State ex rel. Schmidt v. Kelly

• Decision Date: 10 May 2019
• Docket Number: No. 121,061,121,061
• Citation: 441 P.3d 67
• Parties: STATE EX REL. Derek SCHMIDT, Attorney General, Petitioner, v. Governor Laura KELLY, in Her Official Capacity, Chief Justice Lawton R. Nuss, in His Official Capacity, and Kansas Senate, Respondents.
• Court: Kansas Supreme Court

441 P.3d 67

STATE EX REL. Derek SCHMIDT, Attorney General, Petitioner,

v.Governor Laura KELLY, in Her Official Capacity, Chief Justice Lawton R. Nuss, in His Official Capacity, and Kansas Senate, Respondents.

No. 121,061

Supreme Court of Kansas.

Opinion filed May 10, 2019.

Derek Schmidt, attorney general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, M.J. Willoughby, assistant attorney general, and Kurtis Wiard, assistant attorney general, were with him on the brief for petitioner.

Clay Britton, chief counsel, Office of the Governor, argued the cause, and was on the brief for respondent Governor Laura Kelly.

J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, appeared, and Samuel A. Green, of the same firm, was with him on the responses for respondent Chief Justice Lawton R. Nuss.

Jeffrey R. King, of Sage Law, LLP, of Overland Park, argued the cause and was on the brief for respondent the Kansas Senate.

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

This is an expedited original action in quo warranto brought by the State on relation of the Attorney General against Governor Laura Kelly, Chief Justice Lawton R. Nuss, and the Kansas Senate concerning statutory procedures and obligations to fill a vacancy on the Kansas Court of Appeals. Controversy arose after an appointee purported to withdraw shortly after the Governor announced the appointment. Disputes now abound whether anyone has authority to take another step in the process. An additional complication is presented because the Governor announced a new appointment to the fill the same vacancy after this lawsuit was filed.

The controlling statute is K.S.A. 2018 Supp. 20-3020(b), which provides in pertinent part:

"No person appointed pursuant to subsection (a) shall assume the office of judge of the court of appeals until the senate, by an affirmative vote of the majority of all members of the senate then elected or appointed and qualified, consents to such appointment. The senate shall vote to consent to any such appointment not later than 60 days after such appointment is received by the senate .... In the event a majority of the senate does not vote to consent to the appointment, the governor, within 60 days after the senate vote on the previous appointee, shall appoint another person possessing the qualifications of office and such subsequent appointment shall be considered by the senate in the same procedure as provided in this section. The same appointment and consent procedure shall be followed until a valid appointment has been made. ... If the senate fails to vote on an appointment within the time limitation imposed by this subsection, the senate shall be deemed to have given consent to such appointment. " (Emphases added.)

It is undisputed the Governor had to make her appointment to fill the Court of Appeals vacancy within 60 days of the vacancy in order to comply with K.S.A. 2018 Supp. 20-3020(a)(4), that she made the appointment on the 60th day, and her office hand-delivered documentation to that effect to the Senate Majority Leader's office. As explained below, we hold those actions effectively began the statutory 60-day Senate confirmation process as to the first appointee and that the statute makes no provision for a withdrawal once an appointment is made. To infer an ability to withdraw requires adding words to the statute, which is something courts avoid under circumstances such as this. See Nauheim v. City of Topeka , 309 Kan. 145, 150, 432 P.3d 647 (2019) ("The court will not speculate about legislative intent and will not read the statute to add something not readily found in it."); Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs. , 290 Kan. 446, 464-65, 228 P.3d 403 (2010) ("[A]ppellate courts cannot delete vital provisions or add vital omissions to a statute if the legislature failed to enact the change as intended under any reasonable interpretation of the language used, regardless of the legislature's intention.").

We further hold that K.S.A. 75-4315b(c), which generally authorizes that "[a]n appointing authority may withdraw an appointment from consideration by the senate at any time before confirmation," is inapplicable to Court of Appeals vacancies. Arguments that this more general statute supplies withdrawal procedures missing from K.S.A. 2018 Supp. 20-3020 are unavailing. K.S.A. 2018 Supp. 20-3020(b) plainly provides the only way for an appointment to fail is by the Senate's vote. Accordingly, the Governor's new appointment is ineffective because there may be only one appointee at a time. As a matter of law, the second appointment must be treated as if it never happened.

But before discussing the merits, we address sua sponte whether the Senate is properly named as a party to this quo warranto action. And for the reasons stated below, we hold the Senate is not a proper or necessary party and dismiss it from this case. That said, we necessarily considered the Senate's legal arguments in the course of analyzing the applicable statutes.

FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. Judge Patrick D. McAnany retired from the Kansas Court of Appeals effective January 14, 2019. Sixty days later, on March 15, Governor Kelly announced her appointment of District Court Judge Jeffry Jack to the vacancy created by that retirement. Later that same day, the Governor's appointments coordinator hand-delivered documents signed by the Governor indicating the nature of Judge Jack's appointment along with an information packet about him to the Senate Majority Leader's office. This delivery method and the type of documents supplied were typical of the process generally used for gubernatorial appointments subject to Senate confirmation.

By letter dated March 18, Judge Jack announced he was withdrawing from his appointment at the Governor's request. The following day, the Governor conveyed to the Senate Majority Leader that Judge Jack had withdrawn at her request. She also informed the Majority Leader she would appoint someone else to fill the McAnany vacancy within 60 days. The facts prompting Judge Jack's purported withdrawal, while highly publicized, are not part of our stipulated record.

After the announced withdrawal, the Governor, Senate President Susan Wagle, and the Attorney General disagreed about what could be done next to fill the McAnany vacancy. The State then brought this original action in quo warranto on relation of the Attorney General asking this court to determine who holds the appointing authority, if anyone, under the circumstances.

We granted a motion to expedite. The State, Governor, and Senate filed briefs addressing the case's merits. The Chief Justice filed a response expressing his intention to remain neutral and to refrain from advocating a position on the merits. The parties entered a stipulation of facts.

On April 30, Governor Kelly announced she appointed Sarah Warner to fill Judge McAnany's vacancy.

DISCUSSION

Article III, section 3 of the Kansas Constitution grants the Supreme Court original jurisdiction over actions in quo warranto. Relief in quo warranto is discretionary. We may entertain the current proceeding if we determine the issue is of sufficient public concern. State ex rel. Stephan v. Kansas House of Representatives , 236 Kan. 45, 53, 687 P.2d 622 (1984). All agree this controversy over an appellate judge's timely appointment presents a matter of significant public concern.

An action in quo warranto demands that an individual or corporation show by what authority it has engaged in a challenged action. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 656, 367 P.3d 282 (2016). K.S.A. 60-1202(1) provides an action in quo warranto may be brought in the Supreme Court: "When any person shall usurp, intrude into or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state." This action challenges the Governor's attempt to appoint Warner to fill the Court of Appeals vacancy.

The Senate's capacity to be sued

This court ordered the parties to address whether they object to the capacity of any party to sue or be sued in this quo warranto action. None object. Nevertheless, the legal question concerning whether the Legislature, or one house of the Legislature, can be sued is unsettled and it is legitimate for this court sua sponte to consider if the Senate has the capacity to be involved in this litigation.

In Kansas House of Representatives , 236 Kan. at 46, 687 P.2d 622, the State filed an original action in both mandamus and quo warranto against the Kansas House of Representatives, the Senate, and Governor Carlin. It challenged the constitutionality of a statute that allowed the Legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolution without presentment to the Governor. The lawsuit was brought not only to test the statute's validity but also to challenge the Legislature's previous actions under the statute.

The Legislature moved to dismiss the case against it on various grounds—such as sovereign immunity, insufficient service of process, and immunity from suit under the Speech or Debate Clause in Article II, section 22 of the Kansas Constitution. The court held (1) sovereign immunity did not protect governmental entities—including the legislative body—from actions for equitable or extraordinary relief; (2) "[s]ervice of process upon the presiding officers of the two houses of the legislature satisfies the purpose of the concept of process and meets the requirements of due process"; and (3) because the action was brought to challenge "the validity of the action taken by the legislature pursuant to the statute," which did "not fall within the sphere of legitimate...