(Updated to include comment from Senate president)
Gov. Laura Kelly on Friday asked a question that will transcend her administration.
She asked the Kansas Supreme Court to decide a legal dispute with the attorney general over who decides the state’s place in litigation.
Kelly filed a lawsuit against Attorney General Kris Kobach asking the Supreme Court to resolve questions about whether he solely directs and controls litigation.
The answer to that question – if the court hears the case – will likely resolve a major legal divide over executive power and how far it extends control over state legal matters.
A decision on the matter will reach well beyond Kelly to whoever succeeds her in 2027.
“This is a dispute about executive power under the Kansas Constitution,” Kelly said in court filings Friday.
The governor said the case presents “urgent” and “substantial” issues for Kansas.
The governor’s lawyers say that under the Kansas Constitution, the governor alone holds the “supreme executive” power and is responsible for the “enforcement” of laws, empowering her with the authority to initiate and join litigation.
“The governor’s constitutionally created and textually explicit supreme executive
power is not frivolous, meaningless constitutional language,” they said.
“It gives her both the authority and the duty to protect the interests of Kansas through litigation,” the governor’s legal team argued.
Kobach has countered with specific language in the law that he says give him control over state litigation.
Candidates for governor started weighing in shortly after Kelly announced Friday morning that she had filed the lawsuit.
Secretary of State Scott Schwab, one of the major Republican candidates running for the governor, was first out of the box on Friday to respond to the lawsuit.
He and Senate President Ty Masterson took the hardest position among Republican candidates running for governor.
Schwab said the governor was out of bounds when she sued the attorney general to gain control over state litigation.
“The governor’s actions are an overstep of the authority granted by the Legislature to the A.G.,” Schwab said in a statement Friday.
Using the governor’s logic, Schwab said that the idea that the governor is the “supreme executive of the state” would mean she could also take over the administration of elections and override the secretary of state at will.
“We have separate powers, and this is out of bounds,” he said.
Masterson took a similar tone.
“Governor Kelly’s lawsuit against AG Kobach is a blatant overreach that ignores the attorney general’s clear statutory authority to control state litigation,” Masterson said in a statement.
“This is not about protecting Kansans. It is about expanding executive power and punishing Kobach for enforcing the law,” Masterson said.
“I stand with Kris Kobach. The Attorney General, not the governor, is the state’s chief legal officer. As Senate President and candidate for governor, I will defend our constitutional balance and work with, not against, our AG.”
Democrat state Sen. Cindy Holscher of Overland Park, one of two major Democrats running for governor, backed Kelly in the legal dispute with the governor.
“Time and again, Kobach has proved he is an extremist who is more interested in scoring political points than standing up for Kansans,”Holscher said in a statement.
“Gov. Kelly’s lawsuit is justified.”
Democratic state Sen. Ethan Corson of Fairway, the other major Democratic candidate for governor, was not available for comment Friday
Former Republican Gov. Jeff Colyer would not comment on the lawsuit, saying that his legal adviser indicated he could inherit the case if he’s elected governor.
Republican Johnson County businessman Philip Sarnecki criticized the lawsuit, but didn’t comment on the position that Kobach has staked out.
“Instead of wasting taxpayer dollars suing political opponents, Laura Kelly should call her Democrat friends in DC to end the Schumer shutdown and reopen the government,” Sarnecki said in a statement.
Insurance Commissioner Vicki Schmidt spelled out the attorney general’s role this way.
“This is beyond any individual issue, this is about the fundamental roles of two elected officials,” Schmidt said in a statement.
“The Attorney General represents the state in all legal matters, including those involving other executive offices,” she said.
“If governor, I will work with the attorney general, just as I have with this and the previous attorney general as insurance Commissioner, fighting insurance and securities fraud,” she said.
Republican businesswoman Joy Eakins campaign had not yet responded to the news of the lawsuit by late Friday.
