Arrogance at work in Topeka

4/14/2012

By GERALD O. SCHULTZ

By GERALD O. SCHULTZ

Our great state was founded in 1861. From statehood, the Judiciary was established to be the third co-equal branch of government. Each branch had constitutional duties to the other. For instance, the power to legislate was vested in the Legislature, the power to use executive authority in the Executive Branch and the power to decide cases and controversies, the Judicial Branch. With these corresponding powers came equally compelling and required constitutional duties. The Legislature has the constitutional duty to adequately fund Judicial Branch operations.

From 1861 to 2010, our Kansas Courts remained open and available for the citizens of Kansas. With a mantra of "we are the Legislature," the 2010 members of the Legislature decided to "squeeze" the Judicial Branch for a myriad of reasons. First on the agenda was to "show" the Court that the Legislature disapproved of the 2005 Supreme Court decision on school finance. A new lawsuit is pending as funding for schools has dropped from $4,400 per child in 2007 to $3,750 this year and more cuts are threatened by the Legislature. Back to 2010. The solution then was to require the Judicial Branch to operate without adequate funding. For the first time in the history of Kansas, because of the unprecedented failure of the Legislature to adequately fund the Judicial Branch, the Supreme Court was left with no alternative but to close the Courts for "furlough" days, which is short for, "we are cutting your pay."

The Judicial Branch budget is more than 90 percent personnel costs. With unification of the Court system in 1977, the state took on the costs of the "people" working in the Court system, with the counties remaining the "providers" of the building, supplies, goods and hardware at the District Court level. Thus, when the Legislature fails to do its job, the only alternative is to affect the little people who work in the Court system. Since judges may not have their wages cut, except upon action against all state employees, the non-judicial workers in the Judicial Branch become the whipping child of the Legislature.

Fast forward to 2012. In February, Chief Justice Nuss, by letter, advised the Legislature that with the reduction in case filings during the fiscal year, the surcharge budgeting for Judicial Branch operations would not be sufficient to run the Branch through the end of the fiscal year (June 30, 2012). The Legislature, through the work and direction of Senate President Steve Morris, promulgated a stop-gap bill to fund the Courts with a $1.4 million dollar supplemental appropriations bill. This bill was agreed to by the Court, Senate and House leaders in early March. This was $1.4 million of a $14 billion dollar budget. This year, the state is looking at a $500 million surplus. The $1.4 million for essential Court operations was peanuts.

The week of March 26th was hectic in Topeka. The Legislature had put off the supplemental appropriation. The members of the Legislature were looking forward to their spring break. Although the prior agreement was the supplemental bill was appropriate, on March 30 the House adjourned under the watchful eye of House Speaker Mike O'Neal and did not pass the bill to fund the Judicial Branch through and including June 30. Once again, the House had failed to do its constitutional duty. And once again, the Judicial Branch was forced to order furloughs. Since the Court cannot meaningfully cut anything from its budget except "pay," furloughs was the result.

When the furloughs were announced by the Court, the Speaker of the House opined to the Supreme Court suggesting it could have used the Attorney Discipline Fund. This type of "sweeping" is the subject of a current lawsuit. Can you guess who is lead counsel seeking to sustain the art of "sweeping" restricted state fund accounts? The answer: House Speaker Mike O'Neal. I think the Court tipped its hand when it refused to invade a restricted fund for ordinary operations.

Chief Justice Nuss aptly described the Court's options when faced with legislative inaction: "all of them are lousy." I concur. I asked "why should the little people of the judiciary be the only losers?" The answer is that you cannot cut judges' pay, otherwise, lawmakers may try to cut judges' pay when a decision was made to which they did not agree or worse, increase pay when they liked the decision. That's buying justice. We cannot have a "controlled" judiciary. We must and will expect an independent Judiciary fully and reasonably funded by a Legislature that understands and fulfills its constitutional duty to the Judicial Branch and to the people of Kansas. In the end, it is not just the non-judicial personnel who get punished by this arrogance, it is us, the people, who seek redress and now have it denied in the name of political gamesmanship.

Local representatives Larry Powell and Reynaldo Mesa also thought the Attorney Discipline Fund should have been "swept" to keep the courts open. It causes great concern to this citizen and attorney that the House Speaker and our representatives are now attempting to dictate to the Chief Justice of the Kansas Supreme Court. Do these people presume to know the outcome of the litigation wherein the speaker is the lead attorney in a "sweeping" case?

When it comes to the furloughs, the real story here is why? Why would the House not act when their leaders had agreed to do so weeks in advance? The answer is revealed in the words of our local representatives. They did not want the money coming from the General Fund. Why not? Why would the House let the little people in the Court system be the pawns of the Speaker's chess game with the word "sweeping"? The answer is that by not approving the $1.4 million bill, Mr. O'Neal wants to play chess over the game of sweeping restricted accounts. I am curious why Rep. Powell and Mesa do not have the time to call anyone who actually works in the system to see how furloughs affect the Court system. Instead, they stated that they didn't get any calls last time there were furloughs and it was not a big deal. Ignorance of how inaction of the House affects people in Garden City is unacceptable. In the end, House members acted arbitrarily and with arrogance in failing to do their job and fund the Courts.

Don't be fooled by the smoke screen. The House, collectively, thinks it can avoid doing its constitutionally required job without any recourse from the people. They are wrong. There are three co-equal branches of government. The Supreme Court exercising that authority is the will of the people. For the Court system, I urge restraint in the face of arrogance or ignorance. The people created the three co-equal branches of government so each could do their job. The people expect and want a funded independent judiciary that is open for business.

Gerry Schultz was recently a member of the 2011 Blue Ribbon Commission to the Kansas Supreme Court. He is a past president of the Finney County Bar Association, past member of the Kansas Bar Association Legislative Committee and has practiced law in Garden City since 1984.

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