Legislative Coordinating Council v. Stanley

• Decision Date: 17 April 1998
• Docket Number: No. 79533,79533
• Citation: 264 Kan. 690,957 P.2d 379
• Parties: The LEGISLATIVE COORDINATING COUNCIL, Petitioner, v. The Honorable Dan STANLEY, Secretary of the Department of Administration, and Shirley A. Moses, Director of Accounts and Reports, Respondents.
• Court: Kansas Supreme Court

Page 379

957 P.2d 379

264 Kan. 690

The LEGISLATIVE COORDINATING COUNCIL, Petitioner, v. The Honorable Dan STANLEY, Secretary of the Department of

Administration, and Shirley A. Moses, Director of

Accounts and Reports, Respondents.

No. 79533.

Supreme Court of Kansas.

April 17, 1998.

Syllabus by the Court

1. 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.

2. Mandamus is a 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, notwithstanding the fact that another adequate remedy at law exists.

3. The provisions of K.S.A. 25-4169a are examined, and it is determined that the costs and attorney fees in this election contest are not campaign expenses spent for the purpose of influencing the election. Rather, the expenses were incurred for the purpose of insuring that the ballots be accurately counted and that an appropriate decision be made by the Kansas House of Representatives under the provisions of K.S.A. 25-1451 and K.S.A 25-1452.

4. The interpretation of a statute is a question of law, and this court's review is unlimited. In interpreting a statute, the fundamental rule is that the intent of the legislature governs, where it can be ascertained.

5. Attorney fees are not a part of costs, absent express statutory authority. Where the legislature uses the word "costs," it means the fees and charges of the court such as filing fees, fees for service of process, and the like. Therefore, the use of the words "all costs" in K.S.A. 25-1452 does not include attorney fees.

6. Just as the legislature could delegate under the provisions of K.S.A. 25-1452 a discretionary decision on assessment of costs to the State, so also may the legislature decide in its discretion that the "interests of justice" call for assessment of attorney fees under the provisions of K.S.A. 25-1451.

7. The Legislature Coordinating Council (LCC) is not a common-law agent of the legislature. Rather, it is an administrative agency created by statute to which certain powers have been delegated.

8. Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes; therefore, any exercise of authority claimed by the agency must come from within the statutes. There is no general or common-law power that can be exercised by an administrative agency.

9. The provisions of K.S.A. 46-1201 et seq. and K.S.A. 46-1202, involving the creation of the LCC and its general powers and functions, are interpreted and discussed.

10. The language that the LCC is to represent the legislature when the legislature is not in session was added to K.S.A. 46-1202 in 1973. The legislature intended by this amendment to confer the broad power and discretion in the LCC to act on the legislature's behalf when it was not in session.

11. The vouchers submitted by the LCC for payment of costs and attorney fees in this case represent a valid expenditure from the operational budget of the legislature and constitute an operational expenditure under the provisions of H.B.2085.

Robert J. Nugent, Assistant Revisor of Statutes, argued the cause, and Norman J. Furse, Revisor of Statutes, and Renae Jefferies, Assistant Revisor of Statutes, were with him on the briefs, for petitioner.

John W. Campbell, Senior Deputy Attorney General, argued the cause, and Robert E. North, Staff Attorney, Kansas Department of Administration, and Carla J. Stovall, Attorney General, were with him on the brief, for respondents.

DAVIS, Justice:

This is an original action for writ of mandamus brought by the Legislative Coordinating Council (LCC) against respondents Dan Stanley, the Secretary of the Department of Administration, and Shirley A. Moses, the Director of Accounts and Reports. The LCC seeks an order of mandamus directing the director of accounts and reports to pay vouchers submitted by the LCC for court costs and attorney fees in an election contest for a seat in the Kansas House of Representatives.

The subject matter of this case originally came before this court on the LCC's petition for writ of mandamus in Legislative Coordinating Council v. Frahm, 262 Kan. 144, 936 P.2d 267 (1997). This court did not reach the merits of the case, determining instead that the LCC had no authority or standing to bring an action in mandamus while the legislature was in session. 262 Kan. at 155, 936 P.2d 267. The legislature adjourned on May 27, 1997. The present action was commenced while the legislature was not in session. In the interim, Sheila Frahm has been succeeded as Secretary of the Department of Administration by Dan Stanley, which accounts for the change in heading in this case.

The parties in Legislative Coordinating Council v. Frahm stipulated to the facts and legal issues for resolution. With a few minor additions, the facts and legal issues remain the same in this case. The stipulated facts from Legislative Coordinating Council v. Frahm are as follows:

" '1. On December 21, 1994, Joe Shriver was declared the winner of the election for 79th District State Representative over Danny Jones by then Kansas Secretary of State, Bill Graves.

" '2. Jones filed suit contesting the elections and on January 6, 1995, the Cowley County District Court determined the election to be a tie vote and under K.S.A. 25-1452 waived the costs of the contest and held, in part:

"3. In the interests of justice, the costs of this contest are hereby waived and should therefore be paid by the State of Kansas in a special appropriation made therefore, pursuant to K.S.A. 25-1452. It is the specific recommendation of this court that the costs of this case include a reasonable sum for attorneys' fees for both the parties.'

" '3. On January 30, 1995, Speaker Shallenburger appointed a select committee of six members of the Kansas House of Representatives to hear the matter and report to the full House pursuant to K.S.A. 25-1451(b).

" '4. On February 9, 1995, the select committee reported to the membership of the House that the contested election had resulted in a tie vote between Jones and Shriver. The committee recommended that the outcome of the election should be decided by lot. The report of the select committee did not mention payment of court costs or attorneys' fees in this matter.

" '5. On February 10, 1995, the Speaker announced that by mutual agreement of the candidates and concurrence of the " '6. During the 1995 legislative session, both Senate Bill No. 95 and House Bill No.2085 contained appropriations provisions for Legislative expenses. HB 2085 did not mention payment of court costs or attorneys' fees in this matter. SB 95 was amended by motion of the House Minority Leader to specifically appropriate money to pay Jones' and Shriver's attorneys' fees. The day after SB 95 was so amended the full House adopted the conference committee report on HB 2085. HB 2085, which included appropriations for legislative operational costs, became law on July 1, 1995.

leadership of the Republican and Democratic parties in the House, the election for the Office of Representative of the 79th District would be determined by drawing lots. The announcement, as stated in the Journal of the House, did not mention payment of court costs or attorneys' fees in this matter. Jones won the drawing and was seated.

" '7. On motion of Senator Bogina to non-concur to the House amendments to SB 95, a conference committee was appointed. Senators Bogina, Emert and Rock, as well as Representatives Jennison, Carmody, and Helgerson met as the conference committee on SB 95. On two occasions the committee agreed to disagree and SB 95 remained in conference committee during the 1995 legislative session.

" '8. On May 30, 1995, Speaker Pro Tem Susan Wagle requested an Attorney General's Opinion asking whether either HB 2085 or its 1994 predecessor (1994 Kan. Sess. Laws Ch. 255) authorized the LCC to pay Jones' and Shriver's court costs and attorneys' fees. On June 30, [1995], the Attorney General opined: "The costs incurred in the contest of an election in the seventy-ninth representative district may not be paid for from appropriation set forth in L.1994, ch. 255, § 3 or section 3 of 1995 house bill no.2085."

" '9. On August 21, 1995, Speaker Shallenburger pointed out to the Council that because 1995 Senate Bill No. 95 was not passed by the Legislature, the court costs, transcription expenses and attorneys' fees in the contested election case of Jones v. Shriver, District Court of Cowley County, Kansas, had not been paid. Speaker Shallenburger moved that the court costs, transcription expenses; and attorney fees as specified in 1995 Senate Bill No. 95, (as amended by House Committee of the Whole) be paid from the operations (including official hospitality) account of the Legislature. Representative Sawyer seconded the motion. In discussion, members of the Council considered the statute relating to payment of costs of contests of elections; that the district judge who heard the case ordered the costs of the election contest to be paid by the state and recommended that the costs of the case include a reasonable sum for attorney fees for both parties; an opinion of the Attorney General on the matter; the amount of the costs, including attorney fees, authorized for payment in 1995 Senate Bill No. 95 (as amended by House Committee of the Whole); and that 1995 Senate Bill No. 95 (as amended by House Committee of the Whole) authorized the payment of attorney fees in the matter from the operations (including official hospitality) account of the Legislature. The motion carried. Senator Moran voted against the motion.

" '10. On August 24, 1995, the LCC...