TOPEKA (CN) – The Kansas Legislature violated the separation of powers doctrine when it directed state Attorney Gen. Paul Morrison to file a lawsuit in order to trigger provisions of the Funeral Privacy Act, the state high court ruled.
In 2007 the Legislature passed the Funeral Picketing Act, now amended as the Funeral Privacy Act, containing regulations on where and when funeral protests could take place. Although legislators repealed the Funeral Picketing Act, they provided that provisions of the Funeral Privacy Act would not go into effect “unless and until” a court deemed them constitutional.
To that end, the Legislature told Morrison to file suit to trigger the provisions.
But Morrison filed a different lawsuit: He challenged the constitutionality of the so-called “judicial trigger” provision, claiming legislators exceeded their authority by ordering him to file a lawsuit that he believed would seek an unconstitutional remedy. He further claimed that the action they wanted him to file would require a court to advise the Legislature on whether the provisions are constitutional and should become operative – a power the court does not have.
Morrison requested an order severing the judicial trigger provision from the Kansas Funeral Privacy Act.
The state high court agreed that the judicial trigger provision is unconstitutional and exceeded the Legislature’s powers, but said it could not be severed from the act because it was clearly the Legislature’s intent.
“Activation under any other circumstances would violate the express statement of the Legislature, broaden the scope of the Kansas Funeral Privacy Act in a manner not authorized by the Legislature, and violate the separation of powers doctrine,” Justice Luckert wrote.