By John Celock
The Kansas state Senate on Friday narrowly defeated a proposed constitutional amendment that would have prohibited the state Supreme Court from closing state schools in the future.
The Senate voted 26-13, one vote shy of the requisite 27 vote super majority, to defeat the amendment on day two of the special session called to address the court’s latest recent school finance ruling. GOP lawmakers proposed the amendment in order to address the court ruling, which threatens to impound the state’s $4 billion education budget, which includes funds for local school district. The impoundment has led local school districts to say they will have to close on July 1.
“In the most recent opinion the court threatened as the remedy if the legislature did not comply with the court by the end of the month, the court would close Kansas schools,” Senate Vice President Jeff King (R-Independence) said during the debate.
King, the judiciary committee chairman, said that the proposed amendment would put into the state constitution a 2005 law signed by then Gov. Kathleen Sebelius (D) that said the courts could not close schools. He said that since the court had ruled that the funds could be withheld and schools closed, he and others interpreted that as the court saying that the schools could be closed by the courts.
King argued that the proposal would allow voters to weigh-in on the school closure debate, something a state law would not allow. Opponents argued that the proposed amendment would cut off a possible remedy for the court and also violate the separation of powers. If the proposal had passed both legislative houses it would have appeared on the November ballot.
“What this resolution does is it tramples on the powers of the courts,” Senate Minority Leader Anthony Hensley (D-Topeka) said. “We believe that we have courts for a good reason, so the people of Kansas can have a place to seek redress of grievances”
Hensley argued that the 2005 law was already in place and that the amendment was not needed. He described the proposal as a “red herring” designed to district from the school finance debate. Sen. David Haley (D-Kansas City), the top Democrat on the judiciary committee, called the separation of powers “sacrosanct” and said that voters will be able to weigh in on the courts during a November election on retaining five of the nine Supreme Court justices.
King argued against the separation of powers argument noting that the voters will have a say on the state constitution under this plan. He noted that any law passed by the Legislature can impact the courts, since the laws could limit what types of cases come before the court or court jurisdiction. He also noted that the state constitution has been amended eight times since 1999 for such issues as bingo, raffles and boat taxation.
“If we can amend the constitution for a game of bingo, why can’t we amend it when it relates to the most important thing we do, keeping schools open,” he said. “If we can’t let the people decide on the process of keeping schools open, why do we have a process of amending the constitution.”
King also said that he is tired of hearing what he described as “rhetoric” from Democrats saying that the Legislature is violating separation of powers, while they do not argue that the judiciary does. Republicans have argued that the spending decisions from the court violate constitutional provisions granting lawmakers budget authority.
Other Republicans joined King’s argument with Sen. Mitch Holmes (R-St. John) saying that the court has overreached.
“We have a court that views itself as having absolute power. I don’t think anyone can argue against that,” he said. “The court sees itself as having absolute power. Our law says that the court can’t close schools and the court doesn’t care.”
Sen. Ralph Ostmeyer (R-Grinnell) said that lawmakers missed an opportunity eight years ago to try to get more conservatives on the Supreme Court, saying that Kansas is a “conservative state.” He noted that only one of the nine justices – Justice Caleb Stegell – is a conservative. The Supreme Court has been a battleground for several years between conservatives, moderates and liberals in the state with conservatives viewing the court has the state’s last bastion of liberal and moderate power. The court has come under by conservatives for school finance rulings, along with rulings against the death penalty. Lawmakers have failed in an attempt to change the court nominating process, which would remove a nominating committee dominated by the state bar from picking judicial finalists.
Other Republicans said the debate Friday was to allow the voters a voice.
“We will come up with a remedy where the people of Kansas will decide. I want to give the people of Kansas a say,” Sen. Tom Arpke (R-Salina) said. “This is important for the people to vote on. The judiciary has ignored the elected officials.”