(Updated to include comments from Kobach)
Gov. Laura Kelly on Friday took Attorney General Kris Kobach to court to prevent him from stepping on the governor’s executive powers to join litigation that she says protects Kansas from overreach of the Trump administration.
The lawsuit comes amid escalating legal tensions between the governor and the attorney general, marked by a motion the Kelly administration filed in another case to have Kobach and his top appellate lawyer sanctioned.
Kelly’s lawsuit asks the Kansas Supreme Court to resolve questions about whether the attorney general solely directs and controls litigation, an issue the attorney general first raised after the governor joined a lawsuit against the Trump administration.
Kobach’s office called the governor’s lawsuit an attempt at a “courtroom coup.”
He said it was the first time in Kansas history that a governor has gone to the Kansas Supreme Court seeking to take control of the state’s litigation.
In August, the attorney general filed a friend-of-the court brief in federal court in Massachusetts trying to block Kelly from participating in a lawsuit against the Trump administration over what she described as unprecedented and unlawful attempts to cut funding to state government.
He argued that Kelly did not have the authority to bring the lawsuit on behalf of Kansas along with a coalition of attorneys general from Democratic-led states.
He said only the attorney general can represent the state in federal court or any appeals court. And in any court, he said, the attorney general decides the state’s position.
He also criticized the governor this week for joining with 22 Democratic attorneys general and two governors to force the U.S. Department of Agriculture to provide food-assistance benefits during the government shutdown.
“Time and again, Attorney General Kobach’s blatant partisanship is on display, harming and embarrassing Kansas,” Kelly said in a statement.
“While he was quick to sue the previous presidential administration, alleging he would protect Kansans from federal overreach, he has not once followed through on that claim now that the Trump Administration has repeatedly done just that,” she said.
“Not only has the Attorney General’s willful ignorance undermined my administration’s efforts to protect Kansans, but it has also cost our state millions of dollars for essential programs and services,” she said.
“If the attorney general refuses to stand up for Kansas, at least Kansans can rest assured knowing that I will,” she said.
Kobach, meanwhile, cited specific provisions in Kansas law that gives the attorney general to control state litigation.
He points to language that says, “the attorney general shall appear for the state, and prosecute and defend any and all actions and proceedings… in which the state shall be interested or a party.”
He also highlighted another section of law that says “the attorney general … shall, when so appearing, control the state’s prosecution or defense.”
Kobach said the governor doesn’t understand the law.
““If the governor wants to run for the office of Attorney General, she has the right to do so. But she will need to go to law school first,” Kobach said in a statement.
“The laws of Kansas are crystal clear regarding who represents the state of Kansas in court and controls what legal positions are taken by the state of Kansas.
“This is not a close question. Governor Kelly is wasting the court’s time,” Kobach said.
The governor says the attorney general is wrong.
“He does not have the sole authority with respect to all litigation involving Kansas,” the governor argues in her lawsuit.
“Thus, on multiple fronts the attorney General is unlawfully interfering with and denying the governor’s authority to make litigation decisions for the benefit of Kansas.
“This is a dispute only this court can resolve.”
During a national news conference held by the Democratic Governors Association on Friday, Kelly said it was “never fun to have to fight internally” to provide for Kansans.
“We’re not backing down. We will continue to fight because it’s the right thing to do,” she said.
“I value the role of the attorney general,” she said.
“Ordinarily, the attorney general is the one who would be filing suits on behalf of the citizens, but in this case that’s not happening and so I’m stepping up to make sure that Kansas interests are represented,” she said.
In September, Kobach took Kelly to court to force her to turn over personal data for the federal food-assistance program to the Trump administration.
Kobach asked a judge to compel the governor to make the data available to the U.S. Department of Agriculture, which has been seeking the information from Kansas and other states for weeks. The judge dismissed the lawsuit in early October.
“Since the dismissal of his lawsuit, the attorney general has refused the governor’s requests and direction to participate in or initiate litigation on behalf of
Kansas,” she said.
The governor said Kobach has refused to join lawsuits to protect Kansas, including one brought by 22 states seeking to stop the Trump administration from imposing penalties if the state don’t turn over information sought by the U.S. Department of Agriculture.
A federal judge recently blocked the Trump administration from acting on warning letters threatening to withhold federal money for food assistance from states that refused to turn over information sought by the agency.
“He recently made clear that his view is that he alone has the constitutional authority over
all litigation involving Kansas and that he will refuse to pursue all requests the governor has made and may make in the future,” the lawsuit said.
