Leek v. Theis, 47885

• Court: United States State Supreme Court of Kansas
• Citation: 539 P.2d 304,217 Kan. 784
• Docket Number: No. 47885,47885
• Parties: Carolee LEEK, Plaintiff, v. Franklin Riddle THEIS, Defendant, State of Kansas ex rel. Curt T. Schneider, Attorney General, Defendant-Intervenor.
• Decision Date: 17 July 1975

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539 P.2d 304 217 Kan. 784 Carolee LEEK, Plaintiff,
v.
Franklin Riddle THEIS, Defendant,
State of Kansas ex rel. Curt T. Schneider, Attorney General,
Defendant-Intervenor. No. 47885. Supreme Court of Kansas. July 17, 1975.

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Syllabus by the Court

1. The power of the governor to make a valid appointment to an office or position of membership on an agency created by the legislature does not arise until there is a vacancy in fact in the office or position to be filled. An incumbent's title, if valid, cannot be extinguished or affected by the governor's erroneous judgment that the office is vacant.

2. Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.

3. The Constitution of the State of Kansas limits rather than confers power, and where a statute is attacked as unconstitutional the question to be determined is not whether its provisions are authorized by the constitution, but whether they are prohibited by it.

4. The legislature is authorized by the Constitution of Kansas to provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in the constitution.

5. The only power the governor has to make official appointments is that conferred upon him by specific constitutional or statutory provisions.

6. A power of appointment is not an exclusive function of the executive, nor has it ever been so considered in Kansas.

7. All governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions.

8. The general power of appointment to public office under the Kansas Constitution is not an exclusive function of the executive, and the exercise of the power of appointment is not inherently an executive function. Within constitutional limits the legislature, as representative of the people, can vest the power in its discretion.

9. Like the Constitution of the United States, the Constitution of Kansas contains no express provision requiring the [217 Kan. 785] separation of powers, but all decisions of this court have taken for granted the constitutional doctrine of separation of powers between the three departments of the state government-legislative, executive and judicial.

10. Despite the excellent theoretical framework which various cases have constructed, this court has held the separation of powers of government has never existed in pure form except in political theory. When an act is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented.

11. The creation of various offices and departments of government not otherwise provided for in the Kansas Constitution is a legislative function. It is also a legislative function to determine the qualifications of the officers and by whom they shall be appointed and in what manner they shall be appointed. The Kansas Constitution contains no limitation on who may be appointed, and there is no constitutional restriction on the legislature exercising its power as it shall see fit.

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12. The senatorial confirmation of an appointment of a public officer to a public office is to be distinguished from the appointment itself, for the senate in confirming the appointment does not in any sense choose the appointee.

13. Due process considerations mandate that when an interest involving life, liberty and property rights protected by the Fourteenth Amendment are implicated, the right to some kind of a prior hearing is paramount.

14. The type of property interest encompassed within the due process clause of the Fourteenth Amendment must be a vested right.

15. Under Kansas law the incumbent to a public office enjoys no property or vested interest in public office.

16. Office-holding is a political privilege, and the matter of appointment to office is not affected by the Fourteenth Amendment or other provision of the federal constitution.

17. An attack made by an appointee of the governor to a position of membership on the Kansas adult authority upon the failure of thesenate to conduct a hearing in rejecting his appointment presents a nonjusticiable political question.

18. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or lack of judicially discoverable and manageable standards for resolving it; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate [217 Kan. 786] branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

19. The Kansas Constitution has committed to each house of the legislature the right to be the sole judge of its procedure. For the court to involve itself in determining the advisability and wisdom of the senate's procedure, where an appointee of the governor is not afforded a hearing in confirmation proceedings conducted by the senate, would result in the court expressing lack of the respect due a coordinate branch of government.

20. In an original action in quo warranto the constitutional validity of a requirement for senatorial approval or rejection of a gubernatorial appointment in K.S.A. 22-3707, creating the Kansas adult authority, is challenged and it is held: the senate may lawfully non-confirm and reject the appointment of a member to the Kansas adult authority by the governor.

Charles N. Henson of Edison, Lewis, Porter & Haynes, Topeka, argued the cause, and was on the brief for plaintiff.

Edward G. Collister, Jr., of Collister & Kampschroeder, Lawrence, argued the cause, and was on the brief for defendant.

John R. Martin, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for defendant-intervenor.

Robert A. Coldsnow, Topeka, was on the brief amici curiae, for Kansas Senate, Kansas House of Representatives and Kansas Legislative Coordinating Council.

F. G. Manzanares, Topeka, was on the brief amicus curiar, for Arthur R. Diaz.

Jim J. Marquez, Topeka, and Robert A. Olsen, were on the brief amicus curiae, for the Office of the Governor.

SCHROEDER, Justice:

This is an original action in quo warranto brought pursuant to Art. 3, § 3, of the Kansas Construction and K.S.A. 60-1201 et seq.

At immediate issue is a position on the Kansas adult authority claimed by the rival appointees of the immediate past governor, Robert Docking, and the present governor, Robert Bennett.

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The legal issue is whether the provisions of K.S.A. 22-3707 providing for senatorial confirmation of gubernatorial appointments[217 Kan. 787] to the Kansas adult authority is constitutional. Involved in the determination of this issue is whether a vacancy existed on the Kansas adult authority to which Carolee Leek (plaintiff) could be appointed by Governor Bennett, and whether the Kansas Senate could lawfully non-confirm and reject the appointment of Franklin Riddle Theis (defendant) by Governor Docking. On May 9, 1975, this court also directed the parties to brief the question of whether the defendant, Franklin Riddle Theis, was deprived of any constitutional right by the failure of the Kansas Senate to afford him a hearing before acting upon his appointment to the Kansas adult authority.

The Kansas adult authority, hereafter referred to as the Authority, is a state agency created by legislative act appearing at K.S.A. 22-3707. (L.1970, ch. 129, § 22-3707; L.1972, ch. 317, § 80; and L.1973, ch. 339, § 60.) The Authority is designed to supersede the state board of probation and parole. The Authority consists of five members who serve four year terms, and who are 'to be appointed by the governor with the advice and consent of the senate.' The three members of the state board of probation and parole were to remain members of the newly created Authority. Provision was made for two new members to join the Authority with terms commencing July 1, 1974.

The facts are stipulated. On January 2, 1975, defendant, Franklin Riddle Theis, was appointed a member of the Authority by Robert Docking, then governor of the State of Kansas, for a term to expire on June 30, 1978. Since K.S.A. 22-3707 provides for the appointment of members of the Authority by the governor with the advice and consent of the Kansas Senate, on January 9, 1975, Governor Docking submitted to the senate a letter recommending the appointment of Mr. Theis. Although the letter was received by the president of the senate on January 10, 1975, the letter was not entered in the journal of the senate until March 25, 1975.

Prior to Governor Docking's recommendation being entered in the journal of the senate, the newly elected governor, Robert Bennett, in a letter to the president of the senate dated March 24, 1975, advised the senate of his desire to change the composition of the Authority and other boards to be representative of the geographical, racial and sex mix of our Kansas population, and generally responsive to the philosophical thrust of his new administration 'as it attempts to reorganize government, to reduce administrative costs, to increase the effectiveness of personnel and to carry forward those [217 Kan. 788] basic governmental programs that are so badly needed in this state.' (Journal of the Senate, March 25, 1975, p. 463.) In one March 24, 1975, letter to the senate, Governor Bennett supported senate...