Late Friday the Kansas House approved on a 66-57 vote a plan to tie additional funding of the state’s judiciary on the condition the state’s courts do not strike down certain laws as unconstitutional.
I mentioned previously here, here, and here, the situation in Kansas involving HB 2338. In sum the fiscal portions of the bill provide $2 million for funding of the state’s judiciary and increase various court fees. Beyond the fiscal, HB 2338 also includes provisions to strip the state supreme court’s power over local court budgets and the selection of local chief judges, powers it has had since the 1970s when the state constitution was amended to give “general administrative authority over all courts in this state” to the supreme court. The Chief Justice of the state not only wrote to the legislature in opposition but took to the oped pages against the plan.
The $2 million in funding contains a non-severability clause; if the Kansas courts strike down the provisions stripping the supreme court’s powers as unconstitutional the entire bill, including the $2 million, falls. Efforts on the House floor to try and extract the court stripping provisions and/or the non-severability portions failed.
As I mentioned previously, hanging over this is the legislature’s displeasure at the Kansas Supreme Court’s recent decision regarding K-12 financing and there is a directly (linguistic) link between the effort to strip the Supreme Court of power and the K-12 financing decision. Prior to HB 2338, the only time non-severability language like this has been used in Kansas in the last decade has been in bills/laws that were enacted in response to the Supreme Court’s K-12 funding decisions.
HB 2338 now goes to the governor for approval.