Saturday, June 13, 2015

Meanwhile, in Kansas . . .

Gerard N. Magliocca

While everyone is focused on the lightning bolts that the Supreme Court will throw down in the next two weeks, some remarkable constitutional developments are underway in Kansas.  A power struggle between its Supreme Court and its elected branches has culminated in an appropriation that links the funding of the state judiciary to that Court's determination of whether a 2014 statute removing certain powers from the Court over the administration of trial courts is constitutional.  In other words, if the Court strikes the administrative law down, then funds for the judiciary will be slashed dramatically.

This could set an dangerous precedent.  Using the prospect of a government shutdown to win political points against a Governor or a President is one thing.  Making a similar attempt to blackmail a court into upholding the constitutionality of a law is quite another.  What should the judges in Kansas do?  Some are suggesting that they sue in federal court, but this strikes me as a losing strategy.  A federal court cannot compel the Kansas Legislature to fund state courts a certain level, even if there is some legal theory that could identify a violation of the Federal Constitution in this situation.

But many of the state's judges could sign a round-robin stating that they will go on strike if the cut in funding occurs.  Is a judicial strike an impeachable offense?  Under ordinary circumstances, yes.  Is that true here?  Probably not.  More to the point, I doubt that the Kansas Legislature can muster the votes to impeach and remove so many judges.  Hopefully, before that prediction is tested cooler heads will prevail, but that may not occur with some realistic threat of judicial retaliation.


Another interesting thing to think about is why such tactics are being used in the first place. I think that Mark Tushnet's argument that constitutional hardball is becoming more prevalent seems relevant, only things are playing themselves on the state rather than federal level. How about that for a laboratory for democracy? If the legislature and executive branch in Kansas were successful, would there be a risk of this sort of hardball tactics becoming a model used elsewhere?

"Is a judicial strike an impeachable offense? Under ordinary circumstances, yes. Is that true here? Probably not."

Now, that would be a real constitutional crisis: The legislature impeaching a judge for going on strike, and the judiciary ruling that judges couldn't be impeached for THAT reason.

Sorry, judges don't get any say on whether the legislature can impeach them for a specific reason. The conflict of interest in letting them do that is just too glaring.

"Coercion" comes to mind. Perhaps Mel Brooks can script this as a satire of "The Wizard of OZ" and taking the role of the late Frank Morgan in the manner of Gov. Brownback serving in a lab setting ("Young Frankenstein"?) of a mythical state.

Query: Can a state judge qualify under the 14th A for the protections it offers? (Brett might suggest 2nd A rights of state judges in judicial self-defense.)

Gov. Brownback has well demonstrated Thomas Frank's 2004 "What's The Matter With Kansas? How Conservatives Won the Heart of America." Clearly, it's time for a transplant.

Mark Graber's post subsequent to this post on New York's Council of Revision reminded me of James Madison's efforts in 1787 with the Constitutional Convention to provide the central government with a veto power over state laws. See this by Joseph Ellis: agenda-constitional

Madison was not successful. But then the 14th A came along in the 1860s to impose some constitutional limitations on the states So let's dig a little deeper into the 14th A before giving up on federal courts addressing this coercion by the executive and legislative branches of Kansas upon its judicial branch. Kansas as a laboratory is failing democracy.

For those of us who do not follow Kansas politics, here is what the 2014 statute does according to the NY Times:

"The 2014 law took the authority to appoint chief judges for the district courts away from the Supreme Court and gave it to the district courts themselves. It also deprived the state’s highest court of the right to set district court budgets...The bill removed the court’s authority to appoint chief judges for the district courts, not its ability to appoint district judges themselves, who are either elected or selected through a merit process."

This law does not appear to go to a core judicial power. Unless the state Constitution states otherwise, the legislature should be well within its legislative and spending powers here.

The more interesting question is whether it is unconstitutional for the legislature to condition funding of the judicial branch to the Kansas Supreme Court ruling a certain way in a case. This legislation does strike to the heart of the judicial function. If the condition is unconstitutional, could the state supreme court strike down the condition alone and continue the funding?


There are many more failed "laboratory" experiments in Kansas, bringing Gov. Brownback to tears with its budgetary problems. How representative will Kansas governance be if the executive and legislative branches bring the judicial branch to its knees?

What a nice post. law Essay

Mike Dorf has followed up on Kansas with a new post at Dorf on Law that provides background via his 2007 article addressing coercion. Hopefully comments there, and here, will shed a little more light on Kansas. I'm clicking my heels in anticipation.

Mark Graber's post is a data point on why Taney was wrong in Dred Scott. But, we knew that already, right?

In fantasy constitutional moments, on Veep last nite, the election ended with an apparent tie in electoral votes. So, the 12/20th Amendment arose though the discussion was somewhat garbled. Also, the possible new veep (now with more of an edge) asked the current President to appoint him Treasury Secretary. This appears kosher unless we go the Cheney route and say that the V.P. is actually a member of the legislative branch (the Senate in particular).

On point, Michael Dorf's new post is interesting & his argument as to unconstitutionality convincing.


The United States Court of Federal Claims just held that the Federal Reserve illegally nationalized AIG during 2008 in violation of the Federal Reserve Act and rejected the government argument that a business can agree to an illegal nationalization. Because the nationalization was unauthorized by law, the court did not reach the unconstitutional takings claim.

LONG PAST TIME a court finally called out the government on this awful precedent.

The shareholders of Fannie and Freddie may be able use this case to dissolve the de facto government nationalization of their corporations.

For some reason I'm reminded of "damnum absque injuria" I had learned in a course I took in 1951.

Kansas defied Grover Norquist by raising taxes to balance the budget.

On the plus side, the poorest Kansasonians (Kansastanis?) will get hurt the most by the new tax increases.

Off topic: Given his history and book on public monuments, be interesting to see Sandy Levinson's thoughts on the Confederate flag developments.

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