Brownback can try to cut all the funding he wants, but according to the Kansas constitution, he can’t eliminate the state supreme court. In fact, he doesn’t get to choose the Chief Justice of the state Supreme Court, and he can appoint the other judges only from a list selected by a nominating committee.
And since it’s the state’s supreme court that’s making all those pesky rulings, it won’t make any difference.
Possibly, though I am not sure that state courts are a necessary component of state government. We don’t know very much about the legal effect of the Guarantee Clause (the one that guarantees a republican form of government.) SCOTUS addressed its interpretation in Luther v. Borden, but said it was a political question. In layman’s terms, that means it is up to the “political branches” to interpret and enforce, in this case Congress.
Except for the US Supreme Court, Congress is the one that creates the judicial branch. The problem is that SCOTUS is very limited in what they have original jurisdiction in so one would think there HAS to be a lower Federal judiciary. But didn’t we recently have a similar thread when one of the wakadoodle Pubs wanted to pass a law that specifically banned the courts from hearing cases pertaining to the law?
If he does, the guy that’s picked up in a few days probably won’t have to. The jail will be full without regular bail hearings, early release applications, etc. to relieve the load.
How about the 6th Amendment of the US Constitution?
If there are no courts in Kansas then they either need to stop arresting people altogether or they will be in violation of that amendment (the 6th Amendment has been incorporated).
If you were a Counsel to a party who wanted to take this matter to the Federal Court, would this not be the argument that you would raise. That and perhaps 14 Amendment?
Presumably they will stop arresting people altogether, or at least they won’t hold anyone longer than is required for a probable cause hearing in Kansas. So there won’t be any criminal prosecutions in which the Sixth Amendment would attach. That’s (one reason) why this is a very stupid idea.
If I were counsel to such a party I would be throwing anything and everything at the wall and hoping something sticks. It’s a wholly unprecedented situation. I still think the best constitutional argument is the denial of due process to (putative) civil litigants, though that would depend on how law enforcement handles the situation. If they keep arresting people and stuffing them in jails with no access to the courts, that would be a clear Fourth Amendment violation.
Yes, what about the 14th’s guarantee of property and due process? If a person has a valid claim under state law under a contract or a property claim, an can’t go to state court to enforce it because the courts are closed, couldn’t that trigger a due process claim? The right not to be deprived o property without due process includes a state court that can hear and adjudicate the claim?
Not necessarily. After all, the state courts are courts of general jurisdiction. In an alternate world, where the First Congress didn’t pass the Judiciary Act, so no lower federal courts, then claims under federal laws could be adjudicated in the state courts if general jurisdiction.
The reason I make this suggestion is that’s what happened in Canada. Parliament was given the power to establish loser federal courts but chose not to do so, other than a very limited finance court.
The result was that almost all issues of federal law were decided in the provincial courts if federal jurisdiction for over a century, until Parliament finally created lower Federal Courts in 1970.
I find it very difficult to see any “Republican Form of government” where the Courts are not independant of the executive.
Generally, when we talk about 14th Amendment due process violations we are talking about property rights that are directly infringed by the state - say, cutting off Social Security benefits without a hearing. Off the top of my head, I can’t think of a procedural due process claim involving deprivation of a property right by a private party.
But in my hypothetical, the state law gives the aggrieved person a legal right to try to regain his property, but by closing the courts, the state has deprived him of the power to exercise that right. In essence, “no right without a remedy” is a due process claim: having given the aggrieved person a substantive right under state law, the state must give that person a way to exercise that right according to law, namely by the courts.
Okay, I’ll buy that.
In Canada, I believe those would be hoser federal courts.
Take off, eh?
Thought of a variant of the due process argument to bring it into the federal courts.
Due process assumes that laws governing a dispute will be set by the legislature, but those laws will be applied to the facts of a particular case by the courts. Cite Marshall: “it is emphatically the function of the courts to apply the law”. (My paraphrase.)
But, by threatening to defund the courts unless they rule the way the elected branches want, the legislative and executive branches are interfering with the constitutional role of the courts, by attempting to dictate the result.
That is a violation of due process, because the courts are being pressured to decide a case the way the elected branches want, rather than on the merits of the particular case.
(Note that this is essentially a separation of powers argument, but cast in terms of the right of the litigant to due process, to bring it within the 14th Amendment. I’m assuming that a pure separation of powers argument under the state constitution couldn’t be brought in federal court.)
Personally, I’m guessing bake sale or pledge drive.
That is so twentieth century. Gofundme or kickstarter.