TOPEKA – (September 18, 2015) – Kansas Attorney General Derek Schmidt today issued the following statement regarding the two pending lawsuits filed against the State of Kansas by district court judges. The lawsuits challenge both the 2014 change in the selection process for chief judges across the State and the 2015 linkage of those changes to the Judiciary’s budget:
“Kansans are all too aware of the ongoing tension between the legislative and judicial branches of state government. The Legislature’s defenders believe the courts have failed to respect the Legislature’s power of the purse, while the Judiciary’s defenders believe the Legislature has failed to respect the courts’ power to independently decide cases brought before them. This conflict does not represent traditional Kansas values and is deeply distressing and regrettably divisive.
“The two pending lawsuits filed against the State of Kansas by district court judges are symptoms of this ongoing tension. The first case challenges the Legislature’s constitutional authority to alter the method by which the Judiciary selects the chief judge in each of the state’s 31 judicial districts (Solomon v. Kansas, Shawnee County District Court Case No. 2015-CV-156, (‘Solomon’)). The second case challenges the Legislature’s authority to place conditions on the funding it appropriates for the Judiciary (Fairchild, et. al. v. Kansas, Shawnee County District Court Case No. 2015-CV-802, (‘Fairchild’)).
“As attorney general, I swore an oath to uphold the Kansas Constitution which, of course, insists upon both legislative control of the purse strings and judicial independence. From the standpoint of the attorney general’s office, which regularly works with both the Legislature and the Judiciary on many matters important to Kansans, I urge a healthy dose of humility and restraint by all involved in an effort to ease tensions and improve inter-branch cooperation.
“Although I would prefer to avoid the crossfire between these two branches of government in which I do not serve, I cannot. My office is responsible for providing legal representation for the State when it is sued – even when it is sued by its own judges. As attorney general, I do not have the luxury of standing aside and watching events unfold. Therefore, I am announcing the following steps to move these cases toward resolution:
“First, today the State has formally filed notice that it is appealing the decision of the Shawnee County District Court that declared unconstitutional the 2014 change in the method for selecting local chief judges (Solomon). The change in the selection process presents issues never before addressed under the Kansas Constitution, but the district court’s decision is inconsistent with established practice in many other states and seems logically inconsistent with the fact that each judicial district itself is created by legislative action. I am grateful to the district judge in this case and to the plaintiff for agreeing so far to stay the district court’s decision while this appeal proceeds.
“Second, at the appropriate time, I will formally ask the Justices of the Kansas Supreme Court to recuse themselves from deciding the Solomon case because it directly involves their own power. At a minimum, all of those Justices who – as the ‘Supreme Court of Kansas’ – publicly and pointedly criticized the legislation when it was enacted should recuse themselves from this case testing the law’s validity. Even if those Justices could decide this case without regard to their publicly expressed views, the inevitable perception of many Kansans would be that the Supreme Court had made up its mind about the constitutionality of the 2014 legislation before the lawsuit was even filed. Even an appearance of partiality would not serve the interests of justice in a case of this importance. I fully recognize that recusal of all, or almost all, of the Kansas Supreme Court Justices in such an important case of statewide concern would be unusual, but there is ample precedent in Kansas and other states.
“Third, to avoid even the potential appearance of a conflict of interest, I am recusing myself from representing the State in the second lawsuit (Fairchild) in which three district court chief judges and a fourth district judge challenge the Legislature’s authority to link judicial branch funding to the change in the method of selecting chief judges. My conflict arises because the Honorable Jeffry Jack of Labette County is one of the plaintiff judges suing the State in this lawsuit, and the attorney general’s office already represents Judge Jack in an unrelated lawsuit where both he and I are codefendants. To avoid even any hint of possible conflict of interest or impropriety from being simultaneously for and against Judge Jack in these lawsuits, I have arranged for separate, private representation for the State in the Fairchild proceedings.
“I believe neither the Legislature nor the Judiciary intends or wants increasingly strident conflict, nor would that serve Kansans well. Each and every step I am taking is intended to preserve proper respect for the separation of powers and for the important institutions of Kansas government. I am firmly dedicated to preventing these disputes from shutting down Kansas courts, and I am confident that the Legislature never intended such a result through its enactments in 2014 and 2015.”