Kansas Supreme Court hears oral arguments in Kelly v. Kobach case

Kansas Attorney General Kris Kobach and the legal team for Kansas Gov. Laura Kelly presented oral arguments to the Supreme Court in a case that could decide if the governor has authority to join legislation on her office’s behalf.

Kelly sued Kobach in October after Kobach filed an amicus brief, a legal document offering information or experience, in a lawsuit Kelly signed on as a party to. Kelly joined the suit, which is against the Trump administration over its collection of data from the Supplemental Nutrition Assistance Program, but Kobach’s brief said Kelly doesn’t have the right to enter a lawsuit representing Kansas.

“This case is about whether the Governor can intrude into the area where the Kansas Constitution says the Attorney General is the official who’s in charge, namely, litigating in court on behalf of Kansans,” Kobach told reporters after court adjourned.

The governor’s position in court is that she has a right to participate in legislation if it pertains to her duties as governor.

“What we’re simply asking for is that the governor be allowed to have a voice in litigation when the matters or the issues affect the executive branch and the agencies she’s in charge of,” said Stephen McAllister, an attorney for Kelly.

Kobach said the distinction between representing the state and representing the interest of Kansas’s executive agencies is usually nonexistent.

“They are trying to say there’s a difference between representing the interests of my agency and representing the state of Kansas. Ninety-nine percent of the time, there is no difference,” Kobach said.

The scope of Kelly’s authority was a point of contention. At the start of the hearing, McAllister conceded that their legal briefs “may not have always been completely clear.”

Kobach told the justices that the governor’s offices is retreating from the scope in its briefs, and they previously said they could direct the attorney general to sue and that they may litigate on behalf of the state.

Justices peppered both sides with questions throughout arguments. Justice Dan Biles questioned whether it could lead to too much power vested in the attorney general.

“Let’s assume the Department of Justice sues the Secretary of the (Kansas) Department of Children and Families in federal court over this SNAP business. Are you saying that you have the power as attorney general to go into that courtroom and confess judgment?” Biles asked.

They asked the governor’s counsel whether the matter is a “live controversy,” or an actual ongoing dispute rather than a hypothetical one.

“Would you concede that it is possible, hypothetically in cases, that the governor of any state in his or her official capacity would not have standing, it just depends on what’s the subject of the lawsuit,” Justice Caleb Stegall said. “I don’t see anything particularly nefarious about a different party saying this party over here doesn’t have standing.”

Biles questioned whether the matter couldn’t be resolved elsewhere.

“Is it really that big of a deal,” he said. “I don’t understand how we can have a Quo Warranto action that say the attorney general made a bad legal argument. And shouldn’t be able to make that legal argument,”

There’s no timeline for when the Kansas Supreme Court will have a final opinion in the case, but the Kelly administration was seeking a decision before a potential appeal in its SNAP case.

(This story was updated to add new information.)