Sinclair v. Schroeder, 50308

• Decision Date: 15 November 1978
• Docket Number: No. 50308,50308
• Citation: 225 Kan. 3,586 P.2d 683
• Parties: Francis SINCLAIR, Petitioner, v. Hon. Alfred G. SCHROEDER, Respondent.
• Court: Kansas Supreme Court

Page 683

586 P.2d 683

225 Kan. 3

Francis SINCLAIR, Petitioner, v. Hon. Alfred G. SCHROEDER, Respondent.

No. 50308.

Supreme Court of Kansas.

Nov. 15, 1978.

Syllabus by the Court

1. With regard to district magistrate judges there is no conflict between the statutory provision for forfeiture of office contained in K.S.A. 1977 Supp. 20-337 and the statutory provision for removal for cause contained in K.S.A. 1977 Supp. 20-340(A ).

2. Office holding is a political privilege and before completion of the examination required of a district magistrate judge his or her right to continue in the office cannot be considered a vested right.

3. When an interest involving life, liberty and property is implicated the right to some kind of a prior hearing is mandated because of due process considerations emanating from the Fourteenth Amendment. However, a protected due process right must encompass the type of interest recognized under the due process clause of the Fourteenth Amendment. It must be a vested interest.

4. A district magistrate judge holding office by virtue of the temporary certificate provided for in K.S.A. 1977 Supp. 20-337 does not have a vested right in such office. In event such an incumbent fails to successfully complete the examination within the required eighteen month period forfeiture is automatic and the office becomes vacant.

5. It is not arbitrary or unreasonable for the legislature to specify formal procedures to determine the qualifications of lay persons to serve as district magistrate judges when their professional qualifications have not been independently determined by formal admission to the bar.

6. It is clear that the constitution reserves to the legislature the power to prescribe qualifications for all judges of the unified judicial system and it is no usurpation of judicial power for the legislature to exercise that legislative prerogative to prescribe such qualifications.

Larry Tittel of Smyth & Tittel, Ness City, was on brief, for petitioner.

Curt T. Schneider, Atty. Gen., and John R. Martin, First Asst. Atty. Gen., were on brief, for respondent.

FROMME, Justice:

This is an original action in quo warranto brought by a district magistrate judge whose office was declared vacant pursuant to K.S.A.1977 Supp. 20-337 for failure to successfully complete the examination required to qualify for that office.

The facts which gave rise to the present action were stipulated and agreed to by the parties. Francis Sinclair was elected to the office of District Magistrate Judge in Hodgeman County, Kansas, on November 2, 1976, for a term commencing on January 10, 1977. Hodgeman County is in the Twenty-fourth Judicial District of Kansas. In that district the judges of the district court, including magistrate judges, are elected under the election laws applicable to the election of county officers. Petitioner is not a lawyer and upon election to the office of district magistrate judge he was "issued a temporary certificate permitting such judge to commence upon the duties of office, conditioned that such judge becomes certified as being qualified to hold such office, as provided herein." K.S.A.1977 Supp. 20-337. This statute requires the supreme court to provide for an examination of those persons entering upon the duties of a district magistrate judge in order to ensure that each such person possess the minimum skill and knowledge necessary to carry out the duties of that office. The examination is given at least once each six months. The statute provides, if a district magistrate judge fails to successfully complete the examination within eighteen (18) months after the date said judge takes office, "said judge shall forfeit his or her office and the district magistrate judge position for which such judge was elected or appointed shall be vacant at the expiration of such eighteen-month period."

As previously stated, Judge Sinclair's term began January 10, 1977. The eighteen month examination period expired July 10, 1978. He was afforded opportunities on June 10, 1977, October 25, 1977, and June 9, 1978, to take the same examination given to all other magistrate judges. Review seminars were held in advance of each examination. Judge Sinclair was unable to take the June 10, 1977, examination due to personal health problems but on October 25, 1977, and again on June 9, 1978, examinations were undertaken and on each occasion the test papers were graded by the District Magistrate Judges' Certification Committee. On both October 25, 1977, and June 9, 1978, the certification committee certified to the supreme court that Judge Sinclair failed to demonstrate the minimum skills and knowledge necessary to carry out the duties of the office. Thereupon the respondent as Chief Justice of the Kansas Supreme Court issued an order, as provided in K.S.A.1977 Supp. 20-337, declaring the office vacant as of July 10, 1978.

Judge Sinclair stepped down from the magistrate judge position in Hodgeman County and filed the present petition for relief in the form of quo warranto praying that he be allowed to complete the four year term of office for which he had been elected. This court accepted original jurisdiction of the case. The Honorable Alfred G. Schroeder, respondent herein, did not participate in any decision of the court in this case. As the respondent he was directed to file an answer. Briefs were requested of and filed by both parties. Thereafter the parties waived oral argument in writing and agreed that the matter should proceed to final decision.

The petitioner challenges the order which declared the position of magistrate judge vacant in Hodgeman County on four grounds. First, he challenges the order on the ground that K.S.A.1977 Supp. 20-337, under which the position was declared vacant, conflicts with K.S.A.1977 Supp. 20-340(A ).

The pertinent part of 20-337 provides:

"Any person who takes office as district magistrate judge on January 10 1977, . . . and who has not been regularly admitted to practice law in Kansas, as required by subsection (C )(3) of K.S.A.1976 Supp. 20-334, shall be issued a temporary certificate permitting such judge to commence upon the duties of office, conditioned that such judge becomes certified as being qualified to hold such office, as provided herein. The supreme court shall provide by rule for the examination of such district magistrate judges, in order to ensure that each such district magistrate judge possesses the minimum skills and knowledge necessary to carry out the duties of such office. . . . If a district magistrate judge fails to successfully complete such examination within eighteen (18) months after the date said judge takes office, said judge shall forfeit his or her office and the district magistrate judge position for which such judge was elected or appointed shall be vacant at the expiration of such eighteen month period. . . ." Emphasis supplied.

The pertinent part of 20-340(A ) provides:

"On January 10, 1977, any person who becomes an associate district judge pursuant to the provisions of this act or who is elected to office in the position of associate district judge or district magistrate judge at the general election held in November of 1976 shall commence upon the duties of his or her office. Each such person shall have all the rights, privileges, powers and duties prescribed by law for such office. Each such judge elected in the November, 1976, general election shall serve for the term for which he or she was elected, unless said judge is removed for cause." Emphasis supplied.

Petitioner argues that the provision relating to removal for cause in 20-340(A ) conflicts with the provision for forfeiture in 20-337, and that the alleged conflict should be resolved by permitting removal only for cause. He argues that no cause has been demonstrated for his removal.

Both K.S.A.1977 Supp. 20-337 and 20-340(A ) are part of the same 1976 enactment, L.1976, ch. 146, appearing as §§ 22 and 19, respectively. These were contained in the comprehensive enactment providing the statutory implementation for the unified court system authorized by Article 3, § 1 of the Kansas Constitution (1977 Supp.). The legislature created three classes of judges of the district court, two of these, associate district judges and district magistrate judges, being newly created judicial offices. K.S.A.1977 Supp. 20-301a. In addition, the 1976 legislature prescribed the qualifications for each such class of judges. K.S.A.1977 Supp. 20-334(C ) sets forth the qualifications for the office held by petitioner.

"From and after January 10, 1977, any person who is elected, retained in office or appointed as a district magistrate judge shall:

"(1) Be a graduate of a high school or secondary school or the equivalent thereof;

"(2) be a resident of the county in which he or she is elected or for which he or she is appointed to serve; and

"(3) if not regularly admitted to practice law in Kansas, be certified by the supreme court, in the manner prescribed by K.S.A.1976 Supp. 20-337, as qualified to serve as a district magistrate judge."

These qualifications represent a clear commitment toward assuring a minimum level of competence among Kansas judges who are nonlawyers and have no formal legal education. In this same act the legislature provided that the terms of office of the new classes of judges of the district court would commence January 10, 1977. The act further provided for removal from office for cause.

The 1976 legislature recognized that many judges of county, probate and juvenile courts in the state who were not lawyers had performed their duties ably and responsibly, and their services should be retained. At the same time, the legislature wished to establish a formal procedure for determining which persons holding positions in the newly established class of district magistrate judges did possess the minimum skills and knowledge requisite to the performance of the duties...