Kansas Bar Ass'n v. Judges of the Third Judicial Dist.

• Decision Date: 15 December 2000
• Docket Number: No. 84,545.,84,545.
• Citation: 14 P.3d 1154,270 Kan. 489
• Parties: KANSAS BAR ASSOCIATION, JACK R. EULER, and JOEL R. EULER, Petitioners, v. THE JUDGES OF THE THIRD JUDICIAL DISTRICT, viz., HON. MARLA J. LUCKERT, CHIEF JUDGE, et al., Respondents.
• Court: Kansas Supreme Court

270 Kan. 489

14 P.3d 1154

KANSAS BAR ASSOCIATION, JACK R. EULER, and JOEL R. EULER, Petitioners, v. THE JUDGES OF THE THIRD JUDICIAL DISTRICT, viz., HON. MARLA J. LUCKERT, CHIEF JUDGE, et al., Respondents.

No. 84,545.

Supreme Court of Kansas.

Opinion filed December 15, 2000.

Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer LLP, of Topeka, argued the cause, and Steve S. Schwarm, of the same firm, was on the brief for petitioners.

M.J. Willoughby, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was on the brief for respondents.

Thomas D. Haney, of Fairchild, Haney & Buck, P.A., of Topeka, was on the amicus curiae brief for the Kansas Bankers Association and the Kansas Chamber of Commerce and Industry, Inc.

The opinion of the court was delivered by

LARSON, J.:

The Kansas Bar Association (KBA) and Jack and Joel Euler (the Eulers) petitioned this court for a writ of mandamus asking for two things: (1) a declaration that K.S.A. 1999 Supp. 61-2707(a) is unconstitutional; and (2) an order directing the Judges of the Third Judicial District (Judges) to prevent those who are not licensed attorneys from representing any party in a small claims proceeding.

The Judges filed a motion to dismiss. If neither the KBA nor the Eulers have standing to seek the remedy of mandamus or there is no justiciable case or controversy then the motion to dismiss must be granted.

The statute in issue is a portion of the Small Claims Procedure Act, K.S.A. 61-2701 et seq., which was first enacted in 1973 to foster simplicity of pleading and provide a forum for the speedy trial of small claims. K.S.A. 61-2705; K.S.A. 61-2712; see L. 1973, ch. 239. The Act is limited to recovery of money or personal property valued at $1,800 or less. K.S.A. 1999 Supp. 61-2703(a).

The petitioners' contentions relate directly to K.S.A. 61-2707(a), which prior to amendment in 1999, stated: "The trial of all actions shall be by the court, and no party in such action shall be represented by an attorney prior to judgment." This language appeared to conflict with the common-law rule that corporations could appear in court only by attorneys. An Attorney General's Opinion suggested the small claims statute abrogated the common-law rule and allowed corporations to appear in small claims court by a nonattorney agent. Att'y Gen. Op. 95-100.

Reflecting this sentiment, the statute was amended in 1999 by Senate Bill 97 as follows:

"The trial of all actions shall be by to the court, and except as provided in K S.A. 61-2714, and amendments thereto, no party in any such action shall be represented by an attorney prior to judgment. A party may appear by a full-time employee or officer or any person in a representative capacity so long as such person is not an attorney." L. 1999, ch. 145, § 2.

See K.S.A. 1999 Supp. 61-2707(a).

The KBA and the Eulers argue that the small claims statutes as amended in 1999 are unconstitutional because they allow nonlawyers to represent parties in small claims court, thus fostering the unauthorized practice of law and infringing on the right of the judicial branch to regulate the practice of law. This infringement, according to the KBA and the Eulers, violates the doctrine of separation of powers. We first consider the Judges' contention that petitioners do not have standing to seek mandamus because there is no justiciable case or controversy, rendering the petition nothing more than a request for an advisory opinion.

K.S.A. 60-801 states:

"Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law."

We further consider these rules regarding requests for writs of mandamus.

"Mandamus may not be invoked to control discretion. Mandamus does not enforce a right that is in substantial dispute. A party must be clearly entitled to the order sought before mandamus is proper." Link, Inc. v. City of Hays, 268 Kan. 372, 375, 997 P.2d 697 (2000). "Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked." State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 1025, 686 P.2d 171 (1984).

"`While mandamus will not ordinarily lie at the instance of a private citizen to compel the performance of a public duty, it has been held where an individual shows an injury or interest specific and peculiar to himself, and not one that he shares with the community in general, the remedy of mandamus and the other extraordinary remedies are available.'" Stephens v. Van Arsdale, 227 Kan. 676, 683, 608 P.2d 972 (1980).

"Whether or not a private individual has brought himself within the narrow limits of the well-established rule must be determined from the particular facts of each individual case." Mobil Oil Corporation v. McHenry, 200 Kan. 211, 243, 436 P.2d 982 (1968).

The Judges urge that the petitioners have failed to show an injury or interest specific and peculiar to themselves.

The petition states that the KBA brings this action "on behalf of itself and as a representative of its members who are admitted to the bar of this Court." Further, the petition states that Jack and Joel Euler "are members of the bar of this Court in good standing who are in the private practice of law in Northeastern Kansas," and "bring the action on behalf of themselves and all other practicing attorneys in Kansas to prevent the unauthorized practice of law." The petition states:

"The Plaintiffs allege that L. Kan. 1999, ch. 145, § 2 [`the statute'] permits the unauthorized practice of law. The statute is unconstitutional legislation which injures the public and the practice of law by the individual Plaintiffs and the attorneys they represent by permitting unauthorized competition with licensed members of the bar by persons not subject to the rules of this Court for the discipline of attorneys to act as attorneys in small claims proceedings."

The petition does not precisely state the nature of the injury claimed by the KBA and the Eulers. The petitioners allude to injury to the public and practicing lawyers stemming from the mere possibility of nonlicensed persons representing others in small claims court and the potential for competition between unlicenced individuals and licensed attorneys for small claims business. The KBA notes that it is consistent with its mission to protect litigants from incompetent representation, and more specifically, to protect nonlaw-trained citizens from the possibility of facing more experienced professional bill collectors or paralegals representing opposing parties in small claims court. The petitioners also suggest that the citizens of Kansas have been injured by the legislature's passage of an unconstitutional statute and its intrusion on the judicial branch's regulation of the practice of law.

The question becomes whether these alleged injuries confer standing upon the KBA and the Eulers. This court has considered the question of standing in the context of original actions in a number of cases.

In Dennis v. State Board of Barber Examiners, 174 Kan. 561, 257 P.2d 940 (1953), a group of barbers brought a petition for writ of mandamus asking this court to compel the State Board of Barber Examiners to investigate and hold hearings regarding a price schedule for barber work in order to protect public health and safety.

This court considered the threshold matter of whether petitioners had standing to bring the action. We held they did not and rejected the petition without reaching its merits, stating:

"Nothing would be gained by laboring the allegations of the petition in the case at bar. It suffices to say that pleading shows upon its face that the plaintiffs are seeking to compel the defendants to proceed to perform certain alleged public duties under a statute enacted for the protection of the public welfare, public health, and public safety in the exercise of the police power of the state, and that nowhere in such pleading does it appear that they have any interest in the subject matter in litigation different than that of the public generally. The fact they identify themselves in the petition as barbers in no way distinguishes them from other citizens in attempting to compel the defendants to comply with what they deem to be the requirements of a statute enacted for the purposes heretofore indicated." 174 Kan. at 565.

We followed Dennis in Rowlands v. State, 187 Kan. 174, 354 P.2d 674 (1960). Rowlands owned a bookstore in Lawrence. A university-run bookstore opened in the Memorial Union on campus. Rowlands brought an action in district court in the nature of quo warranto, arguing that the State's operation of the bookstore violated the constitutional prohibition against the State "carrying on any work of internal improvement." The district court dismissed the petition.

Our holding considered as a threshold matter whether Rowlands had the capacity to bring the action. Rowlands alleged his specific injury was being forced to compete with a State-run bookstore. We held:

"The fact that the plaintiff identifies himself as a college bookstore merchant in no way distinguishes him from other citizens who may have an interest in the question. He classes himself with `other businesses in Lawrence, Kansas.' Applying the rule to which this court has long adhered, it is clear that the plaintiff has no legal capacity to bring this action, and the motions to dismiss were properly sustained." 187 Kan. at 179.

The Judges point to Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960). There, an unincorporated trade association sought a writ of mandamus from the district court ordering the State and a construction company with which it had contracted to pay project laborers...