Hellebust v. Brownback

• Decision Date: 30 June 1993
• Docket Number: Civ. A. No. 92-2374-JWL.
• Citation: 824 F. Supp. 1524
• Parties: Lynn HELLEBUST, John R. Craft, Kansas Natural Resource Council, and Common Cause of Kansas, Plaintiffs, v. Sam BROWNBACK, in his official capacity as Secretary of the Kansas State Board of Agriculture, and Jay Armstrong, Victor Krainbill, Alvin Epler, Altis Ferree, Thayne Larson, Ralph H. Rindt, F.E. Bliss, Lois Schlickau, Floyd O. Coen, Bob L. Moore, Anne Marie Worley, and Art Howell in their official capacities as members of the Kansas Board of Agriculture, Defendants.
• Court: U.S. District Court — District of Kansas

824 F. Supp. 1524

Lynn HELLEBUST, John R. Craft, Kansas Natural Resource Council, and Common Cause of Kansas, Plaintiffs, v. Sam BROWNBACK, in his official capacity as Secretary of the Kansas State Board of Agriculture, and Jay Armstrong, Victor Krainbill, Alvin Epler, Altis Ferree, Thayne Larson, Ralph H. Rindt, F.E. Bliss, Lois Schlickau, Floyd O. Coen, Bob L. Moore, Anne Marie Worley, and Art Howell in their official capacities as members of the Kansas Board of Agriculture, Defendants.

Civ. A. No. 92-2374-JWL.

United States District Court, D. Kansas.

June 30, 1993.

Donn J. Everett, Everett, Seaton, Miller & Bell, Manhattan, KS, William J. Craven, Lecompton, KS, for plaintiffs.

David D. Plinsky, Office of the Atty. Gen., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This court has found that the method by which the Kansas State Board of Agriculture ("KSBA") and the Secretary of the KSBA are selected violates the equal protection clause of the Fourteenth Amendment of the United States Constitution because the KSBA "exercises general governmental powers which affect the lives of all Kansans but its membership is selected by a narrowly limited voting process." Hellebust v. Brownback, 824 F.Supp. 1511 (D.Kan.1993). The matter of an appropriate remedy was the subject of a hearing held on June 30, 1993, following the submission of briefs by both sides and the passage of sufficient time for the Kansas Legislature to have addressed this matter had it so chosen.

The method of selection of the KSBA and the Secretary which was found to be unconstitutional is codified in K.S.A. §§ 74-502, 503 (1992). The defendants in this case, the members of the board and the Secretary of the KSBA, do not have the power to change those statutes. The members of the Kansas Legislature are not parties to this action and so those persons who could change the method by which the KSBA board members and Secretary are selected, by changing the statutes, are not before this court. Therefore, the remedy adopted by the court is, at least in part, provisional in nature because this court cannot, with the parties before it, order legislative changes which would provide full relief. The remedies ordered by the court will remain effective until the state of Kansas enacts legislation which passes constitutional scrutiny.¹

II. Remedies

A remedy selected by the court must address the plaintiffs' injury. See Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) ("The scope of the remedy is determined by the nature and extent of the constitutional violation.") The plaintiffs' injury is twofold: (1) the Secretary and the Board administer an unconstitutional election when selecting a new Secretary and board members, and (2) the KSBA governs the plaintiffs by exercising general governmental powers even though the Secretary and the members of the board of the KSBA are unconstitutionally elected.

On January 13, 1993, this court issued a preliminary injunction which enjoined the KSBA from holding elections until a final order was issued in this case. Hellebust v. Brownback, 812 F.Supp. 1136 (D.Kan.1993). The preliminary injunction addresses the first element of the plaintiffs' injury, the administration of an unconstitutional election. That injunction was continued in this court's order of May 7, 1993. Hellebust v. Brownback, 824 F.Supp. 1511 (D.Kan.1993). That injunction is now made permanent in order to restrain the KSBA from conducting unconstitutional elections until such time as the state of Kansas enacts legislation concerning the KSBA which passes constitutional scrutiny. The remainder of this order will consider remedies which address the plaintiffs' second injury, being governed and regulated by an unconstitutionally selected body.

The court has considered and rejected a number of remedies which are within its equitable powers and which might address the plaintiffs' injury. "Once a constitutional right and a violation have been shown, the scope of a District Court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent equitable remedies." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). In choosing a remedy, this court is guided by the admonition of the Supreme Court that "a district court should not pre-empt the legislative task nor intrude upon state policy any more than necessary." White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973). Therefore, the court has considered and rejected as too intrusive into state policy the possible remedies of blocking appropriations to the KSBA, stripping away general governmental authority from the defendants, convening a special session of the Kansas Legislature, or blocking any further legislative action until a remedial legislative plan is enacted which makes the administration of the KSBA constitutional. This court deeply respects traditional notions of federalism and fervently believes that judicial restraint calls for the tailoring of remedies of the most limited scope necessary to discharge its constitutional function. It acts here not because it relishes exercising the power but because it would be an abdication of its solemn responsibility if it were not to do so.

Bearing these considerations in mind, the remedy which the court has decided upon is twofold: (1) declare the terms of the members of the board and the Secretary to have expired, and (2) appoint the Governor of the state of Kansas, in his or her official capacity² as receiver for the Kansas State Board of Agriculture to serve until such time as the state devises a constitutional method for selection.³ This remedy specifically addresses the harm of general governmental powers being exercised by unconstitutionally selected officials without presuming to impose a permanent alternative procedure.

A. Terms of Defendants Expired

Because the court enjoined the election of new board members which was scheduled to take place on January 13, 1993, that election never occurred. Members of the board of the KSBA are elected to staggered three year terms. K.S.A. § 74-503 (1992). The terms of some of the members of the Board would have expired on January 13, 1993, unless reelected, except that the statute provides that a board member shall remain in that position "until their successors are elected and qualified." Id. The Secretary of the KSBA is elected for a two year term. Id. It is not known whether the current Secretary and which board members were up for reelection on January 13, 1993. The court can deal with both those defendants whose terms would have normally expired and those who continue to serve their regular term because "the scope of a District Court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). The court orders that the terms of those defendants whose positions were up for election on or about January 13, 1993 are expired. The offices of those defendants whose positions were not up for election on or about January 13, 1993 are declared vacant.

Although the court has not observed a case with a remedy exactly like this one ordered here, there is substantial precedent for federal courts setting aside state elections which violate constitutional requirements such as equal protection. Two of the most notable examples are Hamer v. Campbell, 358 F.2d 215, 221-22 (5th Cir.1966) and Bell v. Southwell, 376 F.2d 659, 664 (5th Cir.1967) in which the Fifth Circuit set aside two local elections in the 1960's because the plaintiffs showed that the elections were tainted by racial discrimination. Neither of those cases was reversed by the Supreme Court. In Hamer, like the present case, the plaintiffs complained that they had been deprived of the opportunity to vote for the local government rather than merely having their votes unconstitutionally diluted, the situation in most reapportionment cases.

The present remedy is not as drastic as the remedy which was utilized in Hamer and Bell. In both Hamer and Bell, the courts set aside elections in which the entire electorate had the opportunity to vote. The defendants in this action were elected by a limited electorate drawn from a few special organizations and groups. This remedy satisfies constitutional requirements.

B. Appointment of Receiver

The second element of the relief ordered by the court is that the Governor of the state of Kansas, in his or her official capacity, be appointed as receiver for the KSBA. This court has the inherent equitable powers to appoint such a receiver.

Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.... This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause. From the commencement of our Government, it has been exercised by the federal courts, when sitting in equity, by appointing, either with or without the consent of the parties, special masters, auditors, examiners, and commissioners.

Ex Parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920).

The appointment of a special master is also addressed by Rule 53 of the Federal Rules of Civil Procedure. Although this court appoints a receiver under its inherent equitable powers, it is guided by the provisions of Rule 53, which state that an order appointing a special master "shall be made only upon a showing that some exceptional condition requires it." Fed.R.Civ.P. 53(b). This court does not believe that judges should undertake to manage the day to day administration of a...