Ambrosier v. Brownback, No. 115,982

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Beier, J.
Citation375 P.3d 1007,304 Kan. 907
Parties Bradley E. Ambrosier, Chief Judge, Kansas 26th Judicial District; Linda P. Gilmore, District Judge; and Clinton B. Peterson, District Judge, Petitioners, v. Sam Brownback, Governor of the State of Kansas, Respondent.
Docket NumberNo. 115,982
Decision Date29 July 2016

304 Kan. 907
375 P.3d 1007

Bradley E. Ambrosier, Chief Judge, Kansas 26th Judicial District; Linda P. Gilmore, District Judge; and Clinton B. Peterson, District Judge, Petitioners,
v.
Sam Brownback, Governor of the State of Kansas, Respondent.

No. 115,982

Supreme Court of Kansas.

Opinion filed July 29, 2016.


Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, were on the petition for petitioners.

Brant M. Laue, of the office of the Governor, was on the response for respondent.

The opinion of the court was delivered by Beier, J.:

This original mandamus action brought by the chief judge and two district court judges of the 26th Judicial District of Kansas against Governor Sam Brownback asks this court to compel the governor to appoint an interim district magistrate judge immediately under the authority of K.S.A. 2015 Supp. 25–312a.

We hold that a 90–day time limit set out in the statute is directory rather than mandatory under our precedent. This means that the timing of the governor's appointment is discretionary rather than ministerial. Mandamus cannot be invoked to compel a discretionary act. The governor may therefore, consistent with his stated intention, wait for the result of the primary election on August 2, 2016, before he appoints the magistrate judge sought by petitioners.

Factual and Procedural Background

District Magistrate Judge Tommy B. Webb was one of five magistrates in the 26th Judicial District until his retirement on February

304 Kan. 908

19, 2016. The governor received statutorily required notice of Judge Webb's planned departure from the bench on February 5, 2016. See K.S.A. 2015 Supp. 25–312a (clerk to provide notice of vacancy).

The governor informed Chief Judge Bradley E. Ambrosier that day that the governor was accepting applications to fill the vacancy and that an interim magistrate judge would be appointed within the 90–day period prescribed in K.S.A. 2015 Supp. 25–312a.

After receiving applications, the governor wrote a letter to the applicants dated May 25, 2016, i.e. , after expiration of the 90 days. The letter stated:

“This is to inform you that I have decided not to make an appointment to the position at this time. Instead, I will defer to the voters of Haskell County, who will have the opportunity to vote on the position in the August 2nd primary election.

“The filing deadline to participate in the election for this position is June 1.”
375 P.3d 1009

Counsel for petitioners contacted the governor's office on June 13, 2016, and the governor's office confirmed the governor's intention to “revisit” the vacancy after the primary election.

Chief Judge Ambrosier, District Judge Linda P. Gilmore, and District Judge Clinton B. Peterson filed this petition for writ of mandamus on June 15, 2016. At the time, four Republican candidates had filed for election to the vacant magistrate judge position. Those candidates will be on the ballot in the primary election on August 2.

The petition specifically seeks a writ requiring the governor to “immediately appoint an interim district magistrate judge for Haskell County.” Petitioners allege the governor “has failed, and in fact refused, to appoint a successor district magistrate judge, in violation of [his] duty” under K.S.A. 2015 Supp. 25–312a, which states that “[a]ny appointment made by the governor ... shall be made within 90 days following receipt of notice from the clerk of the supreme court.” The petitioners also seek reimbursement of their reasonable attorney fees.

This court ordered the governor to respond to the petition, which he did on July 11, 2016. The governor advances four arguments on the merits: (1) the 90–day time limit is directory rather than mandatory; (2) his general appointment duty is discretionary

304 Kan. 909

rather than ministerial; (3) the relief sought by petitioners would violate the separation of powers; and (4) dismissal is appropriate under the doctrine of constitutional avoidance.

Discussion

Because, as detailed below, we decide this case in the governor's favor on the basis of his first argument, we need not reach, and express no opinion on the validity of, his remaining arguments. Petitioners' request for attorney fees is rendered moot, and we will not address it.

Before turning to the merits of the governor's first argument, we observe that the parties do not appear to contest the advisability of this court's exercise of discretionary concurrent jurisdiction in this case or the petitioners' standing to bring this action. Given this lack of controversy, we touch upon these two preliminary considerations only briefly. See Peterson v. Ferrell , 302 Kan. 99, 102–03, 349 P.3d 1269 (2015) (subject matter jurisdiction, including component of standing, may be raised at any time, on court's own initiative).

Article 3, § 3 of the Kansas Constitution grants original jurisdiction in proceedings in mandamus to the Supreme Court. This jurisdiction is discretionary and concurrent; the writ also may be sought in lower courts. See State v. Becker , 264 Kan. 804, 807, 958 P.2d 627 (1998) ; see also K.S.A. 60–801 et seq . ; Manhattan Buildings, Inc. v. Hurley , 231 Kan. 20, 26, 643 P.2d 87 (1982). To support an original action in this court, a petitioner is required to state “the reason why the action is brought in the appellate court instead of in the district court.” Kansas Supreme Court Rule 9.01(b) (2015 Kan. Ct. R. Annot. 88); see Mobil Oil Corporation v. McHenry , 200 Kan. 211, 242, 436 P.2d 982 (1968). Petitioners have done so here. They assert that the delay inherent in beginning this litigation in district court and the statewide importance of the petition's subject matter justify its filing in the Supreme Court rather than in Shawnee County District Court.

Both of petitioners' points are well taken. We have previously considered judicial economy, the need for speedy adjudication of an issue, and avoidance of needless appeals when evaluating whether to exercise discretionary, concurrent jurisdiction over an original action. See

304 Kan. 910

State ex rel. Stephan v. Kansas House of Representa tives , 236 Kan. 45, 53, 687 P.2d 622 (1984) (“Without question, if this court declines to exercise jurisdiction in this action, it will be faced with the identical issue in a subsequent appeal from an action before the district court.”); see also Long v. Board of Wyandotte County Comm'rs , 254 Kan. 207, 212, 864 P.2d 724 (1993) (“It is only where an issue of law affects public officials, presents an issue of great public importance and significant state interest, and requires a speedy adjudication that mandamus is an appropriate and proper means to decide the issue.”);

375 P.3d 1010

State, ex rel., Smith v. State Highway Comm. , 132 Kan. 327, 334–35, 295 P. 986 (1931) (“The use of mandamus to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties is common in this state.”). In addition, this case will define a legislatively imposed duty of the governor, a constitutional officer and the leader of the executive branch of state government. The governor's timely performance of the duty at issue, as petitioners emphasize, affects the function, fairness, and efficiency of the coequal judicial branch in its service to Kansas citizens. This case thus presents an important public question of statewide importance appropriate for this court's attention in the first instance. See State ex rel. Stephan v. Finney , 251 Kan. 559, 568, 836 P.2d 1169 (1992) (interpretation of governor's constitutional authority appropriate for original action filed in Supreme Court); see also Manhattan Bldgs. , 231 Kan. 20, Syl. ¶ 4, 643 P.2d 87 (mandamus “proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business”).

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19 practice notes
  • In re Davis, No. 118,410
    • United States
    • Court of Appeals of Kansas
    • June 8, 2018
    ...in K.S.A. 2017 Supp. 22-3001(c)(2) confers a legal right on a party. This was also 423 P.3d 1054the case in Ambrosier v. Brownback , 304 Kan. 907, 375 P.3d 1007 (2016). There, the Kansas Supreme Court examined a provision in a statute which stated: " ‘Any appointment made by the governor ........
  • In re Bowman, No. 119,270
    • United States
    • United States State Supreme Court of Kansas
    • May 17, 2019
    ...construction such as canons of construction and legislative history to determine the Legislature's intent. Ambrosier v. Brownback , 304 Kan. 907, 911, 375 P.3d 1007 (2016). We review a district judge's decision to grant a mistrial for abuse of discretion. State v. Barlett , 308 Kan. 78, 88,......
  • State v. Fleming, No. 112,549
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...words, and only "[i]f the language is less than clear or is ambiguous, [do] we move to statutory construction." Ambrosier v. Brownback , 304 Kan. 907, 911, 375 P.3d 1007 (2016). If a statute is not ambiguous, we do not examine "legislative history, background considerations that speak to le......
  • State v. Marinelli, No. 111,227
    • United States
    • United States State Supreme Court of Kansas
    • April 13, 2018
    ...its "meaning is not plain," and "statutory construction rather than statutory interpretation is necessary." Ambrosier v. Brownback , 304 Kan. 907, 912, 375 P.3d 1007 (2016). Statutory construction is a question of law. 304 Kan. at 911, 375 P.3d 1007. Discussion The Legislature modified K.S.......
  • Request a trial to view additional results
19 cases
  • In re Davis, No. 118,410
    • United States
    • Court of Appeals of Kansas
    • June 8, 2018
    ...in K.S.A. 2017 Supp. 22-3001(c)(2) confers a legal right on a party. This was also 423 P.3d 1054the case in Ambrosier v. Brownback , 304 Kan. 907, 375 P.3d 1007 (2016). There, the Kansas Supreme Court examined a provision in a statute which stated: " ‘Any appointment made by the governor ........
  • In re Bowman, No. 119,270
    • United States
    • United States State Supreme Court of Kansas
    • May 17, 2019
    ...construction such as canons of construction and legislative history to determine the Legislature's intent. Ambrosier v. Brownback , 304 Kan. 907, 911, 375 P.3d 1007 (2016). We review a district judge's decision to grant a mistrial for abuse of discretion. State v. Barlett , 308 Kan. 78, 88,......
  • State v. Fleming, No. 112,549
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...words, and only "[i]f the language is less than clear or is ambiguous, [do] we move to statutory construction." Ambrosier v. Brownback , 304 Kan. 907, 911, 375 P.3d 1007 (2016). If a statute is not ambiguous, we do not examine "legislative history, background considerations that speak to le......
  • State v. Marinelli, No. 111,227
    • United States
    • United States State Supreme Court of Kansas
    • April 13, 2018
    ...its "meaning is not plain," and "statutory construction rather than statutory interpretation is necessary." Ambrosier v. Brownback , 304 Kan. 907, 912, 375 P.3d 1007 (2016). Statutory construction is a question of law. 304 Kan. at 911, 375 P.3d 1007. Discussion The Legislature modified K.S.......
  • Request a trial to view additional results

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