Kansas: legislature moving to repeal law that would defund courts for striking down laws; Senate hearing Thursday

The 2-year saga of efforts by the Kansas legislature to defund the judiciary should it strike down certain laws could be on the verge of ending.  Bills introduced recently in the House (HB 2449) and Senate (SB 320) would repeal provisions enacted in 2014 and 2015 that could have declared “null and void” all court funding if the courts ruled against the legislature.

As a refresher:

1) In 2014 the legislature enacted supplemental funding for the judiciary (Senate Substitute for HB  2338) but included in it provisions that would have removed the state’s supreme court of much of its administrative power over the lower courts. Moreover, HB 2338 contained a “non-severability” provision: the funding was void if the courts struck down any section of the bill that removed the supreme court’s power.

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.

2) In 2015 the state legislature enacted a judiciary budget for FY 16 and FY 17 (HB 2005 as amended) and again attached a “non-severability” provision: the new funding was void if the courts struck down any section of the 2014 law that removed the supreme court’s power.

Except as provided further, the provisions of this act* are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, 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 this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.

3) The Kansas Supreme Court in December 2015 in fact did strike down a portion of HB 2338 of 2014. A lower court had previously issued a stay of the defunding provision until March 15, 2016.

Both HB 2449 and SB 320 would repeal the non-severability provisions.

The Senate bill is scheduled for a hearing on Thursday, January 14.