(Updated to include response from Kobach)
Gov. Laura Kelly’s administration is asking a judge to sanction the attorney general for trying to delay lifting of an injunction that barred transgender Kansans from changing gender markers on their driver’s licenses.
Lawyers for the Department of Revenue filed a motion in district court last week seeking sanctions against Attorney General Kris Kobach and Solicitor General Anthony Powell after they filed a request early this month asking for a delay in lifting the injunction.
Late last month, the Kansas Supreme Court upheld an appeal that reversed an injunction prohibiting gender marker changes as a legal dispute over the issue unfolded.
The Kelly administration lawyers said there is no authority to delay reversal of the injunction and the attorney general should know better than to ask a district court judge to overturn a decision handed down by an appeals court.
They accused the attorney general of trying an “end-run” around the Supreme Court and the Court of Appeals by attempting to delay lifting the injunction.
The attorney general sought the delay in district court while a judge resolved his request to require that the Kelly administration maintain a detailed and individualized record of all driver’s licenses that fail to reflect a person’s biological sex.
The attorney general said if the court found that SB 180 – known as the Women’s Bill of Rights – requires driver’s licenses to reflect a person’s biological sex at birth, then any newly issued or reissued license will need to be corrected.
The attorney general said the ability to make those corrections will depend on the Department of Revenue maintaining a detailed and individualized record of such licenses so they can be specifically and easily identified.
The Kelly administration lawyers say the motion brought by the attorney general was “presented for an improper purpose to harass, cause unnecessary delay and needlessly increase the cost of litigation…”
They said in court filings that the attorney general knows the Department of Revenue maintains those records because it’s been demonstrated throughout the litigation.
The Department of Revenue “has long maintained, and will continue to maintain, transaction records on driver’s license credential transactions…”
The lawyers for the department said Kobach’s request was duplicative of existing practices and nothing would change even if it was granted.
The attorney generally knows a court order mandating that Department of Revenue to do something it already does “is redundant and consequently only serves to harass and cause unnecessary delay,” the Kelly administration lawyers said.
They accuse Kobach of trying to circumvent a court of appeals ruling that reversed the injunction blocking the gender marker changes while a legal battle plays out in court.
The Kansas Supreme Court upheld the ruling when it opted not to hear the case.
“Petitioner is asking this court, a district court, to overturn the Kansas Court of Appeals’ decision,” the lawyers for the Department of Revenue argued.
“With Petitioner’s role as chief legal officer, it would be unfathomable for him to ignore the rudimentary rule that this court cannot overturn a Court of Appeals decision.”
The Kelly administration is seeking a sanction of $1 for having to respond to the attorney
general’s “harassing, unnecessary, and legally unsupported contentions.”
The Department of Revenue also requests the court to order remedial training for civil procedure and include an admonition to Kobach and Powell for their “unfounded request.”
Kobach ripped into the governor’s legal team.
“The attorneys representing the governor are showing an embarrassing lack of legal acumen,” Kobach said in a statement on Thursday.
“They evidently have no idea what the threshold is for sanctionable conduct.
“They also appear to be unaware that a district court can rule either way on the case in chief,” he said.
“They also betray their desire to change the sex on as many drivers licenses as quickly as possible,” he said.
“The governor’s team would rather score political points with the radical left than follow the will of the representatives of the people of Kansas.”
The agency’s lawyers noted in their motion that Kobach has previously engaged in “sanctionable conduct.”
“He has been sanctioned for misleading a court, for failing to follow court procedures
and rules, and for failing to properly supervise lawyers and non-lawyers,” they said.
The Department of Revenue lawyers pointed out that a federal judge sanctioned Kobach in 2018 for not following the rules of federal procedure when he defended a state law requiring proof of citizenship for registering to vote.
The judge in that case ordered Kobach to attend continuing education classes.
The judge also held Kobach in contempt for violating a court order requiring him to notify voters affected by a preliminary decision that blocked the citizenship requirements for anyone registering to vote at a driver’s license office.
The motions filed in the driver’s license case reflect heightening tensions between the attorney general and the governor’s administration in recent weeks.
Kobach recently brought a lawsuit trying to force the governor to turn over personal data for the federal food-assistance program to the Trump administration.
Kobach’s lawsuit was dismissed, but both sides traded sharp attacks in their legal filings as well as statements made to reporters.
The governor’s team accused the attorney general of engaging in “histrionics” and practicing “unsound” law” in the food-assistance case. The governor accused the attorney general of engaging in “low–rent political theater” and wasting taxpayer dollars.
Kobach accused the governor of defying the law and putting at risk millions of dollars that less-affluent Kansans depend on to purchase food. He referred to arguments she made defending her decision not to turn over the data as “lawless” and “absurd.”
Kobach also tried to stop the governor from joining a lawsuit challenging a regulatory clause that the Trump administration used to justify eliminating grants for public health, counterterrorism, transportation, infrastructure and education.
He accused the governor of seeking to “usurp” the role of the attorney general by suing on behalf of state.
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 was critical of the governor joining a lawsuit to force the U.S. Department of Agriculture to provide food-assistance benefits during the government shutdown.
“Gov. Kelly seems to think that she has the powers of the attorney general, even though Kansas law makes it quite clear that only the attorney general can sue on behalf of the state of Kansas,” Kobach said in a statement Tuesday.
“She will be kicked out of the lawsuit. Perhaps she should focus on doing the job that she was elected to do,” he said.
