Hillary conspiracies per day.
1. The judiciary is not divine. There is no reason it, as a branch of government, should not be subject to the same checks and balances which apply to every other branch of government. That doesn’t justify the actions of Kansas Republicans, which seem nihilisticly reckless, but genuflecting before the judiciary, which a lot of liberals have done as the courts have come to be used as a way to advance and defend liberal policies which could not win at the ballot box, is ultimately disasterous.
2. I would agree that the “wisdom” of the people can be exaggerated but this, and most other problems today, is more due to the failures of our elites. Where is the Kansas business community? Why did it take until past the last minute for the business community as a whole to speak up during the debt ceiling fiasco?
Mike
This suddenly resembles a boring episode of Game of Thrones.
@MBunge:
No, it’s is not. It’s its own separate branch and entitled to the same respect we give the Legislative and Executive branches. It should have checks on it, including the power of the purse. Properly used, that power helps the Judiciary be the size it needs to do its job, a sword that trims unnecessary fat and grants protection to grow. Abused (like as being threatened), it is a sword at the throat, do what I say or die. Notice it wasn’t “reduce” or “decrease”, it was “eliminate”. Where’s the check on that, that they are allowed to basically say “Sorry, we’ve decided to effectively kill your section of our government till 2017. You’re SOL, buddy. Toodles!”
That’s not check/balances, that’s not even blackmail, that’s a jack. That’s a straight-up threat and a power grab.
@KM: It’s also an acutely stupid action, because Brownback and his coterie of nitwits have now managed to piss off 99% of the legal profession in Kansas. People in law really, really don’t like this type of attempted power grab.
The reason the business community hasn’t gotten involved yet is probably because they couldn’t believe that Brownback could be as stupid as he has shown himself to be.
@MBunge:
I’m not big on expecting “elites” to explain to us what should be perfectly clear to us.
Voters are responsible for electing legislators and governors who do this stuff. Voters constantly hide behind “they’re all crooks” and “both sides do it” and deny any responsibility for dysfunction in government. Well if you elect people who have no interest in governing responsibly this is what you get.
@Tillman:
Will Brownback burn his daughter at the stake in the hopes of generating revenue from tax cuts???
@C. Clavin: I mentioned it before in another thread, but geez Louise, you’d think all the people complaining about the latest Game of Thrones shocker had never heard of Iphigenia….
@grumpy realist: “Second effect. no real estate transactions will get done, period. Expect a LOT of squawking from the business community and real estate lawyers.”
Oh, yeah. And if the judges announce that they will be………deliberate about taking care of the backlog, that would do more.
In fact, could the judges refuse jurisdiction over things happening while they were shut down?
Think of the immediate 100% cut in parking and traffic ticket revenue.
@grumpy realist:
I have to cop to ignorance on Iphigenia as well….but now that I have learned something today I can go home.
@michael reynolds: “How is it off-topic when the subject of the post is Republican indifference to the essentials of government to point out, as @Eddie does, that this is hardly a new phenomenon and that Democrats have been pointing it out for years?”
I’m seconding this.
Doug, how is what they are doing here any departure from the clear trend which the GOP has been pulling for years now, which is the politics of nihilistic destruction?
@Gavrilo: “Why is it ok for the legislature to exercise the power of the purse in order to check the executive, but not the judiciary?”
The traditional rule has been that the legislature can set the laws, and the overarching jurisdiction questions, but that they can’t dictate decisions. For obvious separation of powers reasons.
@KM: “There’s also divorces to consider, not to mention bankruptcies, foreclosures, wills/inheritances, medical proxies, etc. Marriages too – justice of the peace and all that. People don’t realize how much of their lives are touched by the courts because they tend to be infrequent, bigger-ticket items. They’re about to get a harsh lesson.
I say do it, Kansas. Do it!!! Rule against and close up shop. Flip ‘em off on the way ”
You are soooo, sooooooo delightfully cruel.
@grumpy realist: “Greece has been acting like a two-year-old in a tantrum.”
No, they’ve been acting like people who don’t have the money, and are trying to make others realize it.
And before you go off on Greek corruption, do you actually think that the big, rich European banks didn’t know what was going on?
@Jimbo OPKS: “The KS constitution gives the Judiciary no say over taxing and spending. ”
Go back and read. The KS constitution makes certain statements about how the schools are to be run, and their supreme court ruled that the government was not doing that. The legislature had a set of options, and decided that ‘F*ck you!’ was the best one.
@al-Ameda: “A majority of the voters of Kansas wanted this, so they’re getting what they wanted.”
Probably a very small majority, with gerrymandering and voter suppression thrown on as well.
@MBunge: “The judiciary is not divine. There is no reason it, as a branch of government, should not be subject to the same checks and balances which apply to every other branch of government.”
Which has nothing to do with the current case.
@Barry: The fact is: the EU has the money and the Greeks don’t. Which means that the Greeks, in order to obtain more money to prop up their system, are going to have to negotiate with the EU.
The first rule of negotiation is don’t piss off the opposite side to the point that they storm away from the table and refuse to play, period. Greece has managed to tick off sufficient people on the other side (and then turning around and saying “if we don’t get what we want, Grexit!”) that the rest of the EU is now saying: “go ahead. Leave. Go Grexit. See if we care.”
Whether the banks are corrupt or not is not the point (and yes, I think they are, and should have been forced to take a much bigger haircut on their loans to Greece before handing the mess over to be backstopped by the poor taxpayers.) What’s the point is that Greece could have put itself in a much better bargaining position if it had made a good faith attempt to deal with the tax evasion and the corruption, rather than this combination of threats, insults, backtracking on promises, and wild-ass attempts to drag WWII reparations into the mess. For a government with a Finance Minister supposedly an “expert” in game theory. Greece has managed to screw its negotiations up considerably.
@Barry:
Flatterer. ^.~
I believe in irony and karma. “John Marshall has made his decision, now let him enforce it!” Considering the horrible Trail of Tears that little bit of political nonsense created ended in Kansas, it’s completely ironic that we can say “Brownback has made his decision; now let him deal with the fallout of enforcing it!” Elections and political rhetoric have tangible consequences; this is karma coming home to roost for a state that has gleefully embraced this crap for decades.
too manyu of the comments show the intellectual laziness of many and the bigotry of many towards people who disagree with them .. this is a sad state of affairs and a clear problem causing the demise of civility and social order, which shows the Republic is failing.
my best advise is for many of you here to GROW THE F**K UP and stop with the political buzzwords and insults. YOU are the problem, not a solution
@Deserttrek:
Physician, heal thyself.
@Deserttrek:
I’m calling bulls*** on that.
Exactly how is it it “bigotry” to disagree with people who propose to do as is proposed in Kansas? Or with people who actually shut down the federal government 2 times in the past 5 years, and who thought a federal default was not something to worry about?
Those same people have done more to cause the demise of civility, which you bemoan and attribute to the “bigotry” of disagreeing with people who have largely caused that dysfunction and incivility.
@al-Ameda :
I love this little piece of projection because it tells you exactly why we have the issues we have today. People unconsciously expect others to treat them the way they would act. A kind person anticipates kind strangers, a cruel person expects others to be cruel back. They really don’t get why people are upset with their negative, oppressive and just downright hateful actions and beliefs. They fundamentally believe this is a argument and one side is tossing invectives.
So they learn a new word (or think they do): bigot. They misunderstand the definition and think it’s an insult. And they learn the social power that comes with it – namely, nobody wants to be a social pariah and suddenly they’re no longer on the side of the angels. They don’t like that and begin trying to apply this new negative label to everyone they don’t like and disagree with to shut them up and knock them down… just like they think their opponents do. They don’t connect label to action. They don’t get “racist” isn’t a slur, it’s a description they’ve earned. They don’t get they are being called bigot for a reason and not just because someone’s citing a “different point of view”.
Like gram always said “Point a finger at someone and notice there’s 4 pointing back at you”