Kansas Senate approves more funding for courts provided they don’t find laws unconstitutional; provision language used in court vs. legislature K-12 funding fight bills

A follow-up to yesterday’s post on a Kansas plan to give $2 million to the state’s judiciary on the condition that the courts not strike down other provisions in the appropriations stripping the supreme court of administrative power. That bill (HB 2338 as amended) was approved 23-12 by the Senate late yesterday. I mentioned that the fight over the supreme court’s power seems tied to anger by the senate over the possibility that the supreme court would require more K-12 funding from the legislature (that decision was handed down today).

The non-severability language in HB 2383 appears to have only ever been used with respect to the Kansas Supreme Court’s K-12 financing decisions (i.e. not before 2005) when the issue of school funding was before the courts. In other words, they provided if the Kansas Supreme Court struck any clause or provision of the legislature’s plan for education funding, the entire funding bill collapsed.

HB 2383 of 2014 starts with giving $2 million to the courts (Section 1) then strips the supreme court of administrative power over local court budgets and selection of chief judges (specifically Sections 2, 8, and 19). It then reads in Section 31 (Section 32 in amended version)

The provisions of this act are not severable. If any provision of this act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision.

Compare this with HB 2986 of the 2005 regular session, a bill to address school funding after the Supreme Court had ruled in January 2005 on school funding in Montoy II

The provisions of this act shall not be severable. If any provision of this act is held to be invalid or unconstitutional, the entire act shall be null and void.

And SB 549 of the 2005 regular session on school funding after Montoy II (which was enacted)

Except for the provisions of Section 4, and amendment thereto, and amendments thereto, the provisions of the school district finance and quality performance act are not severable. Except for the provisions of Section 4, and amendments thereto, if any provision of that act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision.

And compare again from SB 3A from the 2005 Special Session enacted in July 2005 after the Kansas Supreme Court rendered another decision on school funding in June 2005 (known as Montoy III).

Except as provided by this section, the provisions of this act shall not be severable. If any provision of this act, other than the provisions relating to declining enrollment and the increase in supplemental general state aid attributable to the increase in the state prescribed percentage under K.S.A. 72-6433, as amended by section 17 of 2005 Senate Bill No. 43, is held to be invalid or unconstitutional by court order, the entire act shall be null and void.

And SB 361 of 2011, again on school funding

The provisions of sections 1 through 29, and amendments thereto, shall not be severable. If any provisions of sections 1 through 29, and amendments thereto, is held to be invalid or unconstitutional by court order, the entire act shall be null and void.

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