This post originally appeared at The Kansas Progress, before this blog went live. Consequently the date in the title does not tally with the date on the post.
December 1st. Kansas Attorney General Stephen Six spent Monday morning in Washington DC where he argued on behalf of his state in the Supreme Court in the case of Kansas v. Colorado. This is (potentially) the final chapter in over a century’s disputes over water rights to the Arkansas River. The merits of who did what are long settled (Colorado took water it should not have and has now paid compensation) but this action popped up over a question of whether the costs (which Colorado must pay) of Kansas’ expert witnesses in the case should be capped at the Federal limit of $40 a day as specified by Congress. Kansas argues that since the case is being heard in the Court’s original jurisdiction and not on appeal, the Federal rule should not apply. Victory in this case is worth about $9m to Kansas.
Six squared off against his counterpart from Colorado John Suthers. While questioning is not dispositive of results it is obvious from the transcript that the Justices were more skeptical of Six’s arguments than those of Suthers and spent more time questioning him. At the same time there was obvious sympathy from some of the liberal justices towards Kansas since the $40 per day allowed does not come close to covering the true cost of an expert witness. Justice Breyer went furthest, hinting at his dissatisfaction with the way costs are capped by statute. Justices Kennedy and Stevens were concerned about what other fees (e.g. Attorney’s fees) might be recovered differently in future original jurisdiction cases if Kansas won. At the same time Chief Justice Roberts and Justice Scalia were most responsive to Kansas’ argument that since the case was in the Court’s original jurisdiction, Congress could not limit costs in such cases. The Justices were sensitive to their own independence in this area and Colorado did little to answer them.
Ultimately the case may come down to a question Justice Alito asked of Six fairly early on in proceedings where he asked what limit, if any, the court should set if Kansas won the argument, and why the Court should not follow the Federal rule on its own authority and set a limit of $40 per day itself. Six never managed to answer this question in a convincing way and a number of the other Justices returned to it asking him what was different about this case compared to non-original jurisdiction cases that would justify a limit higher than $40. In retrospect it seems surprising that for all the preparation put into the case that there was no answer to this question readily available to Six. So, should the Court subtly tweak Congress’s nose on this and rule that the Federal law in question does not apply here, Kansas may yet not recover its $9m.
Or the court might send that item back to the Special Master who has been trying this case since 1986 (and thought he was done) for a final, final report.
In other Kansas-related news the Supreme Court denied review of Kansas v. Smith, where the Kansas Supreme Court held that police may not seek consent to search a passenger’s purse if that is unrelated to the reasons for the traffic stop. The ruling from Topeka therefore stands. [H/T ScotusBlog]