Kansas ‘Battle of the Branches’ Lamented by Scholar

A Kansas law professor has looked closely at the law and a one-two punch aimed by the legislature at Kansas courts, and in an academic essay, he raises pointed questions about the legislature’s intentions.

Professor William J. Rich of Washburn University School of Law lays out in his Jurist essay the legislative history that has led to a challenge by four district court judges of a state law threatening to defund the entire state judiciary (see Gavel Grab). The defunding provision was written to be triggered if a court struck down another statute, removing the Supreme Court’s authority to appoint chief district judges, and indeed a judge has ruled that law invalid.

Washburn does not hurry to conclusions but writes about the legislature, “The argument that the legislature wanted to threaten the judiciary to gain leverage in litigation gains credibility from a variety of other Kansas legislative proposals that have circulated within the statehouse. The same legislators who challenged the state’s supreme court authority to appoint chief judges also debated plans for changing the process of selecting judges, limiting their tenure in office and limiting the state supreme court’s jurisdiction. Their alternative ‘court-packing’ plans would have made Franklin Roosevelt blush.”

There is tension between the legislature and the courts over the latter’s rulings on the state’s obligation to fund public education. Looking elsewhere, Washburn says that “no other state has seriously questioned the underlying authority of the judicial branch to resolve such disputes. In Kansas, however, the legislature appears prepared to retaliate against the judges who determine legislative action violates the state constitution.”

Washburn concludes by quoting the judge who struck down the judicial-appointment statute. Judge Larry Hendricks wrote that “usual parlance … refers to the legislative, executive and judicial departments of government as ‘branches.’ Each is largely independent in executing its constitutionally mandated duties. But what is all too frequently lost in the metaphor, without going too far out on a limb, is that the branches must, ultimately, remain connected with one another on some level in order to survive and thrive.”

“The question in Kansas is whether anyone will hear that plea,” Washburn adds. Jurist is a web-based legal news and research service. His essay is titled, “In Kansas, a Battle of the Branches.”