Hiett v. Brier

• Court: Kansas Court of Appeals
• Writing for the Court: PER CURIAM; PARKS
• Citation: Hiett v. Brier, 586 P.2d 55, 2 Kan.App.2d 610 (Kan. App. 1978)
• Decision Date: 02 November 1978
• Docket Number: No. 50515,50515
• Parties: Ralph J. HIETT, Appellant, v. Jack BRIER, Secretary of State, Curt Schneider, Attorney General of the State of Kansas, Shelby Smith, Lieutenant Governor of the State of Kansas, and, Mary Hope, Election Commissioner of Shawnee County, Kansas, Appellees.

Page 55

586 P.2d 55

2 Kan.App.2d 610

Ralph J. HIETT, Appellant, v. Jack BRIER, Secretary of State, Curt Schneider, Attorney General of the State of Kansas, Shelby Smith, Lieutenant Governor of the State of Kansas, and, Mary Hope, Election Commissioner of Shawnee County, Kansas, Appellees.

No. 50515.

Court of Appeals of Kansas.

Nov. 2, 1978.

Review Denied Dec. 1, 1978.

Fred W. Phelps, Jr., of Fred W. Phelps, Chartered, Topeka, for appellant.

Philip A. Harley, Asst. Atty. Gen., and Curt T. Schneider, Atty. Gen., for appellees Jack Brier, Secretary of State, Curt Schneider, Atty. Gen. of the State of Kansas, and Shelby Smith, Lieutenant Governor of the State of Kansas.

Frank L. Johnson, County Counselor, Topeka, for appellee Mary Hope, Election Commissioner of Shawnee County.

MEMORANDUM OPINION En banc.

PER CURIAM:

Plaintiff appeals from the order of dismissal entered in this action by the District Court of Shawnee County. The sole issue on appeal is whether the district court's dismissal was proper. Plaintiff's allegations of wrongful conduct by various electors or by the contest board are not before us for determination.

The action arises out of a primary election contest initiated by plaintiff, a candidate for nomination as the Democratic candidate for election to the Kansas House of Representatives from the 53rd District. In the primary election held on August 1, 1978, plaintiff lost to his opponent by fifteen (15) votes. Plaintiff filed timely written objection to the election with the contest board pursuant to K.S.A. 25-308, as amended. L.1978, ch. 138, § 20, pp. 615-616.

The contest board, comprised of the lieutenant governor, secretary of state and attorney general, met, heard testimony, received affidavits and considered the matter on August 29, September 7 and September 8. At its last meeting and with plaintiff in attendance by his counsel, the board overruled plaintiff's objection and assessed costs to plaintiff by unanimous vote. This final decision of the board was reduced to writing and filed with the secretary of state on September 28. It constituted final determination of all issues before the board.

The assessment of costs to plaintiff was made by the board pursuant to L.1978, ch. 138, § 20(E ). Plaintiff was notified by letter dated September 28 that the costs were in the amount of $185. His response was a letter dated October 3, which, among other things, demanded a breakdown of the costs. The secretary of state provided an itemization of the costs by letter dated October 10.

On October 16, 1978, twenty-two (22) days before the general election to be held November 7, plaintiff commenced this action by filing a petition in the district court. As explicitly stated in the verified petition, "the Plaintiff seeks relief in mandamus and injunction." A hearing was held on October 17 during which defendants orally moved to dismiss the petition for lack of jurisdiction and failure to state a cause of action upon which relief can be granted. The motion was reduced to writing on October 18 and set for hearing the next day. Also on October 18, plaintiff filed a "First Amendment to Petition" by which he alleged that the petition, "with this amendment, also is intended to serve as a notice of appeal pursuant to K.S.A. 60-2101(D )."

The parties filed memoranda, and oral arguments were heard on October 19. The court orally announced its decision the next day, October 20. In summary, the district court concluded it was without jurisdiction to hear the matter since plaintiff had not timely filed his action pursuant to L.1978, ch. 138, § 20(F ):

"All mandamus proceedings to compel an officer to certify and place upon the ballot any name or names, and all injunction proceedings to restrain an officer from certifying and placing upon the ballot any name or names, must be commenced not less than thirty (30) days before the election."

The court also concluded that an appeal pursuant to K.S.A. 60-2101(D ) was not available to plaintiff. The issue of the constitutionality of L.1978, ch. 138, § 20, raised in plaintiff's memorandum in opposition to the motion to dismiss was not expressly ruled on by the district court. On the same day, a judgment form was entered and plaintiff filed notice of appeal to this court.

On October 25, we heard oral arguments on plaintiff's motion to advance. The parties agreed to file briefs forthwith and oral argument was heard on November 1.

After having considered the briefs and arguments, we conclude that the district court decision should be affirmed. We have expedited our consideration of this case and the preparation of this opinion because of the imminence of the general election to be held November 7.

Plaintiff alleges the district court had jurisdiction for either of two reasons: (1) appellate jurisdiction pursuant to K.S.A. 60-2101(D ); or (2) jurisdiction by way of a properly filed mandamus and injunction action. We will deal with each contention separately.

The contest board created by L.1978, ch. 138, § 20, and its predecessor statutes, is administrative in nature and performs a quasi-judicial function. Miller v. Clark, 62 Kan. 278, 288, 62 P. 664 (1900); Allen v. Burrow, 69 Kan. 812, 814, 77 P. 555 (1904). Appellate jurisdiction of actions of administrative bodies is not inherent but must have some statutory basis. Miller v. Clark, 62 Kan. at 288, 62 P. 664; State ex rel. v. Unified School District, 218 Kan. 47, 50, 542 P.2d 664 (1975); Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978).

L.1978, ch. 138, § 20(C ), provides that the decision of the contest board "shall be final." Early Kansas cases have interpreted predecessor statutes having the same language to mean that the decision of the contest board is not subject to appellate review. Miller v. Clark, 62 Kan. at 281, 282, 62 P. 664; Allen v. Burrow, 69 Kan. at 818, 77 P. 555; Hay v. Keeshan, 83 Kan. 438, 439, 111 P. 436 (1910); State ex rel. v. Penner, 124 Kan. 285, 286-287, 259 P. 785 (1927); see also Thompson v. Pettijohn, 107 Kan. 548, 550, 192 P. 749 (1920). Since the above cases were decided, the statute has been amended. The language "shall be final" has remained unchanged. It is presumed that the legislature acted with full knowledge and information of the prior judicial interpretations of the predecessor statutes. Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976).

Although appellate review is not permitted, extraordinary remedies may be utilized to review decisions of the contest board which were induced by bad faith or the result of arbitrary acts showing wrongful conduct amounting to fraud, corruption or oppression (Miller v. Clark, 62 Kan. at 284, 62 P. 664; Allen v. Burrow, 69 Kan. at 820-821, 77 P. 555) or to compel the board to act where it refused to do so (Griffin v. Gesner, 78 Kan. 669, 97 P. 794 (1908)).

More recent cases are in accord, although they do not specifically deal with L.1978, ch. 138, § 20. It is now well established that if no appeal from an administrative decision is provided for, district court jurisdiction is limited to original actions to determine if the administrative body acted illegally, fraudulently or oppressively. Thompson v. Amis, 208 Kan. 658, 661, 493 P.2d 1259 (1972); State ex rel. v. Unified School District, 218 Kan. at 50, 542 P.2d 664; Brinson v. School District, 223 Kan. at 467, 576 P.2d 602. In Bush v. City of Wichita, 223 Kan. 651, Syl. P 2, 576 P.2d 1071, 1072 (1978), it was held:

"In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction."

Plaintiff argues he should be allowed to appeal the contest board decision under K.S.A. 60-2101(D ). The scope of review permissible under K.S.A. 60-2101(D ) is somewhat broader than that allowed when an original action is brought. Brinson v. School District, 223 Kan. at 469, 576 P.2d 602. On its face, K.S.A. 60-2101(D ) may seem controlling. It is not. K.S.A. 60-2101(D ) is a general statute and does not apply where the legislature has provided a special procedure as in L.1978, ch. 138, § 20. Specific statutes control over general statutes in the area of appellate procedure. In re Waterman, 212 Kan. 826, 833, 512 P.2d 466 (1973); Brinson v. School District, 223 Kan. at 467-468, 576 P.2d 602.

We conclude that the language of Miller v. Clark, 62 Kan. at 288, 62 P. at 667, is consistent with recent decisions and is controlling precedent:

". . . It may be conceded that this tribunal (contest board) is endowed with Quasi -judicial power. It is important that it act expeditiously, and to permit appeals or proceedings in error to be taken from its decisions would often defeat the purpose of its creation. The right of appeal is not an inherent one."

Even if appeal pursuant to K.S.A. 60-2101(D ) were available to plaintiff, he has not complied with its procedure for prosecution of an appeal. No notice of appeal was filed with the contest board as required by that statute.

Plaintiff's only remedy was to seek review of the contest board decision by extraordinary remedy. This he did. The district court determined it had no jurisdiction because the action was not timely filed pursuant to L.1978, ch. 138, § 20(F ). Plaintiff commenced this action for relief in mandamus and injunction on October 16, 1978, twenty-two (22) days before the general election on November 7. L.1978, ch. 138, § 20(F ), requires all such actions be commenced "not less than thirty (30) days before the election."

In construing L.1978, ch. 138, § 20(F ), it is proper to inquire into the legislative intent by examining the historical background of the statute, the objectives sought to be obtained, and the effect the statute may have under various suggested constructions. State ex rel....