In State v. Buser, No. 105,982, on September 11, 2014, Meryl Carver-Allmond argued a case at the KSC involving challenges to retroactive application of 2011 amendments to the Kansas Offender Registration Act. As of March 2015, the KSC had not issued a decision, reaching the time limits of the 2014 statute. On March 26, 2015, Ms. Carver-Allmond filed a motion asking the KSC to find the mandatory application of the 2014 statute an unconstitutional violation of the separation of powers. The state did not respond.
On July 1, 2015, the KSC granted Ms. Carver-Allmond's motion and issued an order (here) holding that K.S.A. 20-3301(c) is unconstitutional. In its sixteen-page order, the KSC reviewed the separation of powers doctrine in detail and agreed that attorneys are officers of the court and that legislative interference with an attorney's ethical duties:
Directing attorneys to ultimately compel the Supreme Court to release its decision by a date calculated by the legislature's formula is an inordinate degree of legislative control over the judicial power.The KSC agreed that expediting appeals is a valid objective, but that the statute in this case exceeded the legislative power:
while this apparent legislative objective [expediting appeals] is worthwhile, requiring attorneys to compel the court to release its decision within 30 days . . . in furtherance of that objective violates the separation of powers doctrine. The legislature cannot enforce an obligation of the judiciary that it owes solely to the people.So, as a result, the KSC held that the statute violated the separation of powers doctrine that is part of the Kansas Constitution:
In summary, through K.S.A. Supp. 20-3301(c)(2), the legislature directs attorneys to seek exprdited judicial findings by filing a joint request that seeks one of two unconstitutional remedies under subsection (c)(3). En route to that conclusion we necessarily have decided the legislature's mandatory court-deadline in subsection (c)(1) is also unconstitutional. Subsections (c)(1), (2), and (3) violate the separation of powers doctrine. . .
Without these subsections, the remainder of subsection (c) is meaningless. Accordingly, we grant Carver-Allmond's motion and relieve her of any purported duty to comply with subsection (c)(2).This is a helpful decision for several of us who practice in the KSC and who have pending cases.
Here is a blog post in the Topeka Capital-Journal reporting on the order and some reaction to it.
[Update: on July 14, 2015, the Attorney General filed a motion to withdraw the July 1, 2015 order.]
[Further update: on September 25, 2015, the KSC denied the state's motion to withdraw. Here is the KSC order.]