TOPEKA – (November 10, 2015) – The State of Kansas today formally asked the justices of the Kansas Supreme Court not to participate in the appeal of Solomon v. Kansas, Kansas Attorney General Derek Schmidt said. The outcome of the case will likely determine the constitutionality of a law the Court has publicly said it “strongly opposed … since its creation.”
On September 18, Schmidt announced that as part of a broader effort to ease tensions between the Legislative and Judicial branches of state government, he would ask the justices to recuse themselves from deciding the case. At that time, Schmidt also took steps, now implemented, to eliminate the risk of a judicial shutdown by obtaining a court order that blocks any funding cutoff that might result from a decision in this case until at least March when the Legislature is back in session and can act immediately to prevent a funding cutoff. Schmidt also announced at that time he was recusing himself from representing the State in a separate but related case, Fairchild v. Kansas, because of a conflict of interest.
“The authority is well-established that judges and justices should recuse themselves from deciding cases in which their impartiality might reasonably be questioned, and in fact the Kansas Supreme Court’s own rules impose that standard on the justices,” Schmidt said. “As we describe in detail in today’s motion to recuse, the repeated efforts by and on behalf of the Supreme Court first to defeat and then to discredit this legislation are likely to create in reasonable minds at least an appearance that the justices’ review of the law would not be open-minded. The ultimate decision in this important constitutional case must not be clouded by reasonable doubts about the impartiality of the tribunal.”
The State’s motion recommends the Supreme Court use its authority to appoint the members of the Kansas Court of Appeals to sit temporarily on the Supreme Court and decide the case. The motion urges appointment of the Court of Appeals, rather than district court judges, because the appeals judges have no direct stake in the outcome and have not been involved in the legislative process that enacted the legislation at issue. It is common practice for the Supreme Court to appoint judges from the Court of Appeals or the district courts to sit on the Supreme Court when one or more justices are recused.
The case (Solomon v. Kansas, Case No. 114,573) is a challenge brought by Chief Judge Larry Solomon of the 30th Judicial District to 2014 House Bill 2338, which (among other provisions) changes the method of selecting the chief judge for each judicial district from appointment by the Supreme Court to peer selection by the judges in that district. In September, District Judge Larry Hendricks of the Shawnee County District Court ruled in favor of Chief Judge Solomon and found the statute to be an unconstitutional intrusion into the power of the Supreme Court, but he put that decision on hold with the consent of both parties pending the State’s appeal.
On October 9, the State formally filed its appeal in the Supreme Court, and on October 29 the Supreme Court announced it has scheduled oral arguments in the appeal for December 10 in order to allow time for a decision before the new law takes effect on January 1, 2016.
A copy of the State’s motion to recuse is available at http://1.usa.gov/1SguI1b.