Sedlak v. Dick, 70,792

CourtUnited States State Supreme Court of Kansas
Citation256 Kan. 779,887 P.2d 1119
Docket NumberNo. 70,792,70,792
PartiesMichael SEDLAK, Richard D. Woodworth, and John Ratliff, Petitioners, v. Joe DICK, Secretary of Human Resources, and George Gomez, Director of Workers Compensation, Respondents.
Decision Date13 January 1995

Page 1119

887 P.2d 1119
256 Kan. 779
Michael SEDLAK, Richard D. Woodworth, and John Ratliff, Petitioners,
Joe DICK, Secretary of Human Resources,
George Gomez, Director of Workers Compensation, Respondents.
No. 70,792.
Supreme Court of Kansas.
Jan. 13, 1995.

Page 1121

Syllabus by the Court

1. The legislative power of this state is vested in the legislature, and the delegation of such power to a private group or association is constitutionally impermissible.

2. Where a legislative act expressly repealing an existing statute and providing a substitute therefor is invalid, the repealing clause is also invalid unless it appears that the legislature would have passed the repealing clause even if it had not provided a substitute for the statute repealed.

3. The unconstitutional part of a legislative act may be severed from the remaining part or parts of the act if it is separate and independent, but not where they are so related that the latter is a condition of, a compensation for, or an inducement to, the former, or where it is clear the legislature would not have enacted one but for the other.

4. In an original action in mandamus and quo warranto challenging the constitutionality of certain provisions of K.S.A. 44-555b and K.S.A. 44-556, the record is examined and it is held: (1) K.S.A. 44-555b(e) and (f), which vest in the Kansas AFL-CIO and Kansas Chamber of Commerce and Industry the power to select members of the Workers Compensation Board, constitute an unconstitutional delegation of legislative power to a private association and render the statute invalid; (2) K.S.A. 44-551 and K.S.A. 44-556 are not severable from K.S.A. 44-555b and are therefore also invalid; and (3) the attempted repeal of K.S.A.1992 Supp. 44-551 and K.S.A.1992 Supp. 44-556 in L.1993, ch. 286, § 77 is invalid, and those statutes are still in full force and effect as they existed prior to the attempted amendment and repeal.

[256 Kan. 780] Patrick R. Nichols, Topeka, argued the cause and was on the briefs for petitioners.

William R. Sampson and David J. Waxse, of Shook, Hardy & Bacon, P.C., Overland Park, argued the cause, and John T. Bullock, of the same firm, was with them on the brief for respondents.

John M. Ostrowski, of McCullough, Wareheim & LaBunker, P.A., Topeka, and Bruce

Page 1122

Alan Brumley, of the same firm, were on the brief for amicus curiae Kansas AFL-CIO.

Jeffrey A. Chanay, of Entz & Chanay, Topeka, Kip A. Kubin, of Payne & Jones, Overland Park, and Keith C. Sevedge, Kansas City, were on the brief for amicus curiae Kansas Chamber of Commerce and Industry.

Vaughn Burkholder, of Foulston & Siefkin, Wichita, and Stephen M. Kerwick, of the same firm, were on the brief for amicus curiae Kansas Ass'n of Defense Counsel.


In this original action, petitioners Michael Sedlak, Richard D. Woodworth, and John Ratliff challenge the constitutionality of two provisions of the Workers Compensation Act as revised in 1993, K.S.A. 44-555b and K.S.A. 44-556. These sections establish the Workers Compensation Board (Board), provide for Board members to be selected by one representative of the Kansas Chamber of Commerce and Industry (KCCI) and one representative of the Kansas AFL-CIO, and subject Board actions to review by the Court of Appeals on questions of law only. Petitioners' initial filing in this court was called "Original Petition for Relief in Quo Warranto." In their brief, petitioners state that their action is "an original action in mandamus/quo warranto."

The pertinent allegations of the petition are:

p 2: "The Plaintiffs both have cases now pending before the Workers' Compensation Appeals Board. Michael Sedlak received an Award from Administrative Law Judge George R. Robertson October 13, 1993.... He was notified October 21, 1993 that the case was appealed to said Workers' Compensation Appeals Board."

p 3: "Richard D. Woodworth, the other Plaintiff, received a Preliminary Order for compensation from Administrative Law Judge Floyd V. Palmer on October 18, 1993 and was subsequently [256 Kan. 781] notified November 5, 1993 that the matter would be heard by the Workers' Compensation Appeals Board."

p 4: "[D]efendants are Joe Dick, lawfully appointed Secretary of Human Resources and George Gomez, Director of Workers' Compensation; ... the Workers' Compensation Board; Gary Peterson, Don Ramsay, Duncan Whittier, Gary Korte and Kenton Wirth."

p 5: "Plaintiffs ... suffer peculiar injury separate and apart from other citizens as a result of the existence of the Workers' Compensation Appeal Board.... Plaintiffs have proper standing. [Citations omitted.]"

p 6: "Relief in the form of Quo Warranto, injunction or mandamus is a proper remedy ... to question the constitutionality of statutes...."

p 12: "Most Kansas citizens are not members of the Kansas AFL-CIO or the Kansas Chamber of Commerce and Industry."

p 23: "This action is brought in the Appellate rather than District Courts. Adequate relief is not available in the District Court. Particularly unique and compelling circumstances justify exercise of concurrent jurisdiction by the courts of appeal in this state. The selection process here presents a patently unconstitutional effort by which the legislature has invaded the power of the Executive and delegated it to a private interest group. Such offenses to the doctrine of separation of powers and delegation of authority strike at the very heart of our system of government. As fundamentally anti-democratic measures, they will harm not only the two (2) Plaintiffs here but all citizens who have or will have claims made by or against them for workplace injuries. The harm here is vast, effecting [sic ] not only thousands of individuals, businesses and their insurers, but the fabric of government in Kansas itself. The magnitude of harm suffered represents the type of compelling circumstance and issue of great public importance and concern which have typified those cases wherein the Kansas Supreme Court has agreed to [hear] an original action in mandamus or Quo Warranto."

p 24: "The Court should exercise original jurisdiction in order to determine this issue as a matter of public policy. If litigated [256 Kan. 782] through the District Courts, substantial delay would occur and, as a result, scores if not hundreds of decisions will be made by the Workers' Compensation Appeals Board....

Page 1123

Delay in determining this issue serves no end."

p 25: "The simplicity of the factual issues argues in favor of the exercise of original jurisdiction. The issues before this Court require very little in the way of a factual record. Such a record will not consist of controverted facts but will, of necessity, be based on stipulations."

p 26: "Since Woodworth cannot appeal the decision of the Board (See Senate Bill 307, Section 58) he has no other remedy at law."

On June 20, 1994, this court granted petitioners' motion to name an additional petitioner, John Ratliff. In support of his being added, the petitioners stated:

"1. John Ratliff was the Claimant in Ratliff v. Wichita Coca-Cola Bottling Company and Travelers Insurance Company, Docket 179,931.

"2. ... [T]he Workers Compensation Board ... reversed the decision of Administrative Law Judge John D. Clark and denied the Claimant the benefits previously awarded.

"3. John Ratliff is without other legal recourse to seek review of this decision. K.S.A. 44-534a specifically provides[: ']a finding with regard to a disputed issue ... or whether certain defenses apply, shall be considered jurisdictional, and shall be subject to review by the board. Such review by the board shall not be subject to judicial review.'

"4. Because the benefits granted by the ALJ and taken away by the Board are not subject to further judicial review, John Ratliff has sustained a unique and peculiar injury ... different from the public at large."

Respondents admit to pp 3, 4, 6, and part of p 12 of the petition and agree that Woodworth has standing, this action should be resolved promptly, this court has original jurisdiction, and the material facts are not in dispute. Respondents further respond that as to Michael Sedlak, the Board increased his award, which he accepted and his employer agreed to pay, resulting in Sedlak's claim being moot.

The parties stipulated to the "admissibility" of documents attached to petitioners' brief, respondents' memorandum in support of response to the petition, and the joint stipulation. They also stipulated to the following facts:

[256 Kan. 783] "a. The present members of the Workers' Compensation Appeals Board Nominating Committee are Terry Leatherman and Wayne Maichel. They are the principal lobbyists for the Kansas Chamber of Commerce and Industry ('KCCI') and the AFL-CIO Kansas Chapter, respectively.

"b. The Kansas Chamber of Commerce and Industry represents 2,872 total members, KCCI members are individual businesses or local organizations, such as local chambers of commerce, KCCI members employ and/or represent approximately 161,000 business men and women in the State of Kansas.

"c. The Kansas State AFL-CIO has approximately 110,000 members as of March 1993.

"d. The National Federation of Independent Businesses ('NFIB') supported the workers' compensation legislation at issue in this case. The NFIB represents 8,271 businesses in the State of Kansas....


"NFIB members employ approximately 100,000 total employees.

"e. The KCCI and NFIB are made up of members and organizational members. Hal Hudson, Director of the NFIB, estimates that, through their members and organizational members, the KCCI and NFIB together represent 211,000 business men and women in the state.

"4. John Burton's Workers' Compensation Monitor published July/August 1992 contains a summary of data collected which indicates that approximately 89% of Kansas employees are eligible for workers compensation coverage based on Social Security Administration...

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