Kansas Legislature’s leaders, elected state officers challenge Gov. Laura Kelly’s perspective

TOPEKA — Gov. Laura Kelly and Attorney General Kris Kobach filed scorched-earth briefs outlining their disagreement on who possessed authority to advance federal litigation on behalf of the state of Kansas.

The ruckus headed to the Kansas Supreme Court was framed by Kelly and Kobach as a question of law involving interpretation of constitutional mandate and statutory power. Kobach and Kelly inflamed their feud by filing lawsuits against each other.

The turf war prompted a brief from the Kansas Legislative Coordinating Council, which is a committee of the Legislature’s top Republican and Democratic leaders, as well as one on behalf of Republican Secretary of State Scott Schwab, state Treasurer Steven Johnson and Insurance Commissioner Vicki Schmidt.

This political clash between the Democratic governor and Republican attorney general is scheduled for oral argument before the state Supreme Court on Jan. 16.

Justin Whitten, chief counsel to Kelly, and Stephen McAllister, an attorney for the governor, said in a brief filed two days before Christmas that Kelly didn’t seek to control the attorney general, who the governor recognized held substantial common law power in Kansas. However, Kelly’s attorneys maintained the governor had authority as the state’s “supreme executive” to have her voice heard in federal litigation deemed to be in the interest of Kansans.

Whitten said Kansas court precedent affirmed the governor and the Legislature could direct the attorney general to join litigation, and the attorney general could refuse only if the request was unethical.

“She is not seeking to be the sole voice or the gatekeeper. She wants her voice, the voice which the Kansas Constitution bestows on her for the benefit of Kansas,” Whitten said. “She is not claiming the attorney general must always do her bidding, nor any other statewide elected official. They remain free to perform their duties as they see fit. But they cannot interfere with or prevent the governor from doing the same. Just because the attorney general stands down does not mean the governor lacks the authority to stand up for Kansas.”

Whitten said neither Kansas law nor history supported “the attorney general’s kingly gatekeeper theory.” If the attorney general prevailed, he said, Kobach’s sole control of the state’s litigation interests would result in unchecked power.

“The Kansas Constitution creates neither queens nor kings,” he said. “Quite the contrary, it purposely distributes power among numerous entities and officials.”

In the past, Kelly requested Kobach join multistate lawsuits challenging federal government actions, but the attorney general refused. Kelly was in favor of lawsuits against the administration of President Donald Trump related to federal funding of education, public health and food security.

Kelly sought to block disclosure to federal officials the personal information on Kansans who received aid under SNAP, or the Supplemental Nutrition Assistance Program.

Whitten expressed frustration with Kobach’s claim that he alone should harness power to decide what federal lawsuits were worthy of the state’s backing. He noted Kobach had in the past attached Kansas to more than a dozen controversial lawsuits challenging President Joe Biden.

“The attorney general seeks to have his cake and eat it,” Whitten said. “He has exploited and touted his ability to bring and join partisan-motivated lawsuits to challenge federal laws he does not like. But when the governor seeks to join a challenge to federal laws that will harm tens of thousands of Kansans, he balks because the lawsuits are ‘meritless.’ ”

He said the attorney general’s attempt to reserve to himself the power to divine the state’s interests was a “guise for the attorney general to pursue his own partisan and political interests.”

Breathtaking theory

Kobach and Anthony Powell, who serves as the state solicitor general under Kobach, shared authorship of a brief declaring Kansas law granted the attorney general control of decisions to sue on behalf of the state in federal court.

Powell said Kelly’s role as governor was limited to asking the attorney general to appear on behalf of the state. Kansas statute couldn’t deliver to Kelly the “litigation authority she desperately wants,” he said.

“Governor Kelly brazenly asks this (state Supreme) Court to ignore the structure of the Kansas Constitution, the common law, 16 decades of Kansas history and this court’s many precedents to argue that she can control or supplant the attorney general in his exclusive legal representation of the state,” Powell said.

Powell said Kelly’s “breathtaking theory — that the governor somehow has ultimate control over any executive branch officer and their duties — is precisely the model of a unitary executive. Her theory is radical and wrong, both historically and legally.”

Powell said Kelly’s claim that supreme executive power entitled her to direct the attorney general to bring federal lawsuits ignored plain language of the state Constitution. Framers chose not to make the Kansas attorney general an appointed official subject to a governor’s direct control, he said.

“Their deliberate choice created independence and checks-and-balances within the executive branch,” Powell said. “The attorney general’s independent role in representing the state in litigation is a purposeful diffusion of authority that helps ensure electoral accountability.”

Powell said Kelly was asking the state Supreme Court to “obliterate that equilibrium based on her assertion that her election was effectively a coronation, giving her supremacy over any other executive branch officer.”

The potential of the governor and attorney general standing on opposing sides of a federal court case would provoke confusion, Powell said.

“If the governor can sue on behalf of the state, can the attorney general then appear and dismiss the case, or vice versa?” he said.

Other voices

In mid-December, attorneys Edward Greim and Matthew Mueller filed a legal brief with the state Supreme Court on behalf of the Legislative Coordinating Council.

“This case is no mere executive-branch turf war,” Greim said. “True, all that need be resolved is whether federal litigation on behalf of the state is ultimately controlled by the attorney general or governor — or by some awkward mix of both.”

He said state statute resolved the issue in favor of the Republican attorney general. Kelly’s argument was tied to her perspective of supreme executive power, he said, but acceptance of her theory would require reversal of decades of state court precedent.

For Kelly to prevail on the question of federal litigation, he said, the state Supreme Court would have to allow redistribution to the governor the Legislature’s power to engage in lawmaking.

“It would pull into the governor’s powerful embrace all law enforcement and litigation functions, necessarily including district attorneys and local prosecutions. It would apply, too, to the Legislature’s longstanding apportionment of executive powers among other constitutional officers. The governor would reign supreme,” Greim said.

Brant Laue, a Topeka attorney who prepared the brief submitted by the elected insurance commissioner, secretary of state and state treasurer, echoed arguments shared by the LCC and Kobach.

He said the state Constitution and Kansas law guaranteed an executive branch structure that was fractured among separately elected state officials.

“The governor of Kansas is not imbued with King-like executive powers over all matters they deem to be under their executive control,” he said. “The governor’s contrary arguments in this case must surely give pause to the state’s other executive officials: Will the governor’s next contention be that she can overrule the actions of the commissioner on matters of insurance or securities? Or perhaps she can supplant the role of the elected State Board of Education on matters of public education?”

“The answer to all of these alarming potential assertions of gubernatorial authority has to be a resounding “no,” but the governor’s positions in this case cast doubt on whether she would be so restrained in her assertion of power,” he said.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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