Kansas Legislature: "We Don Need No Stinkin' Judges!"

On March 22, the Kansas State Senate passed Senate Bill 439, which effectively expands the scope of impeachment, with many commentators (including this one) believing the standards were written in such a way that the legislature could remove state supreme court justices merely because they disagree with these justices' decisions.

Like the U.S. Constitution, the Kansas constitution currently allows the legislature to impeach government officials for “treason, bribery, or other high crimes and misdemeanors.” Kansas Const. Art. II § 28. Judicial officers fall within this ambit -- in fact, at the federal level, most impeachments in history have been of judges.

The Kansas bill does not amend the state constitution. Rather, Kansas Senate Bill 439 adds a statutory definition interpreting the constitution’s reference to “other high crimes and misdemeanors” to include:

(a) Commission of offenses which bear on the justice's fitness for the duties such justice holds, which such justice is bound by oath or affirmation to perform;

(b) commission of other indictable criminal offenses;

(d) commission of a breach of judicial ethics;

(e) failure to perform adequately the duties of office;

(f) attempting to subvert fundamental laws and introduce arbitrary power;

(g) attempting to usurp the power of the legislative or executive branch of government;

(h) exhibiting discourteous conduct toward litigants, jurors, witnesses, lawyers or others with whom the justice or judge deals in an official capacity;

(i) exhibiting wanton or reckless judicial conduct;

(j) exhibiting personal misbehavior or misconduct;

(k) failure to properly supervise, administer or discipline judicial personnel; or

(l) such other actions which in accordance with section 28 of article 2 of the constitution of the state of Kansas may constitute grounds for impeachment or which in accordance with section 15 of article 3 of the constitution of the state of Kansas may constitute grounds for discipline, suspension or removal for cause.

Many of these definitions are hopelessly vague, and read like a bad joke. How could a judge possibly known whether or not they were “fail[ing] to perform adequately the duties of office,” “attempting to subvert fundamental laws and introduce arbitrary power,” or “exhibiting wanton or reckless judicial conduct”?

Moreover, it seems like a pretty clear attempt by one branch of government to assert power over another, a violation of the doctrine of separation of powers.

The idea of separation of powers is inherent in the American system, but the doctrine is not actually expressed in the text of the U.S. or Kansas constitutions. Rather, it has developed within the courts over the centuries. Note that it's not clear there are federal grounds to bring a separation of powers challenge, as the U.S. Constitution gives the federal government little power to interfere in the internal structure of state government unless that structure is directly impacting the civil rights or privileges of citizens. Article 4, Section 4 does "guarantee to every state in this union a republican form of government," but this provision is very rarely invoked to actually butt into state affairs; it is hard to say whether this provision would create a cause of action in the Federal Courts.

Kansas recognizes a separation of powers based on the state constitution’s “establishment of the three branches of government and the distribution of the various sovereign powers to each of them.” Van Sickle v. Shanahan, 212 Kan. 426 (1973).

As stated in State v. Greenlee, 228 Kan. 712 (1980) (citations omitted):

There have been a number of cases in Kansas dealing with the separation of powers and in them the following general principles are established:

(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution.

(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented.

(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department.

(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time.

I feel confident that a law which potentially allows the legislature to remove justices from nonconforming opinions would raise concerns under all of the reasons articulated in the fourth bullet point above – the essential nature of the judicial function, the degree conferred by the power to impeach, the arguable objective of the law to exert that control, and the foreseeable practical result of blending legislative politics into the judicial function.

Moreover, as mentioned above, the Kansas constitution allows impeachment for “treason, bribery, or other high crimes and misdemeanors” (though unlike the U.S. Constitution doesn’t also provide that judges “shall hold their offices during good behavior”), which would not seem to encompass the broad transgressions in the state senate's bill. So this adds the additional question of whether the text of the bill can even be conceived of as within the phrase “high crimes and misdemeanors,” and also of whether the legislature is attempting to engage in constitutional amendment through regular statutory lawmaking.

But wait, here comes the fun part.

Let's say that the Kansas Supreme Court does overturn the law. What if the Supreme Court’s overturning of the law is cited by the legislature as the court “attempting to subvert fundamental laws and introduce arbitrary power” and “attempting to usurp the power of the legislative or executive branch of government”? What if the court decides a law invalid, and the legislature tries to impeach the court over that decision?

Amazingly, something like this has already happened! In the 1820s, in a time of economic crisis, the Kentucky Court of Appeals (then the highest court in the state) overturned a pair of debt relief laws, resulting in public outrage. The legislature attempted to impeach the offending justices but failed to reach the necessary two-thirds majority. So, channeling Chumbawumba, the legislature tried another tactic: by simple majority, it simply abolished the Court of Appeals and established a new one. Thus was born the Old Court/New Court crisis. As described by Yale Law School professor Stephen L. Carter in Bloomberg View:

The matter swiftly degenerated into farce. The clerk of the old court refused to turn over its records, so the clerk of the new court organized a break-in to seize them.

The old court held the statute unconstitutional and refused to stop doing business, but the new court held the statute constitutional and began doing business. Perplexed lawyers whose clients brought appeals had to choose sides. And some lawyers -- driven perhaps by an admixture of prudence and the prospect of double fees -- filed appeals in both courts.

Meanwhile, supporters of the old court rallied to its defense. The old court ordered the new one to return the purloined records; the new court refused. The old court ordered its sergeant to seize them. The governor threatened to use the state militia to keep the new court in business.

Who said law was boring?

To sum it all up, even if this law makes it through the lower chamber and is signed by Governor Brownback, I see little chance that it survives court review. But, stay tuned – Brownback has fucked over Kansas plenty these last few years, he might just go to full insanity. If not for the many Kansans who would undoubtedly suffer from this debacle, I would love to see it.