Kansas Supreme Court referees high-stakes dispute between governor and attorney general
Kansas Attorney General Kris Kobach went toe-to-toe Friday with an attorney representing Kansas Gov. Laura Kelly in a dispute about what state official had authority to initiate or intervene in court cases on the state's behalf. (Photo by Tim Carpenter/Kansas Reflector)
TOPEKA — The extraordinary power struggle between Republican Attorney General Kris Kobach and Democratic Gov. Laura Kelly about control of Kansas’ participation in lawsuits landed Friday in the lap of a short-handed Kansas Supreme Court.
The drama began in September when Kobach sued Kelly over her refusal to disclose personal information to the U.S. government about 700,000 Kansas recipients of emergency food aid. Kobach’s case was tossed by a district court judge. In October, however, Kelly sued Kobach to reinforce her belief Kansas governors had authority to play a role in determining what lawsuits the state’s elected officials could attach themselves to.
Kobach asserted he held near-exclusive control of the state’s interaction with federal courts. Kelly argued the Kansas Constitution and state statute granted her a voice in legal issues.
“The attorney general has a pretty good-sized sandbox. The governor has a sandbox too, but it’s not as big. He’s not content with just playing in his sandbox. He wants to play in her sandbox as well,” said Stephen McAllister, who argued before the Supreme Court on behalf of the governor.
McAllister, who is a former U.S. attorney for Kansas, urged the Supreme Court to issue a decision that directed the attorney general to stop interfering with the governor’s participation in litigation entwined in her official duties. He said Kansas stood to lose millions of dollars in funding to Kansas programs if Kelly wasn’t allowed to stand up in court for state agencies, and beneficiaries of state programs, that fell under her jurisdiction.
“She does not seek to say she represents the sovereign?” asked Supreme Court Justice Caleb Stegall.
McAllister said that was correct, but abdication by Kobach in certain legal conflicts harmed Kansans and justified action by Kelly or another governor to step into a void.
Supreme Court Justice Dan Biles said he was puzzled why Kobach didn’t first go to district court in Kansas to gain traction for his claim Kelly had to stay out of disagreements with Kobach.
“This is a little messy,” Biles said. “I’m afraid what’s going on here is a battle of words between elected officials and like we’re being asked for an advisory opinion.”
Angels on a pin
Kobach, who personally argued the case before the Supreme Court, said justices should recognize the Kansas Constitution, state law and court precedent made clear the state’s attorney general was in charge of representing the state’s interests and the governor had no standing to independently pursue cases based on interpretations of the state’s broad interests.
“That’s what I was elected to do,” Kobach said. “We are maintaining that the governor has not been elected by the people to be our representative in court. She is the supreme executive, so she is in charge of all the executive departments under the governor, but she is not the state’s legal representative.”
Kobach said arguments put forth by McAllister in defense of Kelly’s position didn’t capture the reality of how state governments typically approached litigation.
“It’s like angels dancing on the head of a pin,” Kobach said. “They are trying to say, ‘Oh, but there’s a difference between representing the interests of my agency and representing the state of Kansas.’ Ninety-nine percent of the time, there is no difference.”
Stegall, an appointee of Republican Gov. Sam Brownback, posed a simple question: “Why can’t an executive agency, exclusively under the authority of the governor, take whatever legal position or action they want?”
Kobach said it would be confusing for the judicial system if the attorney general of Kansas set out a position on a legal matter and the governor waltzed into the courtroom and took the opposite position.
“Kansas must speak with one voice in court,” Kobach said. “It’s embarrassing when the governor comes in and says, ‘No, no. I speak for Kansans’ interests.’ Whereas in all the other states its the attorney general who is speaking in court. That’s the way it’s supposed to work.”
He said if Kelly had wanted the job of speaking on behalf of the state’s interests she ought to have completed a law degree and get elected attorney general rather than governor.
The Supreme Court agreed in November to expedite consideration of questions raised by Kelly v. Kobach. That opened the door to a resolution that avoided waiting for lower state courts to slog through the controversy.
Oral arguments in the case Friday were conducted with six justices rather than the normal seven, as retiring Justice Marla Luckert recused herself and wasn’t replaced temporarily. Chief Justice Eric Rosen, newly sworn in to that position, didn’t reveal when the state’s highest court would issue a decision.
Battle of the brief
In advance of oral arguments at the Judicial Center in Topeka, written briefs were filed by attorneys with Kobach and Kelly. Three other GOP statewide officeholders submitted their own brief to the justices, as did the Legislative Coordinating Council, which is dominated by House and Senate Republicans.
Justin Whitten, chief counsel for Kelly, said in a brief submitted to the Supreme Court that Kansas governors possessed authority within state law and constitutional authority to serve as the “supreme executive” of Kansas. Those duties, Whitten said, included determining the interests of Kansas agencies under her jurisdiction as governor. The attorney general lacked power to block a governor from participating in litigation that he or she believed had merit, Whitten said.
He said Kobach undermined his claim as the rightful arbitrator of the state’s role in lawsuits after repeatedly refusing Kelly’s request to bring or join cases in court.
“The governor’s limited goals in initiating this litigation are clear and simple. She is seeking this court’s confirmation of the powers the Kansas Constitution explicitly granted to her,” Whitten’s brief said.
In that document, Kelly said the attorney general misread state law “by conflating his legal duties with the governor and the Legislature’s power to determine the interests of the state.” It was folly for Kobach to claim it was important for the state to speak with one voice in appellate and federal courts, the governor’s lawyers said, because federal law recognized states could speak with more than one voice in federal court.
Kansas solicitor general Anthony Powell, in collaboration with Kobach, argued in a rebuttal brief that longstanding Kansas law “tethered to the Kansas Constitution, vest the attorney general with sole authority to represent the state in federal court.” In no way, Powell said, did executive power possessed by a Kansas governor allow Kelly to control or supplant Kobach.
Powell argued the attorney general’s position didn’t violate the Constitution, because that document established the attorney general as a “separately elected and independent officer,” whose powers were as broad as common law, except when modified by the Legislature.
“Governor Kelly’s argument reflects a fundamental misunderstanding of our system of government,” Powell said. “But, despite her arguments in this matter, Governor Kelly is not the king.”