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June 05th, 2020
L&T Opinions Page

earl watt mugL&T Publisher Earl Watt

 

In our system of three co-equal branches of government, each branch is supposed to have a check and balance over the others, but in Kansas that is not the case.

No, I’m not talking about Governor Laura Kelly’s excessive power grab during the coronavirus pandemic. The Legislature can vote to rescind her executive authority, and I would expect to see some action this week that will no longer allow her to unilaterally control the entire state despite the data showing a steadily declining number of new cases and deaths.

From Friday to Monday, Kansas only had one death.

The Legislature will surely play a role moving forward, as they should since no branch should ever be able to operate without input from the other two.

Kansans cannot count on oversight from their own state Supreme Court. They will simply rubber stamp any plan from a liberal governor and make up any grounds as to why.

Case in point was the recent attempt to ban church services. The Kansas Supreme Court declared the Legislature had no role to play in being able to revoke the governor’s order, completely overlooking whether or not the governor’s mandate violated the Constitutional rights of Kansans.

The federal court sided against Kelly when two Kansas churches brought the case. It was just another in a series of overrulings by the federal courts over the decisions made by the Kansas Supreme Court.

In addition to this ridiculous decision, the Kansas Supreme Court also ruled that abortion was a Constitutional right guaranteed by the right to “pursue happiness.”

Some might conclude that one person involved in the outcome was denied their right to pursue happiness, which is another reason why the Kansas court is a laughing stock to the federal courts.

Nevertheless, this asinine ruling remains, and any challenge of any regulation of abortion of any kind in Kansas will be struck down.

If a mother goes in to labor in Kansas after nine months of pregnancy and at the last second decides for abortion rather than live birth, this court has given authority to allow that action.

And the Legislature can do nothing about it.

Why would the Legislature agree to appoint such justices?

That’s the point. They don’t play any role in deciding who sits on the bench and therefore are not a co-equal branch of government.

Likewise, the Supreme Court is granted excessive authority by having achieved their position with no oversight by the Legislature. With such a system, why would they feel obligated to the legislative process? How would the Legislature be sure that those appointed to the Kansas Supreme Court have a perspective that would honor the Constitutional laws passed by the state’s representative body?

Right now, there are no such assurances.

That’s why the court routinely snubs its nose at the role of the Legislature. From school funding to abortion, the Kansas Supreme Court simply usurps legislative authority whenever it chooses.

While other states look to their state legislatures to determine the proper level of funding for public education, Kansas has to get permission from the Supreme Court who has decided to rule on what “adequate” levels of funding means.

If they determine the amount to be “less than adequate,” the Kansas Supreme Court forces a tax increase on the people of Kansas even though they were never elected to do so.

At the federal level, Supreme Court justices are nominated by the president but must be confirmed by the Senate, which gives the upper chamber of Congress a hand in selecting the justices.

Not in Kansas.

In Kansas, a nine-member panel suggests three names to the governor who then chooses one, and that person becomes a Kansas Supreme Court justice.

Four of the nine members on the panel are non-lawyers and are appointed by the governor.

Four more members are selected by the Kansas Bar of lawyers, one from each Congressional district.

The ninth member of the panel is the chair of the commission and is elected by the members of the Kansas Bar Association.

Basically, the state’s lawyers choose five members of the nine-member panel, and the governor the other four with no input from the Kansas Legislature at all.

The three names are presented to the governor, and they select one of the names.

It is about the worst possible system.

Oklahoma has a similar system, but there are appointees on the commission chosen by the president pro-tempore of the Senate and the Speaker of the House.

Even though this may seem minor, it does give some legislative credibility to the process, something that does not exist in Kansas.

The only recourse for the people of Kansas is to vote no to retain judges and force others to be appointed.

The Kansas Legislature should revise the process and include members on the panel that represent the legislative body if there will ever be legitimacy of the court.

Otherwise, the court is simply a puppet to the governor and the Bar Association and not necessarily to the rule of law and to those who write those laws.

Until that happens, expect more legislation from the bench.

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