State ex rel. Morrison v. Sebelius

Citation179 P.3d 366
Decision Date11 March 2008
Docket NumberNo. 98,691.,98,691.
PartiesSTATE of Kansas ex rel. Paul J. MORRISON, Attorney General of the State of Kansas, Petitioner, v. The Honorable Kathleen SEBELIUS, Governor of the State of Kansas, Respondent.
CourtUnited States State Supreme Court of Kansas

Stephen R. McAllister, solicitor general, argued the cause, and Jared S. Maag, deputy solicitor general, Kristafer R. Ailslieger, assistant solicitor general, and Paul J. Morrison, attorney general, were with him on the briefs for petitioner.

Jay P. Warren, of Bryan Cave LLP, of New York, New York, argued the cause, and Lynn S. McCreary and Kristi K. Wilhelmy, of Bryan Cave LLP, of Kansas City, Missouri, were on the briefs for respondent.

Megan E. Jennings, of Kansas City, Missouri, was on the brief for amicus curiae Representative Raj Goyle and Representative Jeff Whitham.

The opinion of the court was delivered by LUCKERT, J.:

During the 2007 Kansas legislative session, the legislature passed and the governor signed House Substitute for Senate Bill No. 244 (H.Sub.S.B.244), which substantially amended K.S.A. 21-4015 (Furse 1995), formerly known as the Kansas Funeral Picketing Act, and now, as amended, known as the Kansas Funeral Privacy Act, K.S.A. 21-4015. L.2007, ch. 111, secs. 1-6. Although the legislature repealed the Kansas Funeral Picketing Act, it did not make operative those substantive provisions of the Kansas Funeral Privacy Act regulating the time and place of protests at funerals. Rather, in a section the parties refer to as the judicial trigger provision, the legislature provided that the funeral protest provisions of the new legislation would not become operative unless and until this court or a federal court determined the funeral protest provisions were constitutional. K.S.A. 21-4015(i). In another provision, referred to as the judicial review provision, the legislature directed the attorney general to file a lawsuit challenging the constitutionality of the funeral protest provisions. K.S.A.2007 Supp. 75-702a.

This lawsuit is not the action suggested in those provisions, however. In this action, the attorney general challenges the constitutionality of the judicial trigger provision, arguing the legislature violated the separation of powers doctrine by directing the attorney general to file the lawsuit contemplated in the provision. This argument is constructed on two premises. First, according to the attorney general, the legislature usurped or intruded into executive and judicial powers by ordering the attorney general to file a lawsuit he believes would seek an unconstitutional remedy and, as a result, would lack merit. Second, the attorney general's conclusion regarding the merits of the suit is based upon an argument that the judicial trigger lawsuit would require a court to provide advice to the legislature as to whether the funeral protest provisions are constitutional and should become operative; he notes that courts do not have the judicial power to provide advisory opinions. If we agree with the attorney general on these points, he requests an order severing the judicial trigger provision from the Kansas Funeral Privacy Act.

These arguments are partially persuasive. The separation of powers doctrine prohibits the legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies. The funeral protest provisions cannot present an actual case or controversy because the provisions are inoperative; therefore, no one's privacy has been protected, no one's protest has been restricted, no one's liberty has been threatened, and no one's duty to enforce the provisions has been activated.

Nevertheless, the judicial trigger provision cannot be severed from the Kansas Funeral Privacy Act because severance would broaden the effect of the Act in a manner contrary to the express directions of the legislature. The legislature directed that the funeral protest provisions would become operative if and when determined constitutional. That determination has not been made, and it would violate the separation of powers doctrine to make the provisions operative in a manner contrary to the explicit directions of the legislature.

Quo Warranto Jurisdiction

Article 3, § 3 of the Kansas Constitution grants this court original jurisdiction in quo warranto actions. Quo warranto is an extraordinary remedy available when "any person shall usurp, intrude into or unlawfully hold or exercise any public office." K.S.A. 60-1202(1). In other words, a writ of quo warranto may issue when it is alleged that the separation of powers doctrine has been violated. A violation of the separation of powers doctrine can result when legislation permits one branch of government to usurp or intrude into the powers of another branch of government. If such a situation exists, the statute is unconstitutional. See, e.g., State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 64, 687 P.2d 622 (1984) (statute allowing legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolution was unconstitutional usurpation of executive powers).

In this case, the governor does not dispute this court's jurisdiction, the appropriateness of this dispute being raised in a quo warranto action, or the appropriateness of this issue being decided on relation of the attorney general against the governor of the state (see Kansas House of Representatives, 236 Kan. at 58, 687 P.2d 622). Moreover, the governor does not dispute the premise that a statute would be unconstitutional if it ordered the attorney general to seek a remedy, such as an advisory opinion, that was not within the power of a court.

What the governor does dispute is the attorney general's contention that the judicial trigger and review provisions would lead to an advisory opinion. The governor asserts that a controversy exists currently, meaning that resolution of the controversy would be within constitutionally granted judicial powers, and, consequently, the legislature has the power to direct the attorney general to file the lawsuit testing the Kansas Funeral Privacy Act's constitutionality.

To explain and analyze the parties' differing positions we will examine the statutory provisions; analyze the separation of powers doctrine as it relates to the interrelationship of the legislative, executive, and judicial branches; and apply those principles to the question of whether the legislature's directive to the attorney general violates the separation of powers doctrine.

Statutory Provisions

In arguing a present controversy exists, the governor's argument is based, in part upon section 6 of the Kansas Funeral Privacy Act, which provides the Act shall "take effect and be in force from and after its publication in the statute book." L.2007, ch. 111, sec. 6.

The impact of this provision is diluted by the so-called judicial trigger, which makes some of the Act's provisions inoperative. The judicial trigger provision states:

"(i) Amendments by this act to this section shall be applicable on and after whichever of the following dates is applicable:

(1) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in Kansas state court, amendments by this act to this section shall be applicable from and after the date the Kansas supreme court upholds the constitutionality thereof.

(2) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in federal court, amendments by this act to this section shall be applicable from and after the date of the judgment of the court upholding the constitutionality thereof." (Emphasis added.) K.S.A. 21-4015(i).

Among the provisions that are not operative because of the judicial trigger are those which make it unlawful to demonstrate "at any public location within 150 feet of any entrance to a cemetery, church, mortuary, or other location where a funeral is held or conducted, within one hour prior to the scheduled commencement of a funeral, during a funeral or within two hours following the completion of a funeral" or to interfere with a funeral procession or anyone's ability to exit or enter a funeral. K.S.A. 21-4015(e).

However, the judicial trigger does not cover section 2 of the Act, codified at K.S.A.2007 Supp. 60-1803, which relates to libel and slander occurring at a funeral. Thus, section 2 is operative and, in this regard, stands alone as the only operative, substantive provision.

All other operative provisions are procedural, including section 4, codified at K.S.A. 2007 Supp. 60-2102a(b)(2), which relates to appellate jurisdiction; section 5, L.2007, ch. 111, which repeals the previous Kansas Funeral Picketing Act; and section 3, codified at K.S.A.2007 Supp. 75-702a, which provides for judicial review of the substantive provisions. Section 3 states:

"In accordance with K.S.A. 75-702, and amendments thereto, the attorney general shall seek judicial determination of the constitutionality of K.S.A. 21-4015, as amended by L.2007, ch. 111, § 1, and amendments thereto. If the action authorized by this section is brought in a district court of this state, then the judgment of that district court shall be appealed directly to the Kansas supreme court as a matter of right." K.S.A.2007 Supp. 75-702a.

The combined effect of sections 1(i), 3, and 6, L.2007, ch. 111, is that the attorney general is under a current statutory obligation to challenge the constitutionality of the Kansas Funeral Privacy Act. This obligation creates a current controversy regarding whether the legislature's directive violates the separation of powers doctrine.

Separation of Powers Doctrine

The separation of powers doctrine is not expressly stated in either the United States or Kansas Constitutions. Yet,...

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