McAlister v. City of Fairway
| Decision Date | 24 July 2009 |
| Docket Number | No. 99,809.,No. 99,808.,99,808.,99,809. |
| Citation | 212 P.3d 184 |
| Parties | James McALISTER, et al., Appellants, v. CITY OF FAIRWAY, Kansas, et al., Appellees. |
| Court | Kansas Supreme Court |
Reid F. Holbrook, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Michael T. Jilka and Judd L. Herbster, of the same firm, were with him on the briefs for appellants.
Michael J. Davis, of Stinson Morrison Hecker, LLP, of Kansas City, Missouri, argued the cause, and Stephen P. Chinn, of the same firm, was with him on the brief, and Michael K. Seck, of Fisher Patterson Sayler & Smith, LLP of Overland Park, argued the cause and was with them on the brief for appellees.
John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, and Dana Berliner and William H. Mellor, of Institute for Justice, of Arlington, Virginia, were on the brief for amici curiae Institute for Justice and the Castle Coalition.
Sandra Jacquot, general counsel, and Donald L. Moler, Jr., executive director, of League of Kansas Municipalities, of Topeka, were on the brief for amicus curiae League of Kansas Municipalities.
This is an appeal from a district court's decision on cross-motions for summary judgment involving two proposed city ordinances advanced by citizens of the City of Fairway, Kansas (City), through the initiative and referendum authority granted in K.S.A. 12-3013. The district court ruled the ordinances were not permitted by the statute. It is undisputed the required petitions accompanying these proposed ordinances are in proper form and carry sufficient genuine signatures from qualified local electors. The controversy arises from the ordinances' subject matter because state law excludes certain topics from the initiative and referendum process. See K.S.A. 12-3013(e).
The first proposed ordinance seeks to restrict the City's ability to relocate its city hall facilities to certain locations within the City's boundaries. The second proposes to not allow the use of rezoning, eminent domain, and condemnation, as well as restricting commercial, business, apartment, condominium, or mixed use development to certain locations within the City. The City refused to adopt the ordinances or advance them for public vote on the basis of K.S.A. 12-3013(e)(1), which states: "The provisions of this section shall not apply to: (1) Administrative ordinances." This litigation followed. The district court agreed with the City and determined both proposed ordinances were administrative. Our task is to decide whether either ordinance is administrative in nature.
We affirm. In reaching this decision, we review and revise the guidelines to be applied when courts are asked to determine whether an ordinance proposed under the initiative and referendum statute is administrative.
The material facts are not in dispute. Beginning in 2001, the governing body for the City began discussing the need for a new city hall building. Those discussions spanned the next few years. During that time, the City organized task forces to assess municipal needs, commissioned studies to review city services and associated issues, and conducted related public forums. The City also hired an architectural firm to complete a site analysis, validate a space and needs study, prepare a conceptual design with cost information, and develop schematic designs. To finance the project, the City sought advice regarding municipal bonds.
During this conceptualization process, consideration was given to locating the new city hall facility on the southeast corner of Shawnee Mission Parkway and Mission Road. This led to some citizen opposition. At another point, the City entered into discussions with the State Historical Society and the Shawnee Indian Museum about locating the new facility on the Shawnee Indian Museum grounds. This, too, generated opposition.
James McAlister, Klaus Ulrich, and James Kernell (Appellants) are residents of the City. They prepared two proposed city ordinances and organized supporting petition drives in an effort to invoke the statutory initiative and referendum process set out in K.S.A. 12-3013. One petition was entitled "Restrictions on the Future Relocation of the City of Fairway City Hall" (the City Hall Petition.) The other was entitled "Restrictions on the Future Commercial Development of Residential Property in the City of Fairway, Kansas" (the Commercial Development Petition, also referred to by the trial court as the Eminent Domain Petition). To appreciate the controversy here, it is necessary to set out the language in the proposed ordinances.
The City Hall Petition, in pertinent part, states:
The Commercial Development Petition, in pertinent part, states:
Because it will impact our analysis, we need to note at this juncture that the record reflects 90.1 percent of the land in the City is zoned for residential use, while 5.6 percent is zoned commercial and 4.3 percent is zoned for public purposes. Therefore, the scope of the land area within the City protected by these proposals is considerable, as are the limitations imposed on the City.
As required by statute, both petitions were submitted for approval as to form to the county counselor. In December 2005, the county counselor gave that approval but reserved judgment as to whether either petition contained valid subject matter. On April 4, 2006, the Johnson County Election Office verified there were sufficient qualified voter signatures to satisfy the statutory requirements. We note the City is organized as a city of the second class, which means each petition had to carry signatures equal in number to 40 percent of the electors who voted at the last preceding regular city election. See K.S.A. 12-3013(a).
But the Fairway city attorney advised the mayor and city council the petitions were administrative in nature and, therefore, not subject to initiative and referendum under K.S.A. 12-3013(e)(1). Based on this advice, the City took no further action on either petition. The City's refusal prompted this litigation.
Appellants filed two lawsuits—one for each initiative petition. In one lawsuit, appellants sought a declaratory judgment that the City Hall Petition was legislative in nature and, therefore, authorized by statute as an appropriate subject for the initiative and referendum process. They also sought an injunction, mandamus, and monetary damages for the City's alleged violation of 42 U.S.C. § 1983 (2006). In the other lawsuit, Appellants requested a declaratory judgment that the Commercial Development Petition was legislative in nature and other equitable relief in the nature of injunction and mandamus. In both cases, the defendants were the City and City Clerk Kathi Robards.
The district court consolidated the two cases. Thereafter, the parties filed cross-motions for summary judgment advancing differing conclusions about whether the petitions' subject matters were administrative or legislative. The City also sought to have the Commercial Development Petition declared void as being unconstitutionally vague and ambiguous.
On November 19, 2007, the district court granted the City's motions for summary judgment as to both proposed ordinances, finding each was administrative and not subject to initiative and referendum based on K.S.A. 12-3013(e)(1). In so deciding, the district court determined both petitions had the same purpose, which, it said, was to restrict the City's decision-making authority regarding the city hall building relocation.
To reach its conclusions regarding the proposed ordinances' administrative character, the district court applied this court's prior case law as stated in Rauh v. City of Hutchinson, 223 Kan. 514, 575 P.2d 517 (1978), and City of Wichita v. Kansas Taxpayers Network Inc., 255 Kan. 534, 874 P.2d 667 (1994) (citing City of Lawrence v. McArdle, 214 Kan. 862, 522 P.2d 420 [1974]). But as the district court viewed it, Rauh offered a separate test from the guidelines set out in Kansas Taxpayers Network and McArdle, so it applied both independently—reaching the...
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