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July 6 — A Kansas law tying judicial funding to a particular state court ruling threatens the ability of courts to perform essential legal functions and has already brought uncertainty to a number of legal actions, including an important environmental case, attorneys and constitutional law scholars told Bloomberg BNA.
In June, the state Legislature enacted a law that conditions the judicial budget on the outcome of a pending lawsuit. Specifically, the law's nonseverability provision stipulates that if a state court strikes down a 2014 law removing some administrative authority from the Kansas Supreme Court, then the entire state judiciary will lose its funding for fiscal years 2016 and 2017.
“We’re in uncharted territory,” Richard E. Levy, J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas School of Law, told Bloomberg BNA.
“If the legislature can threaten the courts’ budget based on the outcome of court decisions, it would undermine any kind of independence of the judiciary,” Levy said. “If you can condition judicial funding on the outcome of this case, you can condition it on the outcome of any case.”
Defunding the courts would “wreak havoc,” Jeffrey D. Jackson, a constitutional law professor at Washburn University School of Law, told Bloomberg BNA. “A lot of citizens don’t realize how much they depend on a functioning judicial system.”
Thousands of lawsuits addressing environmental and other issues currently pending at the state district court and appellate levels could be held in abeyance if the courts are defunded.
One case that could be affected is a challenge to a Clean Air Act permit issued for construction of a coal-fired power plant in the western part of the state. While both parties want the issue decided as soon as possible, an unresolved lawsuit could hamper investment decisions for the company planning to build the plant, legal observers said.
However, putting litigation on hold is only one potential consequence of shuttering the judiciary, attorneys and scholars told Bloomberg BNA.
Kansas Supreme Court rules historically provided that the high court would select the chief judge of each judicial district in the state and maintain administrative authority over local court budgets. That authority stemmed from a 1972 amendment to the Kansas Constitution vesting “general administrative authority over all courts in this state” in the state supreme court.
The contested 2014 law, which contains judicial appropriations for fiscal year 2015, makes local judges responsible for choosing their own leaders and controlling their own budgets. This law, like the judicial budget bill, includes a nonseverability clause stipulating that if one provision is struck down then the entire law is rendered void. Consequently, if a court rules that the law is unconstitutional then the courts could lose their funding for three fiscal years.
“I’ve heard this described as a legislative power grab,” state Sen. Jeff King (R) told Bloomberg BNA. “That’s completely false on its face. Kansas for decades has been focused on local control, giving more power to the people. This is in line with the policy we’ve had of trying to give more authority to officials closer to the people.”
But Chief Judge Larry Solomon, who presides over Kansas’s 30th judicial district, argues that the 2014 law unconstitutionally usurps the state supreme court’s general administrative authority. Solomon filed a lawsuit against the state in February. Kansas filed a motion to dismiss, Solomon filed a cross-motion for summary judgment, and the state filed a response.
“For almost four decades, the [state] Supreme Court has determined which district court judge it deems best suited to serve as the Court’s administrative delegates,” Solomon wrote in his cross-motion for summary judgment. The 2014 law is a “significant interference” with the state supreme court’s constitutionally derived administrative authority.
Removing administrative powers from the state supreme court is “almost certainly unconstitutional when you look at the way the Kansas Constitution structures the courts as far as supervisory authority,” Jackson said.
“It makes sense from the separation of powers perspective that the highest court would have administrative responsibility for the entire court system,” Bill Rich, a constitutional law professor at Washburn University School of Law, told Bloomberg BNA.
However, this is “an area where there are some overlapping powers and the answer will likely depend on whether the budgetary authority and the appointment of chief judges are seen as essential components of the Kansas Supreme Court’s administrative responsibilities,” Rich said.
A court ruling in favor of Solomon would trigger the nonseverability provisions that condition judicial funding on survival of the 2014 law. While the immediate ramifications—denying the courts their operating costs—are evident, scholars say that the political branches might not have considered the full array of consequences.
“The repercussions of suddenly cutting off all funding for the courts would be enormous and would be the kind of problems the governor and legislature would have to immediately address,” Rich said.
Defunding the court system threatens the integrity of the judiciary, separation of powers and “if nothing else, law and order,” Pedro L. Irigonegaray, one of the attorneys representing Solomon, told Bloomberg BNA.
The state cannot operate the criminal justice system without courts, Levy said. Police officers depend upon the judiciary to issue search warrants. Furthermore, when an arrest is made, the arrested person must be brought before a magistrate judge. If the courts aren’t operating, then this legal requirement can’t be fulfilled and the arrestee must be released.
There are also issues with statutes of limitation and the constitutional right to a speedy trial. Without judicial action the state might miss its prosecution window, Jackson said.
“There’s a right to a speedy trial,” he said. “If you’re not brought to trial within a certain number of days the case against you gets dismissed. If it goes on long enough, you can’t try someone for a crime they’ve committed.”
The list of consequences does not end there, scholars say. Civil litigation would be held in abeyance, and new cases could not be filed. Parties could not seek injunctive relief. Marriage licenses could not be issued. The federal government could withhold foster care funding that is predicated on certain judicial actions.
There are “a lot of different ramifications” of defunding the courts, Levy said. “The more you think about it, the more [ramifications] you find.”
But the Legislature won’t allow that to happen, King said.
If the court rules in favor of Solomon “the legislature would have time to act,” he said. “There’s not a reasonable scenario where the courts would lack funding. The courts would still get their money.”
In the meantime, litigants would face legal delays and uncertainty about the resolution of their lawsuits.
“It’s hard enough to sit across from clients to explain the litigation process,” Robert V. Eye, a practicing Kansas attorney, told Bloomberg BNA. “When you throw a monkey wrench like this could be—defunding the courts—I haven’t really figured out how to explain that to clients yet. I might refer them to the legislature.”
Matthew Menendez, an attorney with the Brennan Center for Justice, which is supporting Solomon in his lawsuit against Kansas, told Bloomberg BNA that he doesn't think “efforts to intimidate judges are going to affect the outcome of the case.”
“I have confidence that the judges in the state of Kansas are not going to do anything other than apply the law to the facts,” he said.
The court might be able to avoid deciding the constitutional question if it rules that Solomon lacks standing to challenge the 2014 law or that the issue is not yet ripe for determination, two arguments that the state makes in its briefs.
The attorney general’s office declined to comment on the case but said that the state’s briefs speak for themselves.
Specifically, the state argues in its response to Solomon's motion for summary judgment that the chief judge lacks standing because “[h]is professional relationship is the same as ever,” and “[a]t most, any change in the selection process is an injury to the [state] Supreme Court,” and not an injury to Solomon.
The state also argues that Solomon will only be injured “if his colleagues choose not to retain him as chief judge. Because that injury is hypothetical and may not ever occur, the matter is not ripe for decision at this time.”
While the court might rule that Solomon doesn’t have standing, Levy said that this would only delay a ruling on the issue because some judge would have standing in the future.
“There’s a possibility that he doesn’t have standing and that might moot the issues,” he said. “The ripeness argument might be a better one if there’s been no impact yet in his district. But the ripeness argument won’t get rid of the issue permanently—it would only delay it.”
If the Legislature withholds judicial funding then pending litigation would likely be held in abeyance, including a challenge to a prevention of significant deterioration permit authorizing Sunflower Electric Power Corp. to construct a coal-fired electric power plant in Holcomb, Kansas (Sierra Club v. Mosier, Kan., No. 14-112008-AS, briefs filed 6/23/15).
The state Department of Health and Environment issued the permit after a prior decision holding that the department failed to comply with Clean Air Act and state law requirements during the initial permitting process (Sierra Club v. Moser, 310 P.3d 360, 2013 BL 273190 (Kan. 2013).
The Sierra Club alleges that the new permit fails to remedy those violations.
“Courts are essential to the way democracy functions,” Todd True, an Earthjustice attorney representing the Sierra Club, told Bloomberg BNA. “They provide accountability” and “make sure that environmental laws are followed at the state level, the federal level, at any level.”
Eye, who also represents the Sierra Club, said that a judicial shutdown would cause economic problems for companies like Sunflower, which use court rulings that affect their business interests to make certain investment decisions.
“Sunflower needs to have their case processed and decided … as soon as possible,” Eye said.
Attorneys representing Sunflower, which is intervening on behalf of the state Department of Health and Environment, did not respond to requests for comment.
“Litigation is hard enough without having uncertainty whether there will be courts to litigate in,” Eye said. “That’s a dimension of this … that hasn’t been fully appreciated.”
Linking judicial funding to a court decision is “at the very least unusual, at the very worst an effort to improperly influence or attempt to influence a judge currently involved in a judicial proceeding,” Irigonegaray said.
This is not the first time legislation has included nonseverability provisions, King said. “They’ve been used repeatedly.”
And while “different legal minds can think differently,” King said he is confident that the clauses in the 2014 law and the judicial budget bill are constitutional.
Jackson agrees that the Legislature didn’t overstep its authority by making the judicial budget contingent on the outcome in Solomon.
“I don’t think that attempted influence is a separation of powers problem,” he said. However, actually “failing to fund the courts—that’s a separation of powers problem.”
It is clear that the Legislature is using its “power of the purse” as a weapon against the state supreme court and seems intent on challenging its authority, Rich said.
The budgetary provisions “are almost certainly unconstitutional as a violation of separation of powers,” Levy said.
Scholars and attorneys disagree about what steps courts can take if Solomon wins his case and the Legislature doesn’t take immediate action to restore judicial funding.
“We are not insensitive to the potential consequences of our victory,” Irigonegaray said. “And we are diligently examining remedies to protect our judiciary if we succeed.”
It’s not clear whether courts can sanction legislators or if they have any specific remedies against the Legislature, Levy said. If the treasury refused to fund the courts then judges could issue contempt citations against executive branch officials, but Levy said he doesn’t know if the courts could enforce their orders.
Another potential legal remedy lies in Article 4, Section 4 of the U.S. Constitution, which guarantees each state a republican form of government. A republic requires an independent judiciary to enforce the law, Levy said, but “enforcement of the guarantee clause might be a political question that’s nonjusticiable.”
The Kansas court system could file suit in state court for its operating funds, Jackson said.
“The more likely thing is the court rules it has the inherent power to fund itself,” he said. “To hold otherwise would put the judiciary under the control of the legislature. The court issues a mandamus and we see what happens from there.”
Making the courts inoperable violates fundamental interests in due process, Rich said. “An argument could be made that that becomes a constitutional violation at the federal level.”
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Solomon's cross-motion for summary judgment is available at http://op.bna.com/env.nsf/r?Open=sdoe-9y6nsn. The state's response to Solomon's motion for summary judgment is available at http://op.bna.com/env.nsf/r?Open=sdoe-9y6npu.
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