According to a 2015 Kansas Supreme Court decision, lawmakers have an obligation to oppose judicial overreach. In the ruling, Justice Eric Rosen said legislation that encroached on the judicial branch’s responsibilities was unconstitutional. Writing for the majority, Rosen cited U.S. Supreme Court precedent, noting the government is divided into three, distinct and separate branches.
“It is the duty of each to abstain from, and to oppose, encroachments on either,” Rosen’s opinion in Solomon v. State reads.
Rosen said the law, HB 2338, asserted significant control over a constitutionally established power of the Supreme Court. The opinion repealed the legislation that revoked the Court’s authority over district courts.
“One department of government usurps the powers of another department when it exercises coercive influence on the other,” Rosen wrote. “In order for the interference of one by one department with the operations of another department to be unconstitutional, the intrusion must be significant.”
According to former Kansas House Speaker Mike O’Neal, an attorney, the Court was righteously indignant with the legislature’s attempt to meddle in the Court’s business.
“The linchpin of the Court’s decision was its view that the legislature had violated the separation of powers doctrine by purporting to meddle with an administrative function of the Court,” O’Neal explained to Kansas Policy Institute.
The 2015 decision is one lawmakers may take to heart this legislative session as they consider the Court’s 2017 ruling that the current school financing formula is unconstitutional. In Article 2, the Kansas Constitution gives lawmakers the power of the purse, but ongoing school funding lawsuits find the Court demanding the legislature send more money to public education under threat of closing schools. Article 6 of the constitution requires the legislature to make “suitable provision for finance of the educational interests of the state.”
The Court has ruled “suitable” means “adequate and equitable” financing. Kansas Attorney General Derek Schmidt told lawmakers during an interim committee meeting on school funding that they should consider asking voters if that’s the best way to interpret the term “suitable.”
Voters adopted the term in 1966, and Schmidt said the Court has spawned more than 1,000 pages of judicial decisions to interpret it. The most reason decision, an 80-plus page opinion, said public education funding isn’t adequate or equitable.
Determining equity is a traditional role for courts, but Schmidt said determining whether the amount of funding is adequate is commonly a legislative function.
“Perhaps that is why adequacy litigation tends to invite the greatest rancor and risk of constitutional crisis: It squarely pits the judiciary’s constitutional duty to determine what the law is against the Legislature’s constitutional duty to control the public purse strings,” he said.
Schmidt recommended legislators consider seeking specific instructions from voters on how school funding disputes should be resolved. He said the clarification would be a “citizen’s veto.”
Lawmakers could adopt a Constitutional amendment clarifying Article 6. That would require the approval of two-thirds of legislators in both houses before a constitutional question could be put before voters.
According to recent statewide polling, voters would like to see the school funding standoff between the Court and lawmakers resolved by a constitutional amendment. The poll found that 59 percent of registered voters want the state constitution changed so courts cannot set school funding.
However, the clock is ticking. In its latest school funding decision, the Court gave lawmakers an April deadline to adopt a new school funding mechanism and present it to Justices for consideration.
If lawmakers are to follow the advice of Rosen’s 2015 opinion and resist encroachment of the judiciary, they’ll need to hurry.
